Chapter 1
Employment Relationship And Practices

Part 1
Hiring Practices

50-1-101. Memorandum of understanding with the department of homeland security for enforcement of federal immigration laws.

  1. For purposes of enforcing federal immigration laws, including, if applicable, federal laws relating to the employment of illegal aliens, the legislative body of a municipality or county, or the chief law enforcement officer of the county upon approval by the governing legislative body, may enter into a written agreement, in accordance with federal law, between the municipality or county and the United States department of homeland security concerning the enforcement of federal immigration laws, detention and removals, and investigations in the municipality or county.
  2. If a memorandum of understanding with the United States department of homeland security is executed pursuant to subsection (a), municipal and county law enforcement officers shall be designated from local law enforcement agencies who, by written designation and recommendation of a commanding officer, shall be trained pursuant to the memorandum of understanding. Funding for the training shall be provided pursuant to the federal Homeland Security Appropriation Act of 2006, P. L. 109-90, or subsequent federal funding sources.

Acts 2007, ch. 529, § 2.

Compiler's Notes. Former § 50-1-101 (Acts 1875, ch. 93, §§ 1, 2; Shan., §§ 4337, 4338; Code 1932, §§ 8559, 8560; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), §§ 50-201, 50-202), concerning enticing away employees, was repealed by Acts 1992, ch. 599, § 1, effective July 1, 1992.

Acts 2007, ch. 529, § 3 provided that the commissioner is authorized to promulgate rules and regulations to effectuate the purposes of the act. The rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Law Reviews.

An Empirical Analysis of Noncompetition Clauses and Other Restrictive Postemployment Covenants, 68 Vand. L. Rev. 1 (2015).

NOTES TO DECISIONS

1. County Sheriff.

Memorandum of Agreement (MOA) between the United States Immigration and Customs Enforcement and the Metropolitan Government of Nashville and Davidson County, Tennessee, by and through the Davidson County Sheriff's Office, did not violate the Charter of Nashville and Davidson County because the sheriff had authority under the Charter to perform the duties enumerated in the MOA; while Nashville and Davidson County, Tenn., City Charter § 16.05 made the police chief the principal conservator of the peace, it did not expressly prohibit the sheriff from engaging in all activities that could conceivably be considered law enforcement, and the language of the Charter clearly contemplated that the principal conservator of the peace was not the only conservator of the peace. Renteria-Villegas v. Metro. Gov't, 382 S.W.3d 318, 2012 Tenn. LEXIS 734 (Tenn. Oct. 4, 2012).

Memorandum of Agreement between the United States Immigration and Customs Enforcement and the Metropolitan Government of Nashville and Davidson County, Tennessee, by and through the Davidson County Sheriff's Office, did not violate T.C.A. § 50-1-101(b) because the Charter did not prohibit the sheriff from engaging in all law enforcement functions. Renteria-Villegas v. Metro. Gov't, 382 S.W.3d 318, 2012 Tenn. LEXIS 734 (Tenn. Oct. 4, 2012).

50-1-102. False or deceptive representations in procuring employees — Penalty — Hiring armed guards — Failure to have permit — Penalty.

    1. It is unlawful for any person to induce, influence, persuade or engage workers to change from one place to another in this state, or to bring workers of any class or calling into this state to work in any type of labor in this state through or by means of false or deceptive representations, false advertising or false pretenses, concerning the kind and character of the work to be done, or the amount and character of compensation to be paid for the work, or the sanitary or other conditions of the employment, or as to the existence or nonexistence of a strike or other trouble pending between employer and employees, at the time of or prior to the engagement.
    2. Failure to state in any advertisement, proposal or contract for the employment of workers that there is a strike, lockout or other labor trouble at the place of the proposed employment, when in fact the strike, lockout or other labor trouble then actually exists at the place of the proposed employment, is deemed false advertising and misrepresentation for the purposes of this section.
  1. A violation of subsection (a) is a Class B misdemeanor.
    1. Any worker who is influenced, induced or persuaded to engage with any persons mentioned in subsection (a), through or by means of any of the things prohibited in subsection (a), has a right of action for all damages that the worker has sustained in consequence of the false or deceptive representations, false advertising, and false pretenses used to induce the worker to change the worker's place of employment, against any person who, directly or indirectly, causes the damage.
    2. In addition to all actual damages the worker may have sustained, the worker is entitled to recover such reasonable attorney's fees as the court shall fix, to be taxed as costs.
    1. Any person who, in this or another state, hires, aids, abets, or assists in hiring, through agencies or otherwise, persons to guard with arms or deadly weapons of any kind for any such purpose, without a permit from the governor of this state, commits a Class E felony.
    2. Nothing contained in subdivision (d)(1) shall be construed to interfere with the right of any person, in guarding or protecting the person's private property or private interests, as is now provided by law.
  2. This section shall be construed only to apply in cases where workers are brought into this state, or induced to go from one place to another in this state by any false pretenses, false advertising or deceptive representations, or brought into this state under arms, or removed from one place to another in this state under arms.

Acts 1901, ch. 104, §§ 1-4; Shan., §§ 6886a1-6886a4; Code 1932, §§ 11363-11366; T.C.A. (orig. ed.), §§ 50-204 — 50-207; Acts 1989, ch. 591, §§ 45, 112.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

Private protective services, title 62, ch. 35.

Law Reviews.

Employee Investigations: Representation Rights Expanded to Nonunion Employees (Mark H. Floyd), 36 No. 10 Tenn. B.J. 13 (2000).

No Harm, No Fraud: The Invalidity of State Fraud Claims Brought Against Employment Testers, 53 Vand. L. Rev. 1687 (2000).

Perceived Disabilities, Social Cognition, and “Innocent Mistakes,” 55 Vand. L. Rev. 481 (2002).

Proving an Employer's Intent: Disparate Treatment Discrimination and the Stray Remarks Doctrine After Reeves v. Sanderson Plumbing Products, 55 Vand. L. Rev. 219 (2002).

Collateral References.

Legality of peaceful labor picketing on private property. 10 A.L.R.3d 846.

Libel and slander: employer's privilege as to communications to news media concerning employees. 52 A.L.R.3d 739.

Validity and construction of statutes punishing commercial bribery. 58 A.L.R. Fed. 797.

50-1-103. Employment of illegal aliens.

  1. As used in this section, unless the context otherwise requires:
    1. “Commissioner” means the commissioner of labor and workforce development;
    2. “Department” means the department of labor and workforce development;
    3. “Employ” or “employment” means any work engaged in for compensation in money or other valuable consideration and for which a person paying the compensation for the work performed is required to file a W-2 wage and tax statement with the federal internal revenue service;
    4. “Illegal alien” means a person who is, at the time of employment, neither an alien who is lawfully admitted for permanent residence in the United States pursuant to the federal Immigration and Naturalization Act, compiled in 8 U.S.C. § 1101 et seq., nor authorized to be employed by the federal Immigration and Naturalization Act or the United States attorney general;
    5. “Knowingly” means having actual knowledge that a person is an illegal alien or having a duty imposed by law to determine the immigration status of an illegal alien and failing to perform that duty;
    6. “Lawful resident alien” means a person who is entitled to lawful residence in the United States pursuant to the federal Immigration and Naturalization Act;
    7. “Lawful resident verification information” means the documentation that is required by the United States department of homeland security when completing the employment eligibility verification form commonly referred to as Form I-9. Documentation that later proves to be falsified, but that at the time of employment satisfies the requirements of Form I-9, is lawful resident verification information;
    8. “License” means any certificate, approval, registration or similar form of permission required by law; and
    9. “Person” means individual, corporation, partnership, association or any other legal entity.
  2. A person shall not knowingly employ, recruit or refer for a fee for employment an illegal alien.
  3. A person has not violated subsection (b) with respect to a particular employee if the person requested from the employee, received, and documented in the employee record, after commencement of employment, lawful resident verification information consistent with employer requirements under the Immigration Reform and Control Act of 1986, compiled in 8 U.S.C. § 1101 et seq.
  4. A person has not violated subsection (b) with respect to a particular employee if the person verified the work authorization status of the employee by using the federal electronic work authorization verification service provided by the United States department of homeland security pursuant to the federal Basic Pilot Program Extension and Expansion Act of 2003, P.L. 108-156, or any successor program thereto, and the verification service returned a confirmation showing that:
    1. Such employee was eligible to work;
    2. Such employee was ineligible to work, but the employee has appealed such confirmation and the appeal has not been resolved; or
    3. Such employee was ineligible to work, the employee has not appealed such confirmation and the time for such employee to appeal pursuant to federal law has not expired.
    1. If any state or local governmental agency, officer, employee or entity has reason to believe that a violation of subsection (b) has occurred, the agency, officer, employee or entity shall file a complaint with the department. Upon receipt of a complaint by a federal, state or local governmental agency, officer, employee or entity, the commissioner shall conduct an investigation. If there is substantial evidence that a violation of subsection (b) has occurred, the commissioner shall conduct a contested case hearing pursuant to the Uniform Administrative Procedures Act, complied in title 4, chapter 5, on the question of whether the person has violated subsection (b). If the commissioner or the commissioner's designee determines that there is clear and convincing evidence that a person has violated subsection (b) and the violation occurred while the person was acting within the scope of practice of a license issued by the state or pursuant to title 67, chapter 4, the commissioner shall request an order consistent with § 4-5-320, requiring the appropriate regulatory board or local government with respect to business licensure pursuant to title 67, chapter 4, to revoke, suspend, or deny the person's license. The commissioner shall state in the commissioner's findings of fact and conclusions of law whether there have been previous violations of subsection (b).
      1. For the first violation of subsection (b), the commissioner shall order that the regulatory board or local government suspend the person's license until the person shows to the satisfaction of the commissioner that the person is no longer in violation of subsection (b). The showing may be made by the person filing a sworn statement with the commissioner stating that the person is no longer employing illegal aliens.
      2. For a second or subsequent violation of subsection (b) occurring within three (3) years from the issuance of the commissioner's first order, the commissioner shall order that the regulatory agency or local government suspend the license for one (1) year.
    2. Upon receiving a complaint pursuant to this section, consistent with this section, the commissioner or the commissioner's designee shall inform the person against whom the complaint is made that the person may request the name of the person filing the complaint, or if the complaint is filed by an agency or entity, the name of the person who caused the complaint to be filed. If the person requests the name, the commissioner or the commissioner's designee shall provide the name requested.
  5. The department shall notify the appropriate official making declarations pursuant to § 12-3-309 of a person's violation of this section.
  6. The department shall notify the department of homeland security of any person found in violation of this section.

Acts 1985, ch. 247, § 1; 1986, ch. 847, §§ 1-3; 1989, ch. 591, § 112; 1999, ch. 520, § 41; 2007, ch. 529, § 1; 2008, ch. 820, § 1; 2011, ch. 436, §§ 1-4.

Compiler's Notes. Acts 2007, ch. 529, § 3 provided that the commissioner is authorized to promulgate rules and regulations to effectuate the purposes of the act. The rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, title 4, chapter 5.

The Basic Pilot Program Extension and Expansion Act of 2003, P.L. 108-156, referred to in this section, amended 8 U.S.C. §§ 1153 note, 1324a note, 1360 note, and appears in part as 8 U.S.C. § 1153 note.

Law Reviews.

Business License Revocation: Is This What Tennessee Needs? (Linda Rose and Rose Paxtor), 44 Tenn. B.J. 23 (2008).

Outrage in the Workplace: Using the Tort of Intentional Infliction of Emotional Distress to Combat Employer Abuse of Immigrant Workers (Stewart, Meredith), 41 U. Mem. L. Rev. 187 (2010).

The United States Guestworker Program: The Need for Reform (Elizabeth Johnston), 43 Vand. J. Transnat'l L. 1121 (2010).

Attorney General Opinions. Preemption of penalties set forth in T.C.A. by 8 U.S.C. § 1324a(h)(2), OAG 07-079 (5/23/07).

50-1-104. State officials notified of plant closings or mass layoffs.

Upon being served with advance written notification of a plant closing or mass layoff pursuant to § 3(a)(2) of the Worker Adjustment and Retraining Notification Act, codified in 29 U.S.C. § 2102, the commissioner of labor and workforce development shall immediately advise the commissioners of economic and community development, education, health, human services, and mental health and substance abuse services, the executive director of the state board of education, and the chancellor of the state university and community college system concerning the circumstances of the plant closing or mass layoff, including the number of employees affected.

Acts 1989, ch. 399, § 2; 1999, ch. 520, § 41; 2010, ch. 1100, § 84; 2012, ch. 575, § 2.

Compiler's Notes. Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Plant closings and reduction in operations, title 50, ch. 1, part 6.

Plant closings or mass layoffs, notification to employees and state, § 50-1-602.

50-1-105. Providing employee information to prospective employers — Good faith.

Any employer that, upon request by a prospective employer or a current or former employee, provides truthful, fair and unbiased information about a current or former employee's job performance is presumed to be acting in good faith and is granted a qualified immunity for the disclosure and the consequences of the disclosure. The presumption of good faith is rebuttable upon a showing by a preponderance of the evidence that the information disclosed was:

  1. Knowingly false;
  2. Deliberately misleading;
  3. Disclosed for a malicious purpose;
  4. Disclosed in reckless disregard for its falsity or defamatory nature; or
  5. Violative of the current or former employee's civil rights pursuant to current employment discrimination laws.

Acts 1995, ch. 422, § 1.

Law Reviews.

The Faragher and Ellerth Problem: Lower Courts' Confusion Regarding the Definition of “Supervisor,” 54 Vand. L. Rev. 123 (2001).

Torts — Defamation — Compelled Self-Publication, 68 Tenn. L. Rev. 395 (2001).

50-1-106. Immigration status.

  1. As used in this section, unless the context otherwise requires:
    1. “Individual taxpayer identification number” means a tax processing number issued by the federal internal revenue service for the purpose of facilitating federal tax reporting by those individuals who are not eligible to obtain a federal social security number. An individual taxpayer identification number is a nine-digit number that has the appearance of a federal social security number (xxx-xx-xxxx), but that always begins with the number nine (9) and includes the number seven (7) or eight (8) as the fourth digit (9xx-7x-xxxx). An individual taxpayer identification number is issued regardless of immigration status and is not a valid form of identification for any purpose other than federal tax processing;
    2. “Lawful resident verification information” means the documentation that is required by the United States department of homeland security when completing the employment eligibility verification form commonly referred to as Form I-9; and
    3. “Person” includes any individual, partnership, association, company, business or corporation of any size regulated by, doing business in or using the services of employees in this state, including entering into a contract for the provision of the services.
  2. For purposes of an application or offer of employment, no person in this state shall accept an individual taxpayer identification number as a form of identification. Any person, including any contractor, in this state who is presented with an individual taxpayer identification number by a potential employee or subcontractor as a form of identification or to prove immigration status shall reject the number and shall request the lawful resident verification information that the person is required to obtain pursuant to federal law.
  3. The commissioner of labor and workforce development is authorized to promulgate rules and regulations to effectuate the purposes of this section. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2007, ch. 220, §§ 1, 2.

50-1-107. Veterans preference.

  1. A private employer may adopt an employment policy that gives preference in hiring to:
    1. An honorably discharged veteran;
    2. The spouse of a veteran with a service-connected disability;
    3. The unremarried widow or widower of a veteran who died of a service-connected disability; or
    4. The unremarried widow or widower of a member of the United States armed forces who died in the line of duty.
  2. A private employer adopting a veterans preference shall have the policy in writing and may require submission of a certificate of release or discharge from active duty, department of defense form 214 (DD 214), as proof of eligibility for the veterans preference employment policy.
  3. A policy adopted pursuant to subsection (a) must be applied uniformly to employment decisions regarding hiring and promotion.
  4. The preferences authorized by this section are not considered violations of any state or local equal employment opportunity law.
  5. Nothing in this section requires a private employer to provide a preference in hiring to any of the persons listed in subsection (a).

Acts 2017, ch. 9, § 1.

Effective Dates. Acts 2017, ch. 9, § 2. March 22, 2017.

50-1-108. Non-disclosure agreement with respect to sexual harassment in workplace as condition of employment prohibited.

  1. An employer, as defined in § 50-1-304, shall not require an employee, as defined in § 50-1-304, or a prospective employee to execute or renew a non-disclosure agreement with respect to sexual harassment in the workplace as a condition of employment.
  2. Any employee injured as a result of a violation of subsection (a) has the same rights and remedies available to employees under § 50-1-304.

Acts 2018, ch. 965, § 1.

Compiler's Notes. Acts 2018, ch. 965, § 2 provided that the act, which enacted this section, shall apply to agreements executed or renewed on or after May 15, 2018.

Effective Dates. Acts 2018, ch. 965, § 2. May 15, 2018.

Part 2
Right to Work

50-1-201. Denial of employment because of affiliation or nonaffiliation with labor union or employee organization.

It is unlawful for any person, firm, corporation or association of any kind to deny or attempt to deny employment to any person by reason of the person's membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization of any kind.

Acts 1947, ch. 36, § 1; C. Supp. 1950, § 11366.2 (Williams, § 11412.8); T.C.A. (orig. ed.), § 50-208.

Cross-References. Discharge for refusal to engage in or remain silent about illegal activities, or for legal use of agricultural product, § 50-1-304.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Labor, § 4.

Law Reviews.

Employee Investigations: Representation Rights Expanded to Nonunion Employees (Mark H. Floyd), 36 No. 10 Tenn. B.J. 13 (2000).

UAW-GM Saturn Contract: “Sweetheart Deal” or Novel Labor-Management Agreement? (Jeffrey L. Hall), 17 Mem. St. U.L. Rev. 69 (1986).

Union Organizing of Temporary Employees Subject to New Standards (Mark H. Floyd), 37 No. 1 Tenn. B.J. 23 (2001).

Attorney General Opinions. Applicability, OAG 94-043 (4/4/94).

Proposed Electricians' Licensing Act of 1998 does not require union membership, OAG 98-050 (2/23/98).

Right to work law, union rules and fines, conflicts of interest, remedies, OAG 99-231 (12/15/99).

NOTES TO DECISIONS

1. Constitutionality.

This part, known as the Tennessee Open Shop Law, does not offend any of the provisions of either the state or federal constitution. Mascari v. International Brotherhood of Teamsters, etc., 187 Tenn. 345, 215 S.W.2d 779, 1948 Tenn. LEXIS 434 (1948).

This part does not discriminate against either nonunion or union members but protects the right to work of both union and nonunion members. Mascari v. International Brotherhood of Teamsters, etc., 187 Tenn. 345, 215 S.W.2d 779, 1948 Tenn. LEXIS 434 (1948).

2. Application.

This part is not applicable to suit against a local union, its various officers and other individuals, who are sued as officers and members of the local union. Dukes v. Brotherhood of Painters, etc., 191 Tenn. 495, 235 S.W.2d 7, 1950 Tenn. LEXIS 463, 26 A.L.R.2d 1223 (1950).

This section and § 50-1-202 are directed to employers and do not apply to a suit against the union or its members. Bryan v. International Alliance, 43 Tenn. App. 180, 306 S.W.2d 64, 1957 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1957).

This section has no application to a state or political subdivision since such entities are not specifically mentioned therein. Keeble v. Alcoa, 204 Tenn. 286, 319 S.W.2d 249, 1958 Tenn. LEXIS 269 (1958).

3. Common-Law Rights.

In states where the all-union or closed shop is illegal, a labor union and its agents are not privileged or justified in exerting their combined coercive power to procure the discharge of a nonunion man, and an employee has a common-law right to secure his employment against wrongful interference by the union or its agents. Large v. Dick, 207 Tenn. 664, 343 S.W.2d 693, 1960 Tenn. LEXIS 507 (1960).

4. Injunction against Picketing.

Where three contractors were furnishing labor on a construction job and two of these, the electrical contractor and plumbing contractor, employed nonunion labor, and the electricians' union and the plumbers' union picketed the only two entrances to the job, one union picketing each entrance, the court properly granted a temporary injunction against picketing on application of the other contractor who used union labor and whose employees would not cross the picket line. International Brotherhood of Electrical Workers v. O'Brien, 202 Tenn. 38, 302 S.W.2d 60, 1957 Tenn. LEXIS 361 (1957).

Union was properly enjoined from picketing barber shop where answer of union admitted picketing was for purpose of forcing complainant to raise prices and had prevailed upon linen supply company to stop deliveries thereby making it unprofitable for complainant to continue in business, since, while defendants are privileged to patronize whomsoever they please, they cannot by force and intimidation deny to others a free choice. Flatt v. Barbers' Union, 202 Tenn. 345, 304 S.W.2d 329, 1957 Tenn. LEXIS 397 (1957), cert. denied, Barbers Union of Memphis v. Flatt, 355 U.S. 904, 78 S. Ct. 329, 2 L. Ed. 2d 259, 1957 U.S. LEXIS 1653 (1957).

5. Evidence.

In suit brought by nonresidents from sister unions who had obtained jobs through local, to compel full membership in local, holding of chancellor that local was operating in violation of this law was not sustained by the evidence. Bryan v. International Alliance, 43 Tenn. App. 180, 306 S.W.2d 64, 1957 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1957).

6. Appeal.

In suit under Declaratory Judgment Law by labor union for declaration that this part was unconstitutional, where chancellor held these sections to be a valid enactment, the motion of the labor union to dismiss an appeal was granted and the judgment of the lower court would stand as though no appeal had been prosecuted therefrom. Federal Firefighters of Oak Ridge v. Roane-Anderson Co., 185 Tenn. 320, 206 S.W.2d 369, 1947 Tenn. LEXIS 335 (1947).

Collateral References.

Termination of employment as a result of union action or pursuant to union contract as “voluntary” for purposes of unemployment compensation benefits. 90 A.L.R.2d 835.

Validity, construction, and application of state right-to-work provisions. 105 A.L.R.5th 243.

Wrongful discharge based on public policy derived from professional ethics codes. 52 A.L.R.5th 405.

50-1-202. Contracting for exclusion from employment because of affiliation or nonaffiliation with labor union or employee organization.

It is unlawful for any person, firm, corporation or association of any kind to enter into any contract, combination or agreement, written or oral, providing for exclusion from employment of any person because of membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization of any kind.

Acts 1947, ch. 36, § 2; C. Supp. 1950, § 11366.3 (Williams, § 11412.9); T.C.A. (orig. ed.), § 50-209.

Law Reviews.

Procuring Breach of Contract — The Tennessee Treble Damage Statute (Telford E. Forgety), 5 Mem. St. U.L. Rev. 599 (1975).

NOTES TO DECISIONS

1. Injunctions.

Contract that union attempted to induce grocer to enter into which would have required grocer to recognize the union as exclusive bargaining agent for grocer's meat cutters, apprentices and wrappers, which provided that a journeyman union meat cutter was to be on hand at all times when meats were sold and which provided that the head meat cutter was to be a union member violated the spirit if not the letter of the right-to-work statute, and picketing to induce the signing of such contract could be enjoined. Pruitt v. Lambert, 201 Tenn. 291, 298 S.W.2d 795, 1957 Tenn. LEXIS 425 (1957).

2. Contracts Violating Section.

Contract between general contractor and corporation contracting to erect structural steel that such corporation would employ only union labor is in violation of this law and void. Finchum Steel Erection Corp. v. International Ass'n of Bridge, etc., 202 Tenn. 580, 308 S.W.2d 381, 1957 Tenn. LEXIS 443 (1957).

Rider to national collective bargaining contract that excluded nonunion employees from employment in Tennessee on shipments out of Kentucky passing through Tennessee was unenforceable under Tennessee Open Shop Law, compiled in this part, even though rider was legal and enforceable in Kentucky where it was made. Martin v. Dealers Transport Co., 48 Tenn. App. 1, 342 S.W.2d 245, 1960 Tenn. App. LEXIS 104 (Tenn. Ct. App. 1960).

3. Agreement Recognizing Union as Bargaining Agency.

Where agreement between union and coal operators association recognized union as bargaining agency of employees of association members, fact that in amendments to the agreement the union was defined or referred to as acting on the behalf of its members did not indicate that the parties themselves construed the agreement as one requiring all employees to be members of the union. Lewis v. Fentress Coal & Coke Co., 160 F. Supp. 221, 1958 U.S. Dist. LEXIS 2475 (D. Tenn. 1958), aff'd, 264 F.2d 134, 1959 U.S. App. LEXIS 4920 (6th Cir. Tenn. 1959).

4. Contracts for Royalty Payments.

Agreement with respect to royalty payments by employer to union welfare funds was valid despite provisions requiring union shop “to the extent and in the manner permitted by law” since it would be assumed that parties intended to enter into contract legally enforceable at place of performance and that it was not intended that union shop provisions should be applicable in states having right-to-work statutes. Lewis v. Fentress Coal & Coke Co., 160 F. Supp. 221, 1958 U.S. Dist. LEXIS 2475 (D. Tenn. 1958), aff'd, 264 F.2d 134, 1959 U.S. App. LEXIS 4920 (6th Cir. Tenn. 1959).

Alleged practice between union and employer in requiring union membership and in checking membership dues off wages of all employees in the state was immaterial on issue of validity of contract for royalty payments to union welfare fund where contract was not ambiguous and did not require union membership as a condition to employment in states where such provision was unlawful. Lewis v. Fentress Coal & Coke Co., 160 F. Supp. 221, 1958 U.S. Dist. LEXIS 2475 (D. Tenn. 1958), aff'd, 264 F.2d 134, 1959 U.S. App. LEXIS 4920 (6th Cir. Tenn. 1959).

5. Arbitration of Disputes.

Where employer refused to arbitrate as to a union shop under a collective bargaining agreement on the grounds that Tennessee had made closed shops unlawful, it is incumbent upon arbitration committee and not the courts to determine whether there can be negotiations for a union shop under that agreement. Air Engineering Metal Trades Council v. Aro, Inc., 306 F. Supp. 7, 1969 U.S. Dist. LEXIS 9637 (E.D. Tenn. 1969).

Collateral References.

Labor relations acts: discharge of employee as reprisal or retaliation for union organizational activities. 83 A.L.R.2d 532.

Validity, construction, and application of state right-to-work provisions. 105 A.L.R.5th 243.

50-1-203. Exclusion from employment for payment of or failure to pay union or employee organization dues.

It is unlawful for any person, firm, corporation or association of any kind to exclude from employment any person by reason of the person's payment of or failure to pay dues, fees, assessments or other charges to any labor union or employee organization of any kind.

Acts 1947, ch. 36, § 3; C. Supp. 1950, § 11366.4 (Williams, § 11412.10); T.C.A. (orig. ed.), § 50-210.

Cross-References. Discharge for refusal to engage in or remain silent about illegal activities, or for legal use of agricultural product, § 50-1-304.

Law Reviews.

Rights and Remedies of Members in Internal Union Controversies in the Southern Jurisdictions, 12 Vand. L. Rev. 888 (1959).

Attorney General Opinions. Fair share legislation and the right to work law, OAG 93-36 (4/14/93).

NOTES TO DECISIONS

1. Employees Discharged Prior to Enactment of Statute.

Employer who discharged employees for failure to pay union dues pursuant to contract between union and employer prior to enactment of this part providing for open shop was not entitled to declaratory judgment as to rights under old contract where new contract had been entered into between employer and union providing for open shop, since only issue was as to seniority of discharged employees if and when employees were rehired. Combustion Engineering Co. v. Thompson, 191 Tenn. 98, 231 S.W.2d 580, 1950 Tenn. LEXIS 550 (1950).

2. Contracts Covering Several States.

Contract executed in District of Columbia, containing union membership clause, to cover operations in several states in addition to Tennessee, was not in violation of this law since it would be assumed that it was not the intention that the provision requiring union membership be operative in Tennessee. Lewis v. Fentress Coal & Coke Co., 160 F. Supp. 221, 1958 U.S. Dist. LEXIS 2475 (D. Tenn. 1958), aff'd, 264 F.2d 134, 1959 U.S. App. LEXIS 4920 (6th Cir. Tenn. 1959).

50-1-204. Prohibition against execution of an agreement with union or employee organization that includes maintenance of membership clause.

It is unlawful for any person, firm, corporation or association of any kind operating in this state to execute an agreement with a union or employee organization of any kind that includes a maintenance of membership clause prohibiting employees from withdrawing from a union or employee organization prior to the agreement's expiration. This section shall not apply to a city, town, municipality or county, including a county having a metropolitan form of government.

Acts 2011, ch. 178, § 2.

Compiler's Notes. Former § 50-1-204 (Acts 1947, ch. 36, § 5; C. Supp. 1950, § 11366.6 (Williams, § 11412.12); T.C.A. (orig. ed.), § 50-212; Acts 1989, ch. 591, § 111), concerning penalties for violations of this part, was transferred to § 50-1-205 by Acts 2011, ch. 178, § 1, effective May 5, 2011.

Acts 2011, ch. 178, § 3, provided that the act, which enacted this section, shall apply to agreements entered into on or after May 5, 2011.

For the preamble to the act concerning the state of Tennessee being a right to work state, please refer to Acts 2011, ch. 178.

50-1-205. Penalty.

  1. Any person, firm, corporation or association of any kind violating any of the provisions of this part commits a Class A misdemeanor.
  2. Each day that any person, firm, corporation or association of any kind remains in violation of this part is deemed to be a separate and distinct offense, punishable in accordance with this section.

Acts 1947, ch. 36, § 5; C. Supp. 1950, § 11366.6 (Williams, § 11412.12); T.C.A. (orig. ed.), § 50-212; Acts 1989, ch. 591, § 111; T.C.A. § 50-1-204; Acts 2011, ch. 178, §§ 1, 2.

Compiler's Notes. Former § 50-1-204 was transferred to this section by Acts 2011, ch. 178, § 1, effective May 5, 2011.

Acts 2011, ch. 178, § 3, provided that the act, which transferred former § 50-1-204 to this section, shall apply to agreements entered into on or after May 5, 2011.

For the preamble to the act concerning the state of Tennessee being a right to work state, please refer to Acts 2011, ch. 178.

Cross-References. Penalty for a Class A misdemeanor, § 40-35-111.

Law Reviews.

Labor Law — 1961 Tennessee Survey (Paul H. Sanders), 14 Vand. L. Rev. 1317 (1961).

50-1-206. Right to work.

  1. It is the public policy of this state that employees of this state have the right to:
    1. Employment without regard to any person’s refusal to join or affiliate with, or decision to withdraw from or cease membership in, any labor union or employee organization of any kind;
    2. Be employed free from the restraints of any contract, combination or agreement, written or oral, that provides for exclusion from employment of any person due to their refusal to join or affiliate with, or decision to withdraw from or cease membership in, any labor union or employee organization of any kind;
    3. Be employed without regard to any person’s refusal to pay dues, fees, assessments or other charges to any labor union or employee organization of any kind; and
    4. Decertify a union or other bargaining representative upon compliance with the applicable federal law.
  2. Private employers may physically post notice of the rights described in this section, at locations where notices are normally posted, informing employees about their rights under this section, or may physically disseminate such notice to employees if no such normal location for posting exists.
  3. To assist private employers in informing workers of their rights as described in this section, the commissioner of labor and workforce development shall create model notice language reiterating the public policies of this state espoused in this part, which may be used by private employers accordingly.
  4. The commissioner shall designate those persons in the department responsible for carrying out the commissioner’s power, duties and responsibilities under this part.

Acts 2012, ch. 826, § 1.

Compiler's Notes. For the Preamble to the act concerning an employee’s right to forfeit a union or employee membership, please refer to Acts 2012, ch. 826.

50-1-207. Prohibition against requiring any employer or employee to waive their rights under the National Labor Relations Act or requiring acceptance or agreement to any provisions that are mandatory or non-mandatory subjects of collective bargaining under federal labor laws.

  1. For purposes of this section:
    1. “Employee” means a natural person who performs services for an employer for valuable consideration, and does not include a self-employed independent contractor;
    2. “Employer” means a person, association, or legal or commercial entity receiving services from an employee and, in return, giving compensation of any kind to such employee;
    3. “Federal labor laws” means the National Labor Relations Act, compiled in 29 U.S.C. § 151 et seq., and the Labor Management Relations Act, compiled in 29 U.S.C. § 141 et seq., as amended, presidential executive orders, and federal administrative regulations relating to labor and management or employee and employer issues, and the United States Constitution as amended;
    4. “Multi-employer association” means a bargaining unit composed of independent employers who associate together to negotiate jointly with one (1) or more labor organizations representing the employees of the independent employers within the bargaining unit;
    5. “Political subdivision” means any local governmental entity, including, but not limited to, any municipality, metropolitan government, county, utility district, school district, public building authority, and development district created and existing pursuant to the laws of this state, or any instrumentality of government created by any one (1) or more of the named local governmental entities; and
    6. “State” means the state of Tennessee and its political subdivisions, agencies and instrumentalities.
  2. No law, ordinance, or regulation shall impose any contractual, zoning, permitting, licensing, or other condition that requires any employer or employee to waive their rights under the National Labor Relations Act.
  3. No law, regulation, or ordinance shall require, in whole or in part, an employer or multi-employer association to accept or otherwise agree to any provisions that are mandatory or non-mandatory subjects of collective bargaining under federal labor laws, including but not limited to, any limitations on an employer or multi-employer association's rights to engage in collective bargaining with a labor organization, to lock out employees, or to operate during a work stoppage; provided, that this subsection (c) shall not invalidate or otherwise restrict the state from requiring the use of project labor agreements to the extent permissible under federal labor laws.
  4. This section shall be interpreted and enforced consistent with the National Labor Relations Act.
    1. Any agreement, contract, understanding, or practice, written or oral, implied or expressed, between any employer and any labor organization required in violation of this section is declared to be unlawful, null, and void, and of no legal effect.
    2. An employer or employee may seek injunctive relief in the chancery court of Davidson county to prevent the state from violating this section.

Acts 2013, ch. 277, § 1.

Compiler's Notes. For the Preamble to the act concerning the regulation of labor neutrality agreements, please refer to Acts 2013, ch. 277.

Law Reviews.

Does “Why” or “What” Matter: Should Section 302 Apply to Card Check Neutrality Agreements? 45 U. Mem. L. Rev. 249 (2014).

50-1-208. Relationship between franchisee and franchisor.

  1. Notwithstanding any voluntary agreement entered into between the United States department of labor and a franchisee, neither a franchisee nor a franchisee's employee shall be deemed to be an employee of the franchisor for any purpose.
  2. For purposes of this section “franchisee” and “franchisor” have the same definitions as set out in 16 CFR 436.1.

Acts 2015, ch. 114, § 1.

Effective Dates. Acts 2015, ch. 114, § 2. April 10, 2015.

Part 3
Working Conditions Generally

50-1-301. Toilet facilities for female employees.

  1. All persons employing female employees in any manufacturing or mercantile establishment shall provide separate privies or water closets for the female employees.
  2. No male person shall enter the separate privies or water closets except for the purpose of repairing or cleaning the privies or water closets.
  3. A violation of this section is a Class C misdemeanor.

Acts 1897, ch. 98, §§ 1-3; Shan., §§ 3079a27-3079a29; Code 1932, §§ 5309-5311; T.C.A. (orig. ed.), §§ 50-401 — 50-403, 50-609 — 50-611; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

50-1-302. Interference with choice of physician — Company doctors.

  1. It is unlawful for any employer, or agent, clerk or superintendent of the employer, to dictate or in any manner interfere with any employee or laborer in the employee's or laborer's rights to select the employee's or laborer's own family physician.
  2. It is unlawful for any employer, or agent, clerk or superintendent of the employer, to retain or withhold any part or portion of the wages due to the employee or laborer for the avowed purpose of paying the salary of any person claiming to be the company doctor without the full consent of the employee or laborer. The whole amount of any wages so retained by consent shall be paid to the company doctor or other physician employed by the employee.
  3. Any employer, or agent, clerk or superintendent of the employer, violating this section commits a Class C misdemeanor.

Acts 1889, ch. 259, §§ 1-3; Shan., §§ 6879-6881; mod. Code 1932, §§ 11355-11357; T.C.A. (orig. ed.), §§ 50-203, 50-318, 50-319; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

NOTES TO DECISIONS

1. Evidence.

Evidence was insufficient to authorize a recovery by the “company doctor,” as failing to show that a fund was collected and existed as a fund held in trust for complainant, the “company doctor”; but the evidence showed that a fund was collected for the joint purpose of paying the “company doctor,” and for maintaining hospitals and nurses; and the evidence failed to show that there was any money left in the fund. The evidence further showed that the complainant had no contractual relation that would entitle him to recover anything, and that he must recover, if at all, under this section. No recovery was allowed. Wagner v. Bardy, 130 Tenn. 554, 171 S.W. 1179, 1914 Tenn. LEXIS 58 (1914).

Collateral References.

Law governing assignment of wages or salary. 1 A.L.R.3d 927.

50-1-303. Employees required to leave premises upon ceasing work — Penalty.

In all cases where an employee or employees ceases work for any employer, whether the severance is voluntary on the part of the employee or whether the employee is lawfully discharged, the employee or employees shall within a reasonable time thereafter withdraw from the premises of the employer in which they were employed. In the absence of other circumstances, twelve (12) hours from the date of the cessation of employment shall be a reasonable time. Any employee or employees failing and refusing to withdraw from the premises of the employer after the termination of employment commits a Class C misdemeanor.

Acts 1937, ch. 160, § 1; C. Supp. 1950, § 11366.1; T.C.A. (orig. ed.), § 50-213; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Law Reviews.

Labor Law — Wildcat Strikes in Violation of the Wartime No-Strike Pledge, 18 Tenn. L. Rev. 630 (1944).

50-1-304. Discharge for refusal to participate in or remain silent about illegal activities, or for legal use of agricultural product — Damages — Frivolous lawsuits.

  1. As used in this section:
    1. “Employee” includes, but is not limited to:
      1. A person employed by the state or any municipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity of the state;
      2. A person employed by a private employer; or
      3. A person who receives compensation from the federal government for services performed for the federal government, notwithstanding that the person is not a full-time employee of the federal government;
    2. “Employer” includes, but is not limited to:
      1. The state or any municipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity of the state;
      2. A private employer; or
      3. The federal government as to an employee who receives compensation from the federal government for services performed for the federal government, notwithstanding that the person is not a full-time federal employee; and
    3. “Illegal activities” means activities that are in violation of the criminal or civil code of this state or the United States or any regulation intended to protect the public health, safety or welfare.
  2. No employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities.
    1. Any employee terminated in violation of subsection (b) shall have a cause of action against the employer for retaliatory discharge and any other damages to which the employee may be entitled, subject to the limitations set out in § 4-21-313.
    2. Any employee terminated in violation of subsection (b) solely for refusing to participate in, or for refusing to remain silent about, illegal activities who prevails in a cause of action against an employer for retaliatory discharge for the actions shall be entitled to recover reasonable attorney fees and costs.
    1. No employee shall be discharged or terminated solely for participating or engaging in the use of an agricultural product not regulated by the alcoholic beverage commission that is not otherwise proscribed by law, if the employee participates or engages in the use in a manner that complies with all applicable employer policies regarding the use during times at which the employee is working.
    2. No employee shall be discharged or terminated solely for participating or engaging in the use of the product not regulated by the alcoholic beverage commission that is not otherwise proscribed by law if the employee participates or engages in the activity during times when the employee is not working.
    1. This section shall not be used for frivolous lawsuits, and anyone trying to do so is subject to sanction as provided in subdivision (e)(2).
    2. If any employee files a cause of action for retaliatory discharge for any improper purpose, such as to harass or to cause needless increase in costs to the employer, the court, upon motion or upon its own initiative, shall impose upon the employee an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred, including reasonable attorney's fees.
  3. In any civil cause of action for retaliatory discharge brought pursuant to this section, or in any civil cause of action alleging retaliation for refusing to participate in or remain silent about illegal activities, the plaintiff shall have the burden of establishing a prima facie case of retaliatory discharge. If the plaintiff satisfies this burden, the burden shall then be on the defendant to produce evidence that one (1) or more legitimate, nondiscriminatory reasons existed for the plaintiff's discharge. The burden on the defendant is one of production and not persuasion. If the defendant produces such evidence, the presumption of discrimination raised by the plaintiff's prima facie case is rebutted, and the burden shifts to the plaintiff to demonstrate that the reason given by the defendant was not the true reason for the plaintiff's discharge and that the stated reason was a pretext for unlawful retaliation. The foregoing allocations of burdens of proof shall apply at all stages of the proceedings, including motions for summary judgment. The plaintiff at all times retains the burden of persuading the trier of fact that the plaintiff has been the victim of unlawful retaliation.
  4. This section abrogates and supersedes the common law with respect to any claim that could have been brought under this section.

Acts 1990, ch. 771, §§ 1, 2; 1997, ch. 511, §§ 1, 2; 2000, ch. 688, § 1; 2009, ch. 161, § 1; 2011, ch. 461, § 2; 2014, ch. 995, §§ 4-6.

Compiler's Notes. Acts 2011, ch. 461, § 4 provided that the act, which added subsection (g) (now subsection (f)), shall apply to all causes of action accruing on or after June 10, 2011.

For the Preamble to the act concerning employment litigation in Tennessee, please refer to Acts 2014, ch. 995.

Acts 2014, ch. 995, § 7 provided that nothing in the act, which amended subdivision (c)(1) and subsection (f) and added subsection (g), shall require the Tennessee human rights commission, created pursuant to § 4-21-201, to provide training or education in addition to its current operations.

Acts 2014, ch. 995, § 8 provided that the act shall apply to all actions accruing on or after July 1, 2014.

Amendments. The 2014 amendment added “, subject to the limitations set out in § 4-21-313” at the end of present (c)(1); deleted “under Tennessee common law” following “remain silent about illegal activities,” in the first sentence of present (f); and added (g).

Effective Dates. Acts 2014, ch. 995, § 8. July 1, 2014.

Cross-References. Disciplinary action against school employee reporting statute violation, civil action, § 49-50-1409.

Non-Smoker Protection Act, title 39, ch. 17, part 18.

Law Reviews.

Predicting the Success of Wrongful Discharge-Public Policy Actions: In Tennessee and Beyond, 58 Tenn. L. Rev. 393 (1991).

Reefer Madness: How Tennessee Can Provide Cannabis Oil Patients Protection from Workplace Discrimination, 47 U. Mem. L. Rev. 935 (2017).

Retaliatory Discharge and Public Policy (Charles H. Anderson), 26 No. 6 Tenn. B.J. 30 (1990).

The Law at Work: Variation in State and Federal Pleading Standards: Webb and Veasy (Edward G. Phillips with Brandon L. Morrow), 49 Tenn. B.J. 26 (2013).

When Telling the Truth Costs You Your Job: Tennessee's Employment-at-Will Doctrine and the Need for Change (Chad E. Wallace), 39 No. 4 Tenn. B.J. 18 (2003).

Workers' Compensation — Anderson v. Standard Register Co.: Tennessee Supreme Court Specifies Elements Required to Establish a Cause of Action for Retaliatory Discharge in Workers' Compensation Cases, 24 Mem. St. U.L. Rev. 825 (1994).

NOTES TO DECISIONS

1. Constitutionality.

Amendment to T.C.A. § 50-1-304(f) was procedural in nature, in that the amendment clarifies and outlines the procedural burden-shifting applicable to Tennessee Public Protection Act cases; however, the amendment did not disturb any vested right or contractual obligation that former employees might have, in violation of Tenn. Const. art. 1, § 20, as the issues in the case were decided well after the effective date of the statute. Todd v. Shelby County, 407 S.W.3d 212, 2012 Tenn. App. LEXIS 910 (Tenn. Ct. App. Dec. 27, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 591 (Tenn. June 13, 2013).

2. Applicability.

Recent amendments to the Tennessee Public Protection Act, or the Whistleblower Act, T.C.A. § 50-1-304, at T.C.A. §§ 50-1-304(f) and 50-1-701, were inapplicable to a case where the cause of action accrued before June 10, 2011. Williams v. City of Burns, — S.W.3d —, 2012 Tenn. App. LEXIS 104 (Tenn. Ct. App. Feb. 15, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 353 (Tenn. May 21, 2012).

When a passenger on a transit authority bus brought claims for slander and libel, after being arrested as a result of an altercation with the driver, denial of the passenger's claim under the Tennessee Public Protection Act, T.C.A. § 50-1-304, was appropriate because the passenger did not allege that the passenger was an employee of the transit authority. Poe v. Gist, — S.W.3d —, 2017 Tenn. App. LEXIS 850 (Tenn. Ct. App. Sept. 1, 2017).

3. Elements.

Four elements necessary for the existence of a cause of action under the Tennessee Public Protection Act, compiled in T.C.A. § 50-1-304, are: (1) the plaintiff's status as an employee of the defendant; (2) the plaintiff's refusal to participate in, or to remain silent about, illegal activities; (3) the employer's discharge of the employee; and (4) an exclusive causal relationship between the plaintiff's refusal to participate in or remain silent about illegal activities and the employer's termination of the employee. Griggs v. Coca-Cola Employees' Credit Union, 909 F. Supp. 1059, 1995 U.S. Dist. LEXIS 19752 (E.D. Tenn. 1995).

In order to meet the requirements of an action under T.C.A. § 50-1-304, there must be a fear of dismissal contemporaneous with the plaintiff's decision whether to report the illegal activities. Griggs v. Coca-Cola Employees' Credit Union, 909 F. Supp. 1059, 1995 U.S. Dist. LEXIS 19752 (E.D. Tenn. 1995).

T.C.A. § 50-1-304 requires the plaintiff to show that the employer discharged her solely for refusing to participate in, or for refusing to remain silent about, illegal activities. Griggs v. Coca-Cola Employees' Credit Union, 909 F. Supp. 1059, 1995 U.S. Dist. LEXIS 19752 (E.D. Tenn. 1995).

T.C.A. § 50-1-304 does not require a showing that the employer instructed the employee to refrain from reporting the illegal activity. Mason v. Seaton, 942 S.W.2d 470, 1997 Tenn. LEXIS 173 (Tenn. 1997).

Because an employee's claims under Tennessee's whistle blower statute depended upon the existence of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., plans and alleged violations of fiduciary duties imposed by ERISA, the claims “related to” ERISA plans within the meaning of 29 U.S.C. § 1144(a), and were preempted. McSharry v. UNUMProvident Corp., 237 F. Supp. 2d 875, 2002 U.S. Dist. LEXIS 24519 (E.D. Tenn. 2002).

Employee was terminated on March 23, 2006, but did not file suit until June 25, 2008, more than two years later; hence, the Tennessee Public Protection Act (TPPA), T.C.A. § 50-1-304 et seq., claim was time-barred. Gibson-Holmes v. Fifth Third Bank, 661 F. Supp. 2d 905, 2009 U.S. Dist. LEXIS 92155 (M.D. Tenn. Oct. 2, 2009).

Sergeant could not establish that he faced the requisite contemporaneous fear of dismissal under the Tennessee Public Protection Act because at the time the sergeant filed his complaint against a lieutenant, he was not in fear of dismissal. Coffey v. City of Oak Ridge, — S.W.3d —, 2014 Tenn. App. LEXIS 564 (Tenn. Ct. App. Sept. 12, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 60 (Tenn. Jan. 16, 2015).

Sergeant did not establish a prima facie showing of constructive discharge because demotions did not qualify as intolerable working conditions; although there was a pending investigation lead by the lieutenant regarding the damage the sergeant allegedly caused to a firearm, the investigation had begun before the sergeant filed his complaint against the lieutenant. Coffey v. City of Oak Ridge, — S.W.3d —, 2014 Tenn. App. LEXIS 564 (Tenn. Ct. App. Sept. 12, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 60 (Tenn. Jan. 16, 2015).

Sergeant's complaint against a lieutenant did not regard an illegal activity as required by the Tennessee Public Protection Act because the lieutenant's actions did not satisfy the elements of “reckless endangerment; the lieutenant did not cause an imminent threat of any danger to the participants by placing them in a reasonable probability of danger. Coffey v. City of Oak Ridge, — S.W.3d —, 2014 Tenn. App. LEXIS 564 (Tenn. Ct. App. Sept. 12, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 60 (Tenn. Jan. 16, 2015).

In a retaliatory discharge claim by plaintiff police officer, the court of appeals properly reversed the trial court's decision that the city did not discharge plaintiff solely in retaliation for conduct protected under the Tennessee Public Protection Act (TPPA) because plaintiff made out a prima facie case under the TPPA by showing that he refused to participate in the police chief's illegal ticket fixing, and that the requisite causal connection existed between his discharge and his refusal to participate; the city's reason for discharging plaintiff was pretextual; and the sole reason for plaintiff's discharge was retaliation for his refusal to participate in and remain silent about the police chief's illegal activities. Williams v. City of Burns, 465 S.W.3d 96, 2015 Tenn. LEXIS 367 (Tenn. May 4, 2015).

Circuit court erred in granting summary judgment dismissing an employee's claims under the Tennessee Human Rights Act and the Tennessee Public Protection Act against two separate corporate entities (the employers) because genuine issues of disputed material fact existed as to whether one employer exercised sufficient control over the other to constitute an employer-employee relationship with the employee, as to whether the discriminatory conduct alleged by the employee was sufficiently severe or pervasive to create a hostile working environment, and as to whether the first employer's reliance on an independent consultant's report for the employee's termination was pretextual. Whitney v. First Call Ambulance Serv., — S.W.3d —, 2019 Tenn. App. LEXIS 183 (Tenn. Ct. App. Apr. 15, 2019), vacated, — S.W.3d —, 2019 Tenn. App. LEXIS 216 (Tenn. Ct. App. May 6, 2019), substituted opinion, — S.W.3d —, 2019 Tenn. App. LEXIS 224 (Tenn. Ct. App. Mar. 8, 2019).

Employer was not entitled to summary judgment as to an employee's Tennessee Public Protection Act claim because the employee proffered evidence showing a reasonable person could conclude a report the employer used to terminate the employee had no basis in fact or was insufficient to motivate the termination. Whitney v. First Call Ambulance Serv., — S.W.3d —, 2019 Tenn. App. LEXIS 224 (Tenn. Ct. App. Mar. 8, 2019).

4. Sufficient Evidence.

Allegations of discharged employees that officials of county hospital authority participated in the decision to terminate their employment and to otherwise retaliate and harass them for making complaints about illegal activities and safety violations stated a cause of action under T.C.A. § 50-1-304. Ketron v. Chattanooga-Hamilton County Hosp. Auth., 919 F. Supp. 280, 1996 U.S. Dist. LEXIS 3469 (E.D. Tenn. 1996).

Plaintiff employee, who was terminated after voicing a complaint about the employer's violation of paid leave policy, raised issues that could be matters of public concern, and stated a prima facie claim for retaliatory discharge against defendant county. Wooley v. Madison County, 209 F. Supp. 2d 836, 2002 U.S. Dist. LEXIS 12297 (W.D. Tenn. 2002).

Where a fifty-eight-year-old manager, who was terminated as part of a reduction in force, claimed that the employer failed to rehire him for open manager positions in retaliation for filing an EEOC charge of age discrimination and a lawsuit against the employer, summary judgment for the employer was denied, because the employee presented more than a scintilla of evidence to support his claim that retaliation may have motivated the employer's decision not to consider him for the manager positions, including the fact that the decision-maker admitted that he may have been aware of the employee's lawsuit at the time he considered applicants. Southmayd v. Apria Healthcare, Inc., 412 F. Supp. 2d 848, 2006 U.S. Dist. LEXIS 6145 (E.D. Tenn. 2006).

Summary judgment was erroneously granted to a city in a former employee's action under Tennessee Public Protection Act, or the Whistleblower Act, T.C.A. § 50-1-304, as issues of material fact existed as to whether termination was justified based on the employee's disregard of the chain of command, criticism of a supervisor, and failure to attend a meeting. Williams v. City of Burns, — S.W.3d —, 2012 Tenn. App. LEXIS 104 (Tenn. Ct. App. Feb. 15, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 353 (Tenn. May 21, 2012).

Summary judgment standard embodied in T.C.A. § 20-16-101, which was intended to replace a summary judgment standard that arose from caselaw, was inapplicable to a claim under the Tennessee Public Protection Act, or the Whistleblower Act, T.C.A. § 50-1-304, where the cause of action accrued before June 10, 2011. Williams v. City of Burns, — S.W.3d —, 2012 Tenn. App. LEXIS 104 (Tenn. Ct. App. Feb. 15, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 353 (Tenn. May 21, 2012).

Evidence did not support a finding that a police officer's termination from employment was due to his violation of the chain of command when he reported illegal activities of the police chief to the mayor, as it was the police chief's activities that were called into question, such that the chain of command could not adequately function and could not support the officer's termination for purposes of the officer's retaliatory discharge claim. Williams v. City of Burns, — S.W.3d —, 2013 Tenn. App. LEXIS 525 (Tenn. Ct. App. Aug. 12, 2013), aff'd, 465 S.W.3d 96, 2015 Tenn. LEXIS 367 (Tenn. May 4, 2015).

Evidence did not support a finding that a police officer's termination from employment was due to his insubordination, as there was no basis in fact to support that assertion, and the evidence instead showed that the insubordination claim was a pretext for unlawful retaliation. Williams v. City of Burns, — S.W.3d —, 2013 Tenn. App. LEXIS 525 (Tenn. Ct. App. Aug. 12, 2013), aff'd, 465 S.W.3d 96, 2015 Tenn. LEXIS 367 (Tenn. May 4, 2015).

City was entitled to summary judgment on a police officer's retaliatory discharge claim under the Whistleblower Act because the officer's evidence was insufficient to establish that she refused to participate in illegal activity under the statute involving traffic offense citation quotas, which was a limitation on the city's action and not the officer's individual actions. Bige v. City of Etowah, — S.W.3d —, 2014 Tenn. App. LEXIS 789 (Tenn. Ct. App. Dec. 1, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 297 (Tenn. Apr. 10, 2015).

City was entitled to summary judgment on a police officer's retaliatory discharge claim under the Whistleblower Act because the officer did not establish the city fired her solely due to her refusal to participate in an illegal activity; the city's valid and legitimate reasons for the officer's termination included her “poor attitude and demeanor” at work and the fact she was not writing many tickets, which was interpreted by the officer's supervisor as not doing her job. Bige v. City of Etowah, — S.W.3d —, 2014 Tenn. App. LEXIS 789 (Tenn. Ct. App. Dec. 1, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 297 (Tenn. Apr. 10, 2015).

5. Insufficient Evidence.

There was no proof that the manager knew of the employee's report to upper management regarding the alleged insurance fraud and it was undisputed that the manager had a legitimate reason to discharge the employee later. Mere coincidence of time was insufficient to prove causation, especially in light of the fact that the plaintiff had no evidence that the manager was aware of the employee's whistleblowing activity. Pannell v. Future Now, 895 F. Supp. 196, 1995 U.S. Dist. LEXIS 15743 (W.D. Tenn. 1995).

An employee's claim that his discharge resulted from his dissemination of a newsletter and his opinions expressed therein did not establish a violation of T.C.A. § 50-1-304, since he did not face the choice between reporting illegalities and keeping his job, and since there was not the required fear of dismissal contemporaneous with plaintiff's decision to report illegal activities. Henderson v. Corrections Corp. of Am., 918 F. Supp. 204, 1996 U.S. Dist. LEXIS 3471 (E.D. Tenn. 1996).

Where an airline employee failed to offer proof that he was fired because he was about to go public with information that his employer falsified maintenance records concerning its airplanes, summary judgment against him was proper. Robins v. Flagship Airlines, 956 S.W.2d 4, 1997 Tenn. App. LEXIS 434 (Tenn. Ct. App. 1997).

Where the activities that were reported by the employee were not “illegal activities” within the meaning of T.C.A. § 50-1-304, he failed to establish a prima facie case of retaliatory discharge. Voss v. Shelter Mut. Ins. Co., 958 S.W.2d 342, 1997 Tenn. App. LEXIS 358 (Tenn. Ct. App. 1997).

Where a hospital employee was terminated for insubordination and the employee alleged that the termination was for complaining about medical mistreatment of patients, the employee's retaliatory discharge claims failed to survive summary judgment because the employee failed to show an exclusive causal relationship between the alleged whistle blowing and the termination. Caruso v. St. Jude Children's Research Hosp., Inc., 215 F. Supp. 2d 930, 2002 U.S. Dist. LEXIS 18989 (W.D. Tenn. 2002), dismissed, Caruso v. St. Jude Children's Research Hosp., — F. Supp. 2d —, 2002 U.S. Dist. LEXIS 18988 (W.D. Tenn. Sept. 19, 2002).

Employee's retaliatory discharge claim was dismissed where, under T.C.A. § 50-1-304 and common law, the regulatory infraction by the company on which the employee relied did not implicate fundamental policy concerns and the employee's refusal to drive the truck with a photocopy of the cab card did not further an important public policy interest embodied in the law. Franklin v. Swift Transp. Co., 210 S.W.3d 521, 2006 Tenn. App. LEXIS 467 (Tenn. Ct. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1126 (Tenn. 2006).

Bank teller did not establish retaliatory discharge claims against her former employer, a bank, under the common-law and the Whistleblower Act, T.C.A. § 50-1-304, because she did not show that her supervisor's request regarding how cash would be made available to a substitute teller was illegal or that it violated bank policy; additionally, the teller did not present proof that she reported or attempted to report the supervisor's request to other bank officials, law enforcement, or the bank itself through a toll free number established for that purpose. Collins v. AmSouth Bank, 241 S.W.3d 879, 2007 Tenn. App. LEXIS 479 (Tenn. Ct. App. July 26, 2007).

Employee showed nothing of which was illegal or against public policy; nor did the employee show that she was dismissed solely because of complaints about illegal activities as she readily admitted in her deposition that part of the reason for the closing of the Nashville office was simple greed on the part of other traders. Gibson-Holmes v. Fifth Third Bank, 661 F. Supp. 2d 905, 2009 U.S. Dist. LEXIS 92155 (M.D. Tenn. Oct. 2, 2009).

In an employee's suit against her former employer alleging common law and statutory claims of retaliatory discharge after she complained of an activity by a co-worker that she found personally offensive in that it created a foul smell and dust, the employee's claim of common law retaliatory discharge was not applicable because the Tennessee Occupational Safety and Health Act, T.C.A. § 50-3-409, provided the exclusive remedy. And as the employee but did not cite any specific threat either to her own health or safety or that of the public, and failed to show that the employer's activities implicated fundamental public policy concerns, the trial court properly dismissed the employee's claim under the Tennessee Public Protection Act, T.C.A. § 50-1-304 as well. Boyd v. Edwards & Assocs., 309 S.W.3d 470, 2009 Tenn. App. LEXIS 165 (Tenn. Ct. App. Apr. 30, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 867 (Tenn. Dec. 21, 2009).

Employer was granted summary judgment on the employee's statutory and common law retaliatory discharge claims where the employee had not met his burden of demonstrating that the regulatory infraction allegedly committed by the employer implicated fundamental public policy concerns. Clark v. Hoops, LP, 709 F. Supp. 2d 657, 2010 U.S. Dist. LEXIS 32422 (W.D. Tenn. Apr. 1, 2010).

Employer was granted summary judgment as to a former employee's claim under the Tennessee Public Protective Act (TPPA), T.C.A. § 50-1-304, because she did not establish that she refused to participate or remain silent about an illegal activity or an activity that violated a clear public policy evidenced by an unambiguous constitutional statutory or regulatory provision based on the record that demonstrated that the majority of her complaints to the employer did not involve sex but were in regard to what she perceived as harsh, condescending, or unfair treatment and she provided no law under which her complaints about those matters were protected by the TPPA and the common law; in addition, the former employee's confirmation of the incidents referenced in an anonymous email and her discussion with the employer about those incidents constituted the type of conduct protected by the TPPA and the common law but it was not clear that she herself ever actually reported the incidents referenced in the anonymous email and the contents of that email did not constitute a report or complaint that the employer was engaging in discrimination on the basis of sex, thus, she failed to establish a prima facie case for retaliation under the TPPA or the common law. Manstra v. Norfolk S. Corp., — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 42830 (E.D. Tenn. Mar. 28, 2012).

Plaintiff's Tennessee Public Protection Act (TPPA), T.C.A. § 50-1-304 claim could not stand because aside from her termination, the plaintiff had not alleged that the defendant engaged in any other illegal activity. The TPPA, as evidenced by its express terms, protected whistleblowers, that was, those individuals who refused to participate in or remain silent about an illegal activity; therefore, because the complaint lacked any allegation of whistleblowing activity, the plaintiff's TPPA claim was dismissed. McAllister v. Quality Mobile X-Ray Servs., — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 103563 (M.D. Tenn. July 25, 2012).

Employer was entitled to summary judgment on former employees'  Tennessee Public Protection Act claims, as the employees had not established the element of sole causation. The employees'  termination appeared to be the culmination of several months of planning and actions consistent with the mayor's ultimate goal of a complete overhaul of the department in which they worked; the evidence indicated that the mayor's office did not know about the whistleblowing activities until after the decision to terminate the employees was made; and the employees had not produced evidence to rebut the legitimate reason for the termination of their employment, problems within their department, and to show that it was pretext. Todd v. Shelby County, 407 S.W.3d 212, 2012 Tenn. App. LEXIS 910 (Tenn. Ct. App. Dec. 27, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 591 (Tenn. June 13, 2013).

Teacher failed to establish that he was terminated because of his reporting of illegal activities; that he allegedly reported illegal activities before he received negative evaluations and was disciplined was insufficient to establish an exclusive causal relationship, and unrefuted evidence showed that the negative evaluations were based at least in part on the teacher's ability and performance. Brown v. Bd. of Educ., — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 128645 (W.D. Tenn. Sept. 15, 2014), aff'd, Brown v. Shelby Cty. Bd. of Educ., — F.3d —, — FED App. —, 2016 U.S. App. LEXIS 23870 (6th Cir. Tenn. Apr. 26, 2016).

When an employee was fired for refusing to reimburse child support payments the employee had misdirected, the employee's claim under T.C.A. § 50-1-304 failed because: (1) the employee did not identify an illegal activity an employer allegedly engaged in; and (2) the employee's alleged immunity under T.C.A. § 29-20-310(b) from any claim for misdirecting the payments was irrelevant, since no such claim was made. Palmore v. Neal, — S.W.3d —, 2014 Tenn. App. LEXIS 341 (Tenn. Ct. App. June 12, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 907 (Tenn. Oct. 22, 2014).

Employee firing did not violate T.C.A. § 50-1-304 when the employee did not go on test drives without dealer license plates and proof of insurance, because the employee did not show this was the sole reason, since the person who fired the employee did not know the employee refused to go on test drives and fired the employee for the legitimate reason of damaging company property, and the employee did not show this was not the true reason. McMillin v. Ted Russell Ford, Inc., — S.W.3d —, 2014 Tenn. App. LEXIS 450 (Tenn. Ct. App. July 31, 2014).

In a retaliatory discharge action by a former police officer against the city under the Tennessee Public Protection Act, the trial court did not err in granting summary judgment in favor of the city because the former police officer's evidence was insufficient to establish a genuine issue of material fact as to two essential elements of her claim - that she refused to participate in an illegal activity as she presented no evidence that anyone employed by the city ever suggested or required her to write an unwarranted ticket; and that the city fired her solely because of her refusal to participate in an illegal activity as there were valid and legitimate reasons for her termination, including her poor attitude and demeanor at work. Bige v. City of Etowah, — S.W.3d —, 2014 Tenn. App. LEXIS 789 (Tenn. Ct. App. Dec. 1, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 297 (Tenn. Apr. 10, 2015).

Former employee, African-American female, who worked as front office medical assistant for provider of health care and laboratory service, failed to establish that she was terminated in violation of the Tennessee Public Protection Act because she did not present evidence suggesting she was asked or instructed by anyone to remain silent about the alleged illegal activities. Swanson v. Summit Med. Grp., PLLC, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 118370 (E.D. Tenn. Sept. 3, 2015).

Former employee, African-American female, who worked as front office medical assistant for provider of health care and laboratory service, failed to establish that she was terminated in violation of the Tennessee Public Protection Act because she did not present evidence sufficient for a reasonable juror to conclude that her participation in protected activity or refusal to report illegalities was the sole reason for her inclusion in a reduction-in-force. Swanson v. Summit Med. Grp., PLLC, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 118370 (E.D. Tenn. Sept. 3, 2015).

Employer entitled to summary judgment on Tennessee Public Protection Act claim because employer offered evidence that it had the authority to terminate the employee based on (1) his inability to perform the essential functions of the position and (2) its discretion to not extend any further general unpaid leave under company policy. Wheeler v. Jackson Nat'l Life Ins. Co., — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 13596 (M.D. Tenn. Feb. 4, 2016), aff'd, — F.3d —, 2016 FED App. 0676N (6th Cir.), 666 Fed. Appx. 453, 2016 U.S. App. LEXIS 22423 (6th Cir. Tenn. Dec. 15, 2016).

Employer was entitled to summary judgment as to an employee's Tennessee Public Protection Act constructive discharge claim because the employee did not show the employee knew of illegal activity. Hardy v. Tenn. State Univ., — S.W.3d —, 2016 Tenn. App. LEXIS 215 (Tenn. Ct. App. Mar. 24, 2016).

City was entitled to summary judgment as to a former firefighter's retaliatory discharge claim under the Tennessee Public Protection Act (TPPA) because (1) the firefighter did not show the firefighter was fired only for activity protected under the TPPA, as the firefighter engaged in non-protected work-related conduct of repeatedly going outside of the chain of command, unprofessional conduct in public, and adversely affecting employee morale and did not show other firefighters engaging in similar work-related misconduct were not terminated, and (2) the city fired both the firefighter and the firefighter's supervisor, showing the termination was not retaliatory but an effort to improve fire department morale and functioning. Sweat v. City of McMinnville, — S.W.3d —, 2018 Tenn. App. LEXIS 158 (Tenn. Ct. App. Mar. 23, 2018).

Employer was entitled to summary judgment as to the employee's claim for retaliatory discharge under the common law and the Tennessee Public Protection Act because the employee failed to identify a specific statutory or regulatory provision that he believed had been violated or would be violated, and allegations involving questionable business practices, breaches of contracts, or failure to comply with industry standards established by private organizations did not implicate public policy of violate the Act. Konvalinka v. Fuller, — S.W.3d —, 2019 Tenn. App. LEXIS 275 (Tenn. Ct. App. May 31, 2019).

Former employee did not establish a retaliatory discharge because the employee of the State of Tennessee, Department of Correction, did not provide any evidence establishing that the employee reported alleged illegal activity to outside officials or regulators. Furthermore, the employee's refusal to violate internal policies was too remote in time to establish the requisite causal connection to the employee's termination as a result of a reduction in force. Thompson v. State, — S.W.3d —, 2020 Tenn. App. LEXIS 135 (Tenn. Ct. App. Mar. 31, 2020).

Worker was not an employee of the independent auditor and the allegations in support of the worker's Tennessee Public Protection Act claim were broad, conclusory, and failed to identify any sections of the Tennessee or United States Code intended to protect the public health, safety, or welfare, and this alone caused the worker's claim to fail as matter of law. Tidwell v. Holston Methodist Fed. Credit Union, — S.W.3d —, 2020 Tenn. App. LEXIS 291 (Tenn. Ct. App. June 25, 2020).

Because the worker did not allege that she reported her employer's alleged wrongdoing to anyone besides the board and committee chairpersons, she had not stated a viable claim. Tidwell v. Holston Methodist Fed. Credit Union, — S.W.3d —, 2020 Tenn. App. LEXIS 291 (Tenn. Ct. App. June 25, 2020).

6. Worker's Compensation Retaliation Claim.

An employee's action for retaliatory discharge was not allowed where he was discharged before he filed his worker's compensation claim and the retaliation was the withholding of severance benefits. Medley v. A. W. Chesterton Co., 912 S.W.2d 748, 1995 Tenn. App. LEXIS 584 (Tenn. Ct. App. 1995).

7. Immunity of Governmental Entity.

A county hospital authority, as a political subdivision of the state, was immune to a claim against it for retaliatory discharge under the provisions of the Governmental Tort Liability Act, T.C.A. title 29, chapter 20. Ketron v. Chattanooga-Hamilton County Hosp. Auth., 919 F. Supp. 280, 1996 U.S. Dist. LEXIS 3469 (E.D. Tenn. 1996); Coffey v. Chattanooga-Hamilton County Hosp. Auth., 932 F. Supp. 1023, 1996 U.S. Dist. LEXIS 10508 (E.D. Tenn. 1996), aff'd, Coffey v. Chattanooga Hamilton County Hosp. Auth., 1998 U.S. Dist. LEXIS 22509 (E.D. Tenn. Aug. 17, 1998).

The termination of plaintiff by defendant general manager was not an action in the general manager's individual capacity, but rather an action taken on behalf of the employer; therefore, because the general manager was acting within the scope of employment duties for the immune entities, the general manager was also shielded by the same immunity from suit under T.C.A. § 50-1-304. Smith v. Harriman Util. Bd., 26 S.W.3d 879, 2000 Tenn. App. LEXIS 78 (Tenn. Ct. App. 2000).

8. Common Law Cause of Action.

Concurrent common law cause of action did not exist in case where plaintiff could not show that she was discharged solely because of the plaintiff's refusal to participate in, or to remain silent about, illegal activities as clearly defined by public policy. Griggs v. Coca-Cola Employees' Credit Union, 909 F. Supp. 1066, 1995 U.S. Dist. LEXIS 19754 (E.D. Tenn. 1995).

Tennessee whistleblower statute, T.C.A. § 50-1-304, is cumulative, and does not preempt a plaintiff's common law cause of action for retaliatory discharge where the employee was discharged for reporting illegal or unethical conduct. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 2002 Tenn. LEXIS 326 (Tenn. 2002).

Terminated over-the-road truck driver presented sufficient evidence of a prima facie case under T.C.A. § 50-1-304; however, his common law claim of retaliatory discharge in violation of public policy was dismissed because he was not an at-will employee, but worked under a union contract. Conley v. Yellow Freight Sys., 521 F. Supp. 2d 713, 2007 U.S. Dist. LEXIS 75114 (E.D. Tenn. Oct. 9, 2007).

9. Protected Activity.

For purposes of a city employee's claim under the Tennessee Public Protection Act, or the Whistleblower Act, T.C.A. § 50-1-304, ticket-fixing activities constituted an illegal activity pursuant to T.C.A. §§ 55-10-204(a) and 39-16-402(a)(1) and (d) (now (e)), such that it was within the meaning of § 50-1-304(a)(3). Williams v. City of Burns, — S.W.3d —, 2012 Tenn. App. LEXIS 104 (Tenn. Ct. App. Feb. 15, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 353 (Tenn. May 21, 2012).

Employee failed to state a cause of action for whistleblower retaliatory discharge under the common law and T.C.A. § 50-1-304 where he only reported the illegal activity to the owner of the company, who was the one engaging in the allegedly illegal activity. Haynes v. Formac Stables, Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 786 (Tenn. Ct. App. Dec. 4, 2013), aff'd, 463 S.W.3d 34, 2015 Tenn. LEXIS 269 (Mar. 27, 2015).

Employee, who was terminated after she refused to delete work-related e-mails containing confidential client health care information that she had forwarded from her work computer to her personal account, failed to show retaliation under the Tennessee Public Protection Act because her refusal to delete the office e-mails was not a refusal to participate in illegal activities. Aldrich v. Rural Health Servs. Consortium, 579 Fed. Appx. 335, — F.3d —, 2014 U.S. App. LEXIS 15567, 2014 FED App. 625N (6th Cir. 2014).

Employee did not show the employee's firing violated T.C.A. § 50-1-304 when the employee did not go on test drives without dealer license plates and proof of insurance, because no significant public concern was implicated, as cars were clearly marked. McMillin v. Ted Russell Ford, Inc., — S.W.3d —, 2014 Tenn. App. LEXIS 450 (Tenn. Ct. App. July 31, 2014).

Trial court properly dismissed an employee's claim for retaliatory discharge under the Tennessee Public Protection Act (TPPA) because the employee could not establish that he refused to participate in or remain silent about illegal activity; leaving a bandage in a sock, where a patient's wound was otherwise sufficiently bandaged, was not illegal activity under the TPPA, and leaving the bandage in the sock was not abuse and neglect under the Tennessee Adult Protective Act. Richmond v. Vanguard Healthcare Servs., — S.W.3d —, 2016 Tenn. App. LEXIS 66 (Tenn. Ct. App. Jan. 29, 2016), appeal denied, Richmond v. Vanguard Healthcare Servs., LLC, — S.W.3d —, 2016 Tenn. LEXIS 873 (Tenn. Nov. 16, 2016).

10. Causation.

In a retaliatory discrimination suit brought under the Tennessee Public Protection Act, T.C.A. § 50-1-304, by a employee fired for doing Naval Reserve work on a company computer during company time, the evidence showed that the employee was fired, not because he made certain complaints about his employer's practices, but for his violation of the company's computer policy. Escher v. BWXT Y-12, LLC,  627 F.3d 1020, 2010 FED App. 634N, 2010 U.S. App. LEXIS 19734 (6th Cir. Sept. 22, 2010).

Employers were entitled to summary judgment on two discharged employees' claims under the Whistleblower Act because the employees could not prove an exclusive causal relationship between their whistleblowing activity relating to racial profiling and their discharge. Both employees admitted violations of the employer's cell phone and other employment policies. However, the evidence of close proximity between their complaints of racial profiling and their discharge supported their claim under the Tennessee Human Rights Act. Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 2011 Tenn. LEXIS 604 (Tenn. June 24, 2011).

Employer was not entitled to summary judgment on its claim that employee could not establish that she was terminated solely for her whistleblowing activities because the reasons for the employee's termination were hotly disputed and the employee produced evidence to show that a genuine issue of material fact existed. Coleman v. Humane Soc'y of Memphis, — S.W.3d —, 2014 Tenn. App. LEXIS 77 (Tenn. Ct. App. Feb. 14, 2014).

Trial court did not err in granting the Tennessee Department of Mental Health and Developmental Disabilities and the Commissioner of the Department summary judgment because they presented evidence that the doctor's position was included in the reduction in force since he was the least qualified; the doctor presented no evidence of an actual causal connection between his reports and the elimination of his position. Morson v. Tenn. Dep't of Mental Health & Developmental Disabilities, — S.W.3d —, 2014 Tenn. App. LEXIS 283 (Tenn. Ct. App. May 14, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 795 (Tenn. Sept. 18, 2014).

Trial court properly granted a city summary judgment in a sergeant's action alleging retaliatory discharge because the sergeant could not establish sole causation and pretext; even if the sergeant could establish a prima facie showing of sole causation, the city demonstrated legitimate, nondiscriminatory reasons for the actions about which the sergeant complained. Coffey v. City of Oak Ridge, — S.W.3d —, 2014 Tenn. App. LEXIS 564 (Tenn. Ct. App. Sept. 12, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 60 (Tenn. Jan. 16, 2015).

Trial court erred in dismissing the complaint where a trier of fact could have concluded from the officer's evidence that his employment was terminated solely for his refusal to remain silent about the police chief's alleged illegal actions. Brumley v. City of Cleveland, — S.W.3d —, 2015 Tenn. App. LEXIS 839 (Tenn. Ct. App. Oct. 15, 2015).

City was entitled to summary judgment as to officers'  Tennessee Public Protection Act claim alleging the officers were fired for reporting another officer's illegal acts because the officers'  failure to report the illegal activity for a year was a nondiscriminatory reason for the officers'  discharge. Jones v. City of Union City, — S.W.3d —, 2015 Tenn. App. LEXIS 972 (Tenn. Ct. App. Dec. 17, 2015).

Officers suing a city under the Tennessee Public Protection Act for firing the officers after the officers reported another officer's illegal activity did not show the city's nonretaliatory reason for the discharge, which was that the officers waited a year to report the activity, was a pretext for retaliation due to a failure to fire other officers aware of the activity because the other officers were not similarly situated, as the other officers reported the activity shortly after becoming aware of it. Jones v. City of Union City, — S.W.3d —, 2015 Tenn. App. LEXIS 972 (Tenn. Ct. App. Dec. 17, 2015).

City was entitled to summary judgment when a former city police officer brought a retaliatory discharge action against the city, alleging that the officer was discharged solely because of the officer's whistleblowing activities, because a trier of fact could not reasonably have concluded that the sole reason for the officer's termination was unlawful retaliation as the city had legitimate, non-retaliatory reasons for the officer's termination. Weinert v. City of Sevierville, — S.W.3d —, 2019 Tenn. App. LEXIS 26 (Tenn. Ct. App. Jan. 23, 2019).

11. Complaint Stated Cause of Action.

Employee's amended complaint specifically referred to the statute upon which the employee was relying to state a claim of retaliatory discharge, T.C.A. § 50-1-304, and thus comported with Tenn. R. Civ. P. 8.05(1). The amended complaint, while not a model of pleading, provided the employer with sufficient notice of the claims alleged and sufficiently pleaded a legal cause of action. Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 2011 Tenn. LEXIS 623 (Tenn. July 21, 2011).

In a sexual harassment and retaliation suit, the employer's motion to dismiss for failure to state a claim was denied as to the former employee's claim under the Tennessee Public Protection Act, T.C.A. § 50-1-304, because she sufficiently pled a cause of action by asserting that her supervisor's actions of commenting on her sexuality, asking to watch her perform sexual acts with other women, and other actions exceeded routine workplace jokes and teasing and caused her to be constructively discharged. Stacy v. MVT Servs., LLC, — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 84082 (M.D. Tenn. June 18, 2012).

Plaintiff's statutory retaliatory discharge claim under T.C.A. § 50-1-304(b) stated a claim since: (1) plaintiff could plead in the alternative that whistleblowing was the sole cause and one of multiple causes of his termination under Tenn. R. Civ. P. 8.05(2); (2) the allegation that the whistleblowing activity was the exclusive cause of the termination was equivalent to an allegation that it was the sole cause of the termination; and (3) any allegation to the contrary was properly construed as an alternative allegation, especially since plaintiff alleged that any other reason given for the termination was pretextual. Phelps v. Newman, — S.W.3d —, 2013 Tenn. App. LEXIS 4 (Tenn. Ct. App. Jan. 3, 2013).

Employer was not entitled to summary judgment on its claim that employee could not establish a refusal to participate claim at trial because the employee arguably revealed illegal practices and the practices involved the employee in such a way that her continued complaints about them could be characterized as a refusal to participate in and a refusal to remain silent about the activities. Coleman v. Humane Soc'y of Memphis, — S.W.3d —, 2014 Tenn. App. LEXIS 77 (Tenn. Ct. App. Feb. 14, 2014).

It was error to dismiss an employee's complaint under the Tennessee Public Protection Act (TPPA), alleging the employee was terminated for refusing to remain silent about an employer's failure to enact workplace violence policies, because the employee alleged a violation of the Occupational Safety and Health Act's general duty clause which implicated important public policy concerns in Tennessee, which satisfied the TPPA's “illegal act” requirement. Davis v. Vanderbilt Univ. Med. Ctr., — S.W.3d —, 2020 Tenn. App. LEXIS 349 (Tenn. Ct. App. Aug. 5, 2020).

12. Complete Severance of Employment Required.

Employee's complaint against a university was insufficient to state a claim under Tennessee Public Protection Act (TPPA), T.C.A. § 50-1-304, because, although the employee alleged that he was demoted for refusing to participate in or for refusing to remain silent about illegal activities, the TPPA required a complete severance of employment to bring suit; the university had removed the employee as department head, but continued to employ him as a tenured professor after removing him as department head. Harman v. Univ. of Tenn., 353 S.W.3d 734, 2011 Tenn. LEXIS 871 (Tenn. Sept. 16, 2011).

13. No Right to Jury Trial.

Employee was not entitled to a jury trial on his retaliation claim because such claims were not “brought under” the Governmental Tort Liability Act, but were brought under the Tennessee Public Protection Act, an independent statute that established its own rights and remedies, no similar statute of general application afforded the employee a right to trial by jury, the civil procedure rule was merely descriptive of the constitutional right to a jury trial and did not itself confer an independent right to trial by jury, and the employee was not entitled to a jury trial under the state constitution on his claim where the claim did not exist at common law. Young v. City of Lafollette, 479 S.W.3d 785, 2015 Tenn. LEXIS 695 (Tenn. Aug. 26, 2015).

14. Burden of Proof.

Because an employee's cause of action accrued in 2013, the burden-shifting framework under the statute applied to the motion for summary judgment filed by a doctor and nurse practitioner. Richmond v. Vanguard Healthcare Servs., — S.W.3d —, 2016 Tenn. App. LEXIS 66 (Tenn. Ct. App. Jan. 29, 2016), appeal denied, Richmond v. Vanguard Healthcare Servs., LLC, — S.W.3d —, 2016 Tenn. LEXIS 873 (Tenn. Nov. 16, 2016).

Collateral References.

After-acquired evidence of employee's misconduct as barring or limiting recovery in action for wrongful discharge. 34 A.L.R.5th 699.

Preemption of state-law wrongful discharge claim, not arising from whistleblowing, by § 301(a) of Labor-Management Act of 1947 (29 U.S.C.A. § 185(a)). 184 A.L.R. Fed. 241.

Preemption of state-law wrongful discharge claim, not arising from whistleblowing, by § 541(a) of Employee Retirement Income Security Act of 1974 (29 U.S.C.A. § 1144(a)). 176 A.L.R. Fed. 433.

Pre-emption of wrongful discharge cause of action by civil rights laws. 21 A.L.R.5th 1.

What constitutes activity of employee, other than reporting wrongdoing, protected under state whistleblower protection statute. 13 A.L.R.6th 499.

What constitutes activity of employee protected under state whistleblower protection statute covering employee's report, disclosure, notification, or the like of wrongdoing — Sufficiency of report. 10 A.L.R.6th 531.

What constitutes activity of private-sector employee protected under state whistleblower protection statute covering employee's “report,” “disclosure,” “notification,” or the like of wrongdoing — Nature of activity reported. 36 A.L.R.6th 203.

What constitutes activity of public or state employee protected under state whistleblower protection statute covering employee's “report,” “disclosure,” “notification,” or the like of wrongdoing — Nature of activity reported. 37 A.L.R.6th 137.

Who are “public employers” or “public employees” within the meaning of state whistleblower protection acts. 90 A.L.R.5th 687.

Wrongful discharge based on public policy derived from professional ethics codes. 52 A.L.R.5th 405.

50-1-305. Breast milk expressing by employees — Break time and place.

  1. As used in this section, “employer” means a person or entity that employs one (1) or more employees and includes the state and its political subdivisions.
  2. An employer shall provide reasonable unpaid break time each day to an employee who needs to express breast milk for that employee's infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee. An employer shall not be required to provide break time under this section if to do so would unduly disrupt the operations of the employer.
  3. The employer shall make reasonable efforts to provide a room or other location in close proximity to the work area, other than a toilet stall, where the employee can express breast milk in privacy. The employer shall be held harmless if reasonable efforts have been made to comply with this subsection (c).

Acts 1999, ch. 161, § 1.

Cross-References. Breastfeeding, title 68, ch. 58.

50-1-306. Authorization of patient to market or sell medical information.

  1. As used in this section, “medical information” includes lists of employees or family members receiving health insurance. “Medical information” does not include information that does not identify the patient.
  2. It is unlawful for any employer, or an agent, contractor or employee of an employer, to market or sell medical information that directly identifies an employee, unless the patient has authorized the release in written, electronic or other form that indicates the patient's consent, including records for medical services provided or paid for by the employer for purposes unrelated to:
    1. The provision of health care to the employee or family members receiving health insurance;
    2. Payment for health care to the employee or family members receiving health insurance; or
    3. Administration of any health plan or program offered by the plan.
  3. A violation of this section shall be punished as a Class C misdemeanor.
  4. This section shall not apply to information for which the employee or family member has executed a voluntary waiver or release.

Acts 2000, ch. 769, § 2.

Compiler's Notes. Acts 2000, ch. 769, § 3, provided that this section and § 56-7-124 shall only take effect to the extent permitted by federal law, including, but not limited to, the Employee Retirement Income Security Act of 1974 [29 U.S.C. § 1001 et seq.], and to the extent that any necessary approvals under the federal waiver for TennCare (or a successor entity or program) have been secured from the federal health care financing administration.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Release of information relating to physical or mental health of patient, § 56-7-124.

50-1-307. Volunteer firefighters — Rights against termination.

  1. No employer shall terminate an employee who is a volunteer firefighter solely because the employee, when acting as a volunteer firefighter, is absent or late to the employee's employment in order to respond to an emergency prior to the time the employee is to report to employee's place of employment.
  2. An employer may charge against the employee's regular pay any time that an employee who is a volunteer firefighter loses from employment because of the employee's response to an emergency.
  3. An employer has the right to request an employee who loses time from the employee's employment to respond to an emergency to provide the employer with a written statement from the supervisor or acting supervisor of the volunteer fire department stating that the employee responded to an emergency and list the time and date of the emergency.
  4. Any employee who is absent or late to the employee's employment in order to respond to an emergency shall make a reasonable effort to notify the employee's employer that the employee may be absent or late.
  5. Any employee terminated in violation of this section may bring a civil action against the employee's employer. The employee may seek reinstatement to the employee's former position, payment of back wages, reinstatement of fringe benefits, and where seniority rights are granted, the reinstatement of seniority rights. The employee has one (1) year from the date of a violation of this section to file an action.

Acts 2003, ch. 148, § 1.

Law Reviews.

The Law at Work: Volunteer Firefighter Paid Leave (Edward G. Phillips), 44 Tenn. B.J. 37 (2008).

50-1-308. Payroll deductions for health insurance premiums.

Notwithstanding any other law, any employer, including, but not limited to, state and local government employers, that offers health insurance regulated under title 56 to its employees, may provide a payroll deduction for the employee portion of the health insurance premiums on the request of any employee who participates in the health insurance program.

Acts 2006, ch. 590, § 1.

50-1-309. Volunteer firefighters — Permission to leave work — Allowance for time off following response to fire call.

    1. Notwithstanding § 50-1-307, any employee who is an active volunteer firefighter may be permitted to leave work in order to respond to fire calls during the employee's regular hours of employment without loss of pay, vacation time, sick leave or earned overtime accumulation. The employee may be permitted to take off the next scheduled work period within twelve (12) hours following the response as a vacation day or sick leave day without loss of pay, if the employee assisted in fighting the fire for more than four (4) hours. If the employee is not entitled to a vacation day or sick leave day, then the employee may be permitted to take off the work period without pay.
    2. In addition to subdivision (a)(1), any employee who is an active volunteer firefighter and who worked for more than four (4) hours the prior day or night as a volunteer firefighter in an emergency may be permitted to take off the next scheduled work period within twelve (12) hours following the emergency as a vacation day or sick leave day without the loss of pay. If the employee is not entitled to a vacation day or sick leave day then the employee may be permitted to take off the work period without pay.
  1. The employer may require the employee to submit a written statement from the chief of the volunteer fire department verifying that the employee responded to a fire or was on-call and specifying the date, time and duration of the response.

Acts 2008, ch. 791, § 1.

Code Commission Notes.

Acts 2008, ch. 885, § 1 purported to add a new section as § 50-1-309. Since Acts 2008, ch. 791, § 1 added § 50-1-309, Acts 2008, ch. 885, § 1 was added as § 50-1-310.

Law Reviews.

The Law at Work: Volunteer Firefighter Paid Leave (Edward G. Phillips), 44 Tenn. B.J. 37 (2008).

50-1-310. Discharge of teacher for refusal to participate in or remain silent about illegal activities — Damages — Frivolous lawsuits.

  1. No teacher employed by a local education agency shall be discharged, terminated, or otherwise discriminated against with respect to compensation, terms, conditions or privileges of employment solely for refusing to participate in, or for refusing to remain silent about, illegal activities.
  2. As used in this section, “illegal activities” means activities that are in violation of the criminal or civil code of this state or the United States or any regulation intended to protect the public health, safety or welfare.
    1. Any teacher terminated or discriminated against in violation of subsection (a) shall have a cause of action against the employer for violation of this section and any other damages to which the employee may be entitled.
    2. Any teacher terminated or discriminated against in violation of subsection (a) solely for refusing to participate in, or for refusing to remain silent about, illegal activities who prevails in a cause of action against an employer for such prohibited actions shall be entitled to recover reasonable attorney fees and costs.
    1. This section shall not be used for frivolous lawsuits and anyone who files a frivolous lawsuit is subject to sanction as provided in subdivision (d)(2).
    2. If any teacher files a cause of action for retaliatory discharge for any improper purpose, such as to harass or to cause needless increase in costs to the employer, the court, upon motion or upon its own initiative, shall impose upon the teacher an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred, including reasonable attorney's fee.

Acts 2008, ch. 885, § 1.

Code Commission Notes.

Acts 2008, ch. 885, § 1 purported to add a new section as § 50-1-309. Since Acts 2008, ch. 791, § 1 added § 50-1-309, Acts 2008, ch. 885, § 1 was added as § 50-1-310.

50-1-311. Employer prohibited from using results of voice stress analysis to prove misconduct by employee.

  1. As used in this section, “voice stress analysis” means the use of a device that has the ability to electronically analyze the responses of an individual to a specific set of questions and to record the analysis, both digitally and on a graph.
  2. At any hearing or other employment procedure in which an employee is entitled to due process, no employer shall introduce the results of a voice stress analysis performed on an employee to prove misconduct by the employee.

Acts 2014, ch. 928, § 1.

Effective Dates. Acts 2014, ch. 928, § 3. July 1, 2014.

50-1-312. Adverse employment action for transporting or storing firearm or ammunition in employer parking area prohibited — Cause of action.

  1. For the purposes of this section:
    1. “Employee” means a natural person who performs services for an employer for valuable consideration and who possesses a valid handgun carry permit recognized in this state; and
    2. “Employer” means a person, association, or legal or commercial entity receiving services from an employee and, in return, giving compensation of any kind to the employee.
      1. No employer shall discharge or take any adverse employment action against an employee solely for transporting or storing a firearm or firearm ammunition in an employer parking area in a manner consistent with § 39-17-1313(a).
      2. An employee discharged, or subject to an adverse employment action, in violation of subdivision (b)(1)(A) shall have a cause of action against the employer to enjoin future acts in violation of this section and to recover economic damages plus reasonable attorney fees and costs.
      3. Any action brought under this section shall be filed in the chancery or circuit court having jurisdiction in the county where the alleged violation of subdivision (b)(1)(A) occurred.
    1. In any action brought pursuant to this section, the employee shall have the burden of establishing a prima facie case of discharge, or adverse employment action, based solely on the employee's transporting or storing a firearm or firearm ammunition in the employer's parking area in a manner consistent with § 39-17-1313(a). If the employee satisfies this burden, the burden shall then be on the employer to produce evidence that one (1) or more legitimate reasons existed for the employee's discharge or adverse employment action. The burden on the employer is one of production and not persuasion. If the employer produces such evidence, the presumption of discharge, or adverse employment action, raised by the employee's prima facie case is rebutted, and the burden shifts to the employee to demonstrate that the reason given by the employer was not the true reason for the employee's discharge, or adverse employment action, and that the stated reason was a pretext for discharge or adverse employment action. The allocations of burdens of proof set out in this subdivision (b)(2) shall apply at all stages of the proceedings, including motions for summary judgment. The employee at all times retains the burden of persuading the trier of fact that the employee has been the victim of discharge, or adverse employment action, based solely on the employee's adherence with § 39-17-1313(a).
    2. The employee has one (1) year from the date of termination of employment, or the date of adverse employment action, to file an action pursuant to this section.
  2. The presence of a firearm or ammunition within an employer's parking area in accordance with § 39-17-1313 does not by itself constitute a failure by the employer to provide a safe workplace.
  3. Except as otherwise provided in § 39-17-1313 for parking areas, nothing in this section shall be construed as prohibiting an employer from prohibiting firearms or firearm ammunition on the premises of the employer.

Acts 2015, ch. 80, § 1.

Compiler's Notes. Acts 2015, ch. 80, § 2 provided that the act shall apply to employee terminations, and adverse employment actions, occurring on and after July 1, 2015.

Effective Dates. Acts 2015, ch. 80, § 2. July 1, 2015.

Part 4
Private Pensions and Retirement Plans

50-1-401. “Private pension and retirement plan” defined — Separate trust account established for employee contributions.

  1. As used in this part, “private pension and retirement plan” means any plan not covered by the federal employee retirement income security program, the Tennessee consolidated retirement system, or any other governmentally regulated pension and retirement fund.
    1. Any person maintaining a private pension and retirement plan that receives its funding either partially or totally from the employees' pay shall deposit all money received for the plan in a separate trust account.
    2. The funds in this separate account can only be used for the costs of administering the plan and for providing the benefits that accrue to the members of the plan.

Acts 1978, ch. 834, § 1; T.C.A., § 50-401; T.C.A., § 50-801.

50-1-402. Violation — Penalty.

A violation of § 50-1-401, requiring all funds in a private pension and retirement fund to be deposited in a separate trust account, is a Class E felony.

Acts 1979, ch. 122, § 1; T.C.A., § 50-802; Acts 1989, ch. 591, § 46.

Cross-References. Penalty for Class E felony, § 40-35-111.

Part 5
Healthy Workplace Act

50-1-501. Short title.

This part shall be known and may be cited as the “Healthy Workplace Act.”

Acts 2014, ch. 997, § 1.

Compiler's Notes. Former part 5, §§ 50-1-50150-1-505, concerning maternity leave, was transferred to § 4-21-408 in 1988.

Effective Dates. Acts 2014, ch. 997, § 2. May 22, 2014.

Attorney General Opinions. Each “employer” may adopt a policy conforming to T.C.A. § 50-1-503(b).  When the employer is a local governmental entity, such as a county or a municipality, the question of who has authority within that local governmental entity to adopt such a policy is a matter of local law and will depend in each case on the particular charter of the local government, its ordinances, rules, and regulations. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

The Healthy Workplace Act of 2014 does not create a new cause of action against state or local employers or against state or local employees for abusive conduct in the workplace.  It appears that when a state or local government complies with the policy-adoption requirement of T.C.A. § 50-1-503(b), that entity would, under certain circumstances, acquire a specific supplement to the immunity already applicable under the Governmental Tort Liability Act (GTLA) and the Tennessee Claims Commission Act. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

The Healthy Workplace Act extends to quasi-governmental entities. “Employer” is defined in the Act as any agency, county, metropolitan government, municipality, or other political subdivision of the state. The definition of “agency” in the Act includes all boards, offices, and other agencies of the executive, legislative, or judicial branches of government. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

50-1-502. Part definitions.

As used in this part:

  1. “Abusive conduct” means acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment, such as:
    1. Repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets;
    2. Verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace; or
    3. The sabotage or undermining of an employee's work performance in the workplace;
  2. “Agency” means any department, commission, board, office or other agency of the executive, legislative or judicial branch of state government;
  3. “Employee” means an employee of any county, metropolitan government, municipality, or other political subdivision of this state;
  4. “Employer” means a private employer and a state or local governmental entity;
  5. “Harassment” means two (2) or more instances of contact serving no legitimate purpose directed at an employee, in connection with that person's status as an employee, that a reasonable person would consider alarming, threatening, intimidating, abusive, or emotionally distressing and that does or reasonably could interfere with the performance of the employee's duties; and
  6. “Instance of contact” means a direct communication or physical touching.

Acts 2014, ch. 997, § 1; 2019, ch. 214, § 1; 2019, ch. 331, § 1.

Compiler's Notes. Former part 5, §§ 50-1-50150-1-505, concerning maternity leave, was transferred to § 4-21-408 in 1988.

Amendments. The 2019 amendment by ch. 214 rewrote the definition of “employer” which read: “‘Employer’ means any agency, county, metropolitan government, municipality, or other political subdivision of this state.”

The 2019 amendment by ch. 331 added the definitions of “employee”, “harassment” and “instance of contact”.

Effective Dates. Acts 2014, ch. 997, § 2. May 22, 2014.

Acts 2019, ch. 214, § 3. April 23, 2019.

Acts 2019, ch. 331, § 3. May 10, 2019.

Attorney General Opinions. The Healthy Workplace Act extends to quasi-governmental entities. “Employer” is defined in the Act as any agency, county, metropolitan government, municipality, or other political subdivision of the state. The definition of “agency” in the Act includes all boards, offices, and other agencies of the executive, legislative, or judicial branches of government. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

The Healthy Workplace Act of 2014 does not create a new cause of action against state or local employers or against state or local employees for abusive conduct in the workplace.  It appears that when a state or local government complies with the policy-adoption requirement of T.C.A. § 50-1-503(b), that entity would, under certain circumstances, acquire a specific supplement to the immunity already applicable under the Governmental Tort Liability Act (GTLA) and the Tennessee Claims Commission Act. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

Each “employer” may adopt a policy conforming to T.C.A. § 50-1-503(b).  When the employer is a local governmental entity, such as a county or a municipality, the question of who has authority within that local governmental entity to adopt such a policy is a matter of local law and will depend in each case on the particular charter of the local government, its ordinances, rules, and regulations. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

50-1-503. Development of model policy for employers to prevent abusive conduct in the workplace — Requirements of policy.

  1. No later than March 1, 2015, the Tennessee advisory commission on intergovernmental relations (TACIR) shall create a model policy for employers to prevent abusive conduct in the workplace. The model policy shall be developed in consultation with the department of human resources and interested municipal and county organizations including, but not limited to, the Tennessee municipal league, the Tennessee county services association, the municipal technical advisory service (MTAS), and the county technical assistance service (CTAS).
  2. The model policy created pursuant to subsection (a) shall:
    1. Assist employers in recognizing and responding to abusive conduct in the workplace; and
    2. Prevent retaliation against any employee who has reported abusive conduct in the workplace.
  3. Each employer may adopt the policy created pursuant to subsection (a) as a policy to address abusive conduct in the workplace.

Acts 2014, ch. 997, § 1.

Compiler's Notes. Former part 5, §§ 50-1-50150-1-505, concerning maternity leave, was transferred to § 4-21-408 in 1988.

Effective Dates. Acts 2014, ch. 997, § 2. May 22, 2014.

Attorney General Opinions. The Healthy Workplace Act extends to quasi-governmental entities. “Employer” is defined in the Act as any agency, county, metropolitan government, municipality, or other political subdivision of the state. The definition of “agency” in the Act includes all boards, offices, and other agencies of the executive, legislative, or judicial branches of government. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

The Healthy Workplace Act of 2014 does not create a new cause of action against state or local employers or against state or local employees for abusive conduct in the workplace.  It appears that when a state or local government complies with the policy-adoption requirement of T.C.A. § 50-1-503(b), that entity would, under certain circumstances, acquire a specific supplement to the immunity already applicable under the Governmental Tort Liability Act (GTLA) and the Tennessee Claims Commission Act. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

Each “employer” may adopt a policy conforming to T.C.A. § 50-1-503(b).  When the employer is a local governmental entity, such as a county or a municipality, the question of who has authority within that local governmental entity to adopt such a policy is a matter of local law and will depend in each case on the particular charter of the local government, its ordinances, rules, and regulations. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

The Healthy Workplace Act of 2014 does not constitute an unlawful delegation of legislative authority in violation of the Tennessee Constitution. OAG 15-39, 2015 Tenn. AG LEXIS 40 (4/22/15).

If proposed legislation, HB 856/SB 815, 111th Tenn. Gen. Assem. (2019) [this bill did become law and was enacted as chapter 214 of the Public Acts of 2019], which would add private employers to the entities covered by the Healthy Workplace Act,  becomes law, private employers who adopted the statutorily required anti-bullying policies would receive the same immunity under the  Act as do public employers who adopt such policies. A private employer who had not adopted the model anti-bullying policy would not be immune from suit unless the employer had adopted an anti-bullying policy that satisfied the requirements of T.C.A. § 50-1-503(b). Furthermore, the proposed language that would be added to T.C.A. § 50-1-504 makes it clear that neither the Act nor the proposed legislation creates a cause of action against employers—public or private—who fail to adopt the model policy or a policy that satisfies the requirements of T.C.A. § 50-1-503(b). OAG 19-04, 2019 Tenn. AG LEXIS 4 (4/3/2019).

50-1-504. Immunity of employer when policy adopted — Cause of action against employer not created.

  1. Notwithstanding § 29-20-205, if an employer adopts the model policy created by TACIR pursuant to § 50-1-503(a) or adopts a policy that conforms to the requirements set out in § 50-1-503(b), then the employer is immune from suit for any employee's abusive conduct that results in negligent or intentional infliction of mental anguish. Nothing in this section limits the personal liability of an employee for any abusive conduct in the workplace.
  2. Nothing in this section creates a cause of action against an employer who does not adopt the model policy created by TACIR pursuant to § 50-1-503(a) or adopt a policy conforming to the requirements set out in § 50-1-503(b).

Acts 2014, ch. 997, § 1; 2019, ch. 214, § 2.

Compiler's Notes. Former part 5, §§ 50-1-50150-1-505, concerning maternity leave, was transferred to § 4-21-408 in 1988.

Amendments. The 2019 amendment, in (a), substituted “is immune” for “shall be immune” in the first sentence, and substituted “limits” for “shall be construed to limit” in the second sentence; and added (b).

Effective Dates. Acts 2014, ch. 997, § 2. May 22, 2014.

Acts 2019, ch. 214, § 3. April 23, 2019.

Attorney General Opinions. The Healthy Workplace Act extends to quasi-governmental entities. “Employer” is defined in the Act as any agency, county, metropolitan government, municipality, or other political subdivision of the state. The definition of “agency” in the Act includes all boards, offices, and other agencies of the executive, legislative, or judicial branches of government. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

Each “employer” may adopt a policy conforming to T.C.A. § 50-1-503(b).  When the employer is a local governmental entity, such as a county or a municipality, the question of who has authority within that local governmental entity to adopt such a policy is a matter of local law and will depend in each case on the particular charter of the local government, its ordinances, rules, and regulations. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

The Healthy Workplace Act of 2014 does not create a new cause of action against state or local employers or against state or local employees for abusive conduct in the workplace.  It appears that when a state or local government complies with the policy-adoption requirement of T.C.A. § 50-1-503(b), that entity would, under certain circumstances, acquire a specific supplement to the immunity already applicable under the Governmental Tort Liability Act (GTLA) and the Tennessee Claims Commission Act. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

The Healthy Workplace Act of 2014 does not constitute an unlawful delegation of legislative authority in violation of the Tennessee Constitution. OAG 15-39, 2015 Tenn. AG LEXIS 40 (4/22/15).

If proposed legislation, HB 856/SB 815, 111th Tenn. Gen. Assem. (2019) [this bill did become law and was enacted as chapter 214 of the Public Acts of 2019], which would add private employers to the entities covered by the Healthy Workplace Act,  becomes law, private employers who adopted the statutorily required anti-bullying policies would receive the same immunity under the  Act as do public employers who adopt such policies. A private employer who had not adopted the model anti-bullying policy would not be immune from suit unless the employer had adopted an anti-bullying policy that satisfied the requirements of T.C.A. § 50-1-503(b). Furthermore, the proposed language that would be added to T.C.A. § 50-1-504 makes it clear that neither the Act nor the proposed legislation creates a cause of action against employers—public or private—who fail to adopt the model policy or a policy that satisfies the requirements of T.C.A. § 50-1-503(b). OAG 19-04, 2019 Tenn. AG LEXIS 4 (4/3/2019).

50-1-505. Injunction against person who commits harassment against employee of county, municipal, or metropolitan government.

A county, municipal, or metropolitan government may, through its attorney, seek an injunction against a person who commits harassment against an employee. The injunction may be sought in any court of competent jurisdiction having the power to grant injunctions. Nothing in this section shall be construed to authorize any cause of action unrelated to a person's status as an employee.

Acts 2019, ch. 331, § 2.

Effective Dates. Acts 2019, ch. 331, § 3. May 10, 2019.

50-1-506. Injunction against person who commits harassment against state employee.

  1. The state may, through the office of the attorney general, seek an injunction against a person who commits harassment against a state employee. The injunction may be sought in any court of competent jurisdiction having the power to grant injunctions. This section does not authorize any cause of action unrelated to a person's status as a state employee. This section does not authorize a court to issue an injunction prohibiting activities that are protected by the constitutions of this state or the United States, including, but not limited to, political speech.
  2. Notwithstanding § 50-1-502, as used in this section, “state employee” has the same meaning as defined in § 8-42-101.

Acts 2020, ch. 694, § 1.

Effective Dates. Acts 2020, ch. 694, § 2, June 11, 2020.

Part 6
Plant Closings and Reduction in Operations

50-1-601. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Employer” means any person, corporation or other entity that employs at least fifty (50) but not more than ninety-nine (99) full-time employees at a workplace located within this state, and that is not excluded or exempt from the requirements of the Employment Security Law, compiled in chapter 7 of this title;
  2. “Reduction in operations” means:
    1. The closure of a workplace, or a portion of the operations in the workplace, whereby the number of employees working within the workplace is permanently or indefinitely reduced by fifty (50) or more during any three-month period;
    2. The modernization of a workplace, or a portion of the operations in the workplace, whereby the number of employees working within the workplace is permanently or indefinitely reduced by fifty (50) or more during any three-month period;
    3. The relocation of a workplace, or a portion of the operations in the workplace, to another site located more than fifty (50) miles from the workplace, whereby the number of employees working within the workplace is permanently or indefinitely reduced by fifty (50) or more during any three-month period; or
    4. The implementation or application of any management policy within a workplace, whereby the number of employees working within the workplace is permanently or indefinitely reduced by fifty (50) or more during any three-month period; and
  3. “Workplace” means a factory, plant, office or other facility where employees produce goods or provide services.

Acts 1988, ch. 997, § 2; 1989, ch. 399, § 1.

Cross-References. State officials notified of plant closings or mass layoffs, § 50-1-104.

Law Reviews.

The Effect of the 1988 Federal Plant Closing Legislation on Tennessee Employers (Carol Daugherty Rasnic), 25 No. 5 Tenn. B.J. 26 (1989).

50-1-602. Notification of employees and state.

  1. Upon notifying affected employees of a reduction in operations, the employer shall then notify state government by telephoning the commissioner of labor and workforce development and informing the commissioner of the circumstances of the reduction in operations, as well as the number of employees affected.
    1. The commissioner of labor and workforce development shall obtain and operate a toll-free telephone line for the purpose of receiving and encouraging employer compliance with subsection (a).
    2. The commissioner shall regularly undertake appropriate activities to inform and remind employers of the existence of the toll-free telephone line and of the requirements contained in subsection (a).
  2. Upon receiving initial notification of a reduction in operations, the commissioner shall immediately advise the commissioners of economic and community development, education, health, human services, and mental health and substance abuse services, the executive director of the state board of education, and the chancellor of the board of regents of the state university and community college system, concerning the circumstances of the reduction in operations and the number of affected employees.

Acts 1988, ch. 997, § 3; 1989, ch. 399, § 3; 1999, ch. 520, § 41; 2010, ch. 1100, § 85; 2012, ch. 575, § 2.

Compiler's Notes. The toll-free telephone number referred to in (b) is: 1-800-255-5872.

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. State officials notified of plant closings or mass layoffs, § 50-1-104.

Law Reviews.

The Effect of the 1988 Federal Plant Closing Legislation on Tennessee Employers (Carol Daugherty Rasnic), 25 No. 5 Tenn. B.J. 26 (1989).

50-1-603. Provisions not applicable in certain situations.

Section 50-1-602(a) shall not apply to any reduction in operations that:

  1. Results solely from a labor dispute;
  2. Occurs at a construction site or other temporary workplace; or
  3. Results from seasonal factors, as determined by the rules of the commissioner of labor and workforce development to be customary within the business or industry.

Acts 1988, ch. 997, § 4; 1989, ch. 399, § 3; 1999, ch. 520, § 41.

50-1-604. Rules.

The commissioner of labor and workforce development shall promulgate rules necessary to implement this part in an orderly and efficient manner, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1988, ch. 997, § 5; 1989, ch. 399, § 3; 1999, ch. 520, § 41.

Part 7
Tennessee Lawful Employment Act

50-1-701. Short title.

This part shall be known and may be cited as the “Tennessee Lawful Employment Act.”

Acts 2011, ch. 436, § 5.

NOTES TO DECISIONS

1. Applicability.

Recent amendments to the Tennessee Public Protection Act, or the Whistleblower Act, T.C.A. § 50-1-304, at T.C.A. §§ 50-1-304(f) and 50-1-701, were inapplicable to a case where the cause of action accrued before June 10, 2011. Williams v. City of Burns, — S.W.3d —, 2012 Tenn. App. LEXIS 104 (Tenn. Ct. App. Feb. 15, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 353 (Tenn. May 21, 2012).

50-1-702. Part definitions.

As used in this part:

  1. “Commissioner” means the commissioner of labor and workforce development, or the commissioner's designee;
  2. “Department” means the department of labor and workforce development, unless the context provides otherwise;
  3. “Department of homeland security” means the United States department of homeland security, or the appropriate agency or division within such department, or any successor department, agency, or division thereto;
  4. “Economic development incentive” means any grant, loan or performance-based incentive from any governmental entity;
  5. “Employee” means any individual for whom an employer must complete a Form I-9 pursuant to federal law and regulations, and does not include an independent contractor as defined by 8 U.S.C. § 1324a and its regulations;
  6. “Employer” means private employers and governmental entities;
  7. “E-Verify program” means the federal electronic work authorization verification service provided by the department of homeland security pursuant to the federal Basic Pilot Program Extension and Expansion Act of 2003, P.L. 108-156, or any successor program thereto;
  8. “Governmental entity” means this state or any political subdivision which exercises governmental powers under the laws of this state and uses tax revenues;
  9. “Internet access” means Internet service that is installed and accessible at an employer's place of business;
  10. “License” means any certificate, approval, registration, or similar form of permission issued by a local government with respect to business licensure as described in title 67, chapter 4;
  11. “Non-employee” means any individual, other than an employee, paid directly by the employer in exchange for the individual's labor or services;
  12. “Person” means an individual, corporation, partnership, or other legal entity;
  13. “Private employer” means any person who is required by federal law and regulations to report, for any purpose, remuneration paid to at least six (6) employees; and
  14. “Tax form” means any form issued by the United States internal revenue service, including, but not limited to, Form W-2, Form-1099 or Form-1040.

Acts 2011, ch. 436, § 5; 2012, ch. 736, § 1.

Compiler's Notes. The Basic Pilot Program Extension and Expansion Act of 2003, P.L. 108-156, referred to in this section, amended 8 U.S.C. §§ 1153 note, 1324a note, 1360 note, and appears in part as 8 U.S.C. § 1153 note.

50-1-703. Duties of employers — Office of employment verification assistance — Application — Complaints for violations — Commissioner's order on finding of violation — Penalties.

    1. Employers shall:
      1. For non-employees, request and maintain a copy, pursuant to subdivision (a)(4), of any one (1) of the following documents prior to the non-employee providing labor or services:
        1. A valid Tennessee driver license or photo identification license issued by the department of safety;
        2. A valid driver license or photo identification license issued by another state where the issuance requirements are at least as strict as those in this state, as determined by the department. The commissioner, in consultation with the department of safety, shall determine which states have issuance requirements that are at least as strict as this state, and shall develop, and periodically update, a publicly accessible list of such states on the department's web site;
        3. An official birth certificate issued by a United States state, jurisdiction or territory;
        4. A United States government-issued certified birth certificate;
        5. A valid, unexpired United States passport;
        6. A United States certificate of birth abroad (DS-1350 or FS-545);
        7. A report of birth abroad of a citizen of the United States (FS-240);
        8. A certificate of citizenship (N560 or N561);
        9. A certificate of naturalization (N550, N570 or N578);
        10. A United States citizen identification card (I-197 or I-179); or
        11. Valid alien registration documentation or other proof of current immigration registration recognized by the United States department of homeland security that contains the individual's complete legal name and current alien admission number or alien file number (or numbers if the individual has more than one (1) number); and
      2. For employees, either:
        1. Request and maintain a copy, pursuant to subdivision (a)(4), of any one (1) of the documents described in (a)(1)(A)(i)-(xi) prior to the employee providing labor or services; or
        2. (a)  Enroll in the E-Verify program prior to hiring an employee;
          1. (ii)  (a)  Enroll in the E-Verify program prior to hiring an employee;
          2. Verify the work authorization status of the employee hired by using the E-Verify program; and
          3. Maintain a record of any results generated by the E-Verify program for that particular employee in a manner consistent with subdivision (a)(4).
      1. An employer who verifies the work authorization status of an employee pursuant to subdivision (a)(1)(B)(ii) has not violated § 50-1-103(b) with respect to the particular employee if the employer meets the requirements in § 50-1-103(d).
      2. No employer shall prevail in any proceeding where a violation of § 50-1-103 is alleged if the sole evidence presented by the employer is evidence of compliance with subdivisions (a)(1)(A) or (a)(1)(B)(i).
    2. No employer shall be in violation of subdivision (a)(1)(B) or subsection (b) if the employer has requested, but has not received, assistance pursuant to subdivision (a)(6).
    3. An employer shall maintain:
      1. A record of results generated by the E-Verify program pursuant to (a)(1)(B)(ii) with respect to an employee for three (3) years after the date of the employee's hire or for one (1) year after the employee's employment is terminated, whichever is later; and
      2. Documentation received pursuant to subdivisions (a)(1)(A) and (a)(1)(B)(i) for three (3) years after the documentation is received by the employer or for one (1) year after the employee or non-employee ceases to provide labor or services for the employer, whichever is later.
    4. Nothing in this section shall be construed to prevent an employer from contracting with or otherwise obtaining the services of an E-Verify employer agent, or similar third party, for the purpose of complying with subdivision (a)(1)(B)(ii).
    5. There is created within the department the office of employment verification assistance. The department is authorized to enter into any memorandum of understanding or other agreement required by the E-Verify program to operate this office. If an employer does not have Internet access, then the office shall, at no charge to the employer, enroll the employer in the E-Verify program or conduct work authorization status checks of the employer's employees by using the E-Verify program; provided, that the employer signs a prescribed form, under penalty of perjury, attesting to the employer's lack of Internet access and completes any paperwork required by the E-Verify program to permit the office to provide such assistance.
    6. Except as otherwise provided in subsection (c), the department shall conduct an investigation concerning an employer's compliance with subdivision (a)(1) or subsection (b) in conjunction with any pending inquiry, investigation, or inspection of the employer by the department, or any successor agencies thereto. If the commissioner determines that the investigation report contains evidence of a violation of subdivision (a)(1) or subsection (b), then the commissioner shall issue a notice and initial order pursuant to subdivision (d)(1).
  1. Notwithstanding subdivision (a)(1)(B), private employers with fifty (50) or more employees, on or after January 1, 2017, shall comply with the requirements in subdivision (a)(1)(B)(ii); provided, that such employers shall only be required to use the E-Verify program to verify the work authorization status of employees hired on or after January 1, 2017.
    1. Any lawful resident of this state or employee of a federal agency may file a complaint alleging a violation of subdivision (a)(1) or subsection (b) to the department. The complaint shall, at a minimum, include the name of the individual filing the complaint, and satisfactory evidence of a violation as determined by the commissioner.
    2. On receipt of a complaint, the commissioner shall determine if the complaint contains satisfactory evidence of a violation of subdivision (a)(1) or subsection (b); provided, that the commissioner shall inform the individual filing the complaint the basis for such determination. The commissioner shall not investigate complaints that are based solely on race, color or national origin.
    3. If the commissioner determines that the investigation report contains evidence of a violation of subdivision (a)(1) or subsection (b), then the commissioner shall issue a notice and initial order pursuant to subdivision (d)(1). Upon request by the employer, the department shall provide the employer with the name of the individual filing a complaint if a complaint is filed.
    4. [Deleted by 2016 amendment.]
    1. If the commissioner determines that an employer has violated subdivision (a)(1) or subsection (b), pursuant to subdivision (a)(7) or (c)(3), or determines that an employer has violated § 50-1-704, then the commissioner shall issue a notice and initial order that shall include, at a minimum:
      1. The commissioner's findings and determinations;
      2. The penalties that will apply pursuant to subsections (f)-(j);
      3. The process to request a contested case hearing; and
      4. The process by which the commissioner shall waive all penalties for a first violation as provided in subdivision (d)(3).
    2. An employer shall have the right to appeal, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, a notice and initial order issued by the commissioner pursuant to this section; provided, that the employer sends written notice to the commissioner within thirty (30) days of the date of the notice and initial order. If the employer fails to send such written notice, then the contested case hearing process is waived.
    3. The commissioner shall issue a warning in lieu of all penalties for a first violation of subdivision (a)(1) or subsection (b) if:
      1. The employer complies with all remedial action requested by the department to remedy the violation of subdivision (a)(1) and subsection (b) within forty-five (45) days of the date of the notice and initial order; and
      2. The commissioner determines that the violation of subdivision (a)(1) or subsection (b) was not a knowing violation.
  2. If the commissioner does not issue a warning in lieu of penalties pursuant to subdivision (d)(3), then the notice and initial order shall be deemed a final order not subject to further review. If there is a contested case hearing, the commissioner shall issue a final order. If the employer does not timely remedy the violations within forty-five (45) days of receipt of the notice and initial order, the notice and initial order shall be deemed a final order, not subject to further review. If a contested case hearing is conducted or a final order is otherwise required to be issued, then the commissioner shall issue a final order. The final order shall include, at a minimum, the types of evidence required from the private employer in order to avoid suspension of the private employer's license under subdivision (f)(3).
    1. If the commissioner issues a final order, or a notice and initial order is deemed a final order, not subject to further review, for a violation of subdivision (a)(1) by a private employer, or a violation of § 50-1-704, then the commissioner shall assess the following civil penalties:
      1. Five hundred dollars ($500) for a first violation;
      2. One thousand dollars ($1,000) for a second violation; or
      3. Two thousand five hundred dollars ($2,500) for a third or subsequent violation.
      1. In addition to the civil penalties provided in subdivision (f)(1), the commissioner shall also assess the following civil penalties:
        1. For a first violation, five hundred dollars ($500) for each employee or non-employee not verified pursuant to subdivisions (a)(1)(A) and (B);
        2. For a second violation, one thousand dollars ($1,000) for each employee or non-employee not verified pursuant to subdivisions (a)(1)(A) and (B); or
        3. For a third or subsequent violation, two thousand five hundred dollars ($2,500) for each employee or non-employee not verified pursuant to subdivisions (a)(1)(A) and (B).
      2. In addition to the civil penalties provided in subdivisions (f)(1) and (f)(2)(A), the commissioner shall also assess a monetary penalty in the amount of five hundred dollars ($500) for any employer that knowingly violates subsection (b) and additional penalties in the amount of five hundred dollars ($500) per day for each day that such violation of subsection (b) continues to exist, beginning forty-five (45) days after the notice and initial order is received by the employer.
    2. The private employer shall submit to the commissioner evidence of compliance with subdivision (a)(1) and subsection (b) within forty-five (45) days of the final order. If the private employer fails to submit such documentation, then the commissioner shall request an order consistent with § 4-5-320, requiring the appropriate local government with respect to business licensure pursuant to title 67, chapter 4, to suspend the private employer's license until the employer remedies the violation; provided, however, if the private employer's license has also been suspended pursuant to § 50-1-103(e)(1)(A) or (B), then the license shall remain suspended until the expiration of the period provided for in § 50-1-103(e)(1)(A) or (B).
  3. A second or subsequent violation of subdivision (a)(1) or subsection (b) shall accrue from a separate inquiry conducted under subdivision (a)(7) or (c)(3).
  4. All moneys collected pursuant to this section shall be deposited into the lawful employment enforcement fund created by § 50-1-708.
  5. The penalties described in this section shall not be mutually exclusive, and may be imposed in conjunction with any applicable penalties as provided by law.
  6. If the commissioner issues a final order, or a notice and initial order is deemed a final order, not subject to further review, for a violation of subdivision (a)(1) or subsection (b) by a governmental entity, then the commissioner shall post the violation on the department's web site as provided in § 50-1-705. If the employer does not timely remedy the violations within forty-five (45) days of receipt of the notice and initial order, the notice and initial order shall be deemed a final order, not subject to further review. If a contested case hearing is conducted or a final order is otherwise required to be issued, then the commissioner shall issue a final order.

Acts 2011, ch. 436, § 5; 2013, ch. 147, §§ 1-6; 2016, ch. 828, §§ 1-19, 21.

Compiler's Notes. Acts 2016, ch. 828, § 22 provided that the act, which amended this section, shall apply to violations occurring on and after July 1, 2016.

Amendments. The 2016 amendment, in (a)(1)(A) and (a)(1)(B)(i), deleted “on or after the phase-in period applicable to the particular size employer described in subsection (b)” following “labor or services”; in (a)2)(B)(ii)(a), deleted “on or after the applicable phase-in period described in subsection (b)”; in (a)(3), inserted “or subsection (b)” following “subdivision “(a)(1)(B)”; in (a)(6), deleted “, and shall create no more than one (1) full-time administrative position to staff the office” following “operate this office,”; rewrote (a)(7), which read: “Except as otherwise provided in subsection (c), the department shall conduct an inquiry concerning an employer's compliance with subdivision (a)(1) in conjunction with any pending inquiry, investigation, or inspection of the employer by the department's division of labor standards or workers' compensation division, or any successor divisions thereto. When conducting an inquiry, the commissioner shall provide written notification to the employer of the inquiry and a request for documentation establishing compliance with subdivision (a)(1). The employer shall provide such documentation to the commissioner within thirty (30) days from the date the employer received the department's request. If the employer fails to respond with documentation establishing compliance with subdivision (a)(1) within the thirty-day period, then the commissioner shall issue an initial order pursuant to subsection (d).”; rewrote (b), which read:“(b)(1) On or after January 1, 2012, subsection (a) shall apply to: “(A) Governmental entities; and “(B) Private employers with employees of five hundred (500) or more. “(2) On or after July 1, 2012, subsection (a) shall apply to private employers with employees of two hundred (200) to four hundred ninety-nine (499). “(3) On or after January 1, 2013, subsection (a) shall apply to private employers with employees of six (6) to one hundred ninety-nine (199).”; in (c)(1) and (c)(2), added all occurrences of “or subsection (b)” and “and subsection (b)”; rewrote (c)(3), which read: “If the commissioner determines that the complaint contains satisfactory evidence of a violation of subdivision (a)(1), then the commissioner shall conduct an inquiry. When conducting an inquiry, the commissioner shall provide written notification to the employer of the alleged violation of subdivision (a)(1) and a request for documentation establishing compliance with subdivision (a)(1). The employer shall provide such documentation to the commissioner within thirty (30) days from the date the employer received the department's request. Upon request by the employer, the department shall provide the employer with the name of the individual filing a complaint.”; deleted (c)(4), which read: “Upon the expiration of the thirty-day period in subdivision (c)(3), the commissioner shall make a determination of whether a violation of subdivision (a)(1) occurred. If the employer fails to provide documentation establishing compliance with subdivision (a)(1) within the thirty-day period, then the commissioner shall issue an initial order pursuant to subdivision (d)(1). If documentation is submitted within the thirty-day period, then the commissioner shall determine whether there is clear and convincing evidence of a violation of subdivision (a)(1) based on the documentation submitted, the evidence from the complaint, and other applicable evidence.”; in (d)(1), in the first sentence, inserted “or subsection (b),” following “violated subdivision (a)(1),” substituted “(c)(3)” for “(c)(4)” and “issue a notice and initial order” for “issue an initial order”; in (d)(1)(B), substituted “pursuant to subsections (f)-(j)” for “if a final issue is ordered”; in (d)(2), substituted “a notice and initial order” for “an initial order” and “the notice and initial order” for “the initial order”; in (d)(3)(A), substituted  “forty-five (45) days” for “sixty (60) days” and “notice and initial order” for “initial order”; in (e), following “then, the” in the first sentence, substituted “notice and initial order shall be deemed a final order not subject to further review. If there is a contested case hearing, the commissioner shall issue a final order. If the employer does not timely remedy the violations within forty-five (45) days of receipt of the notice and initial order, the notice and initial order shall be deemed a final order, not subject to further review.” for “commissioner shall issue a final order on the date the contested case hearing concludes or is waived and assess penalties in accordance with subsections (f)-(j).”; at the beginning of (f)(1), substituted the present language for “If the commissioner issues a final order for a violation of subdivision (a)(1) by a private employer, or a violation of § 50-1-704, then the commissioner shall assess”; rewrote (f)(2), which read: “In addition to the civil penalties provided in subdivision (f)(1), the commissioner shall also assess the following civil penalties:“(A) For a first violation, five hundred dollars ($500) for each employee or non-employee not verified pursuant to subdivisions (a)(1)(A) and (B);“(B) For a second violation, one thousand dollars ($1,000) for each employee or non-employee not verified pursuant to subdivisions (a)(1)(A) and (B); or“(C) For a third or subsequent violation, two thousand five hundred dollars ($2,500) for each employee or non-employee not verified pursuant to subdivisions (a)(1)(A) and (B).” ; in (f)(3), in the first sentence, substituted “subdivision (a)(1) or subsection (b) within forty-five (45) days” for “subdivision (a)(1) within sixty (60) days”; in (g), substituted “subdivision (a)(1) or subsection (b)” for “subdivision (a)(1)”; and rewrote (j), which read: “If the commissioner issues a final order for a violation of subdivision (a)(1) by a governmental entity, then the commissioner shall post the violation on the department's web site as provided in § 50-1-705.”

Effective Dates. Acts 2016, ch. 828, § 22. July 1, 2016.

50-1-704. Employer's knowing misclassification to avoid requirements.

  1. If the department determines that an employer knowingly misclassified an individual in order to avoid the requirements of this part or chapters 1, 2, 6 or 7 of this title, then the department shall:
    1. Share the findings and information from its investigations with divisions within the department and with the department of commerce and insurance; and
    2. Pursue appropriate sanctions against the employer as provided by law including, but not limited to, sanctions provided in this part and chapters 1, 2, 6 and 7 of this title.
  2. The department and its divisions are hereby authorized to execute any necessary memorandums of understanding to allow the sharing of such findings and information as required by this section.

Acts 2011, ch. 436, § 5.

50-1-705. Posting of list of employers against whom final orders issued.

  1. Beginning February 1, 2012, and on a monthly basis thereafter, the department shall post a publicly accessible list on the department's web site of any employer against whom a final order has been issued pursuant to this part.
  2. The list required to be posted pursuant to this section shall state, at a minimum, the employer's name, the place of business of a private employer where the violation occurred, a brief description of the violation, a designation of the violation as a first or subsequent violation, and any penalties that have been assessed against the employer.
  3. The list shall remain on the web site for such time as determined by the commissioner.
  4. The department shall electronically transmit a report to each member of the general assembly of the total number of final orders issued pursuant to this part, and the total number of violations of § 12-3-309, by December 1, 2016, and each December 1 thereafter.

Acts 2011, ch. 436, § 5; 2016, ch. 676, § 1.

Amendments. The 2016 amendment added (d).

Effective Dates. Acts 2016, ch. 676, § 2. July 1, 2016.

50-1-706. Protection against retaliation.

Any individual alleging a violation of this part shall have all protections under §§ 8-50-116 and 50-1-304, and any other applicable protections as provided by law.

Acts 2011, ch. 436, § 5.

50-1-707. Compliance deadline.

On or after January 1, 2012, in addition to any other requirement to receive an economic development incentive, a private employer shall be in compliance with this part.

Acts 2011, ch. 436, § 5.

50-1-708. Lawful employment enforcement fund.

  1. There is created in the state treasury a fund to be known as the lawful employment enforcement fund. Moneys collected by the department pursuant to this part shall be deposited in this fund and shall only be used by the department to implement and administer the purposes set forth in this part, including, but not limited to, enforcement and education. Moneys in the fund shall not revert to the general fund of the state, but shall remain available to be used as provided for in this section.
  2. Interest accruing on investments and deposits of the lawful employment enforcement fund shall be credited to such account, shall not revert to the general fund, and shall be carried forward into each subsequent fiscal year.
  3. Moneys in the lawful employment enforcement fund account shall be invested by the state treasurer in accordance with § 9-4-603.

Acts 2011, ch. 436, § 5.

50-1-709. Termination of employment of illegal aliens.

If an employer fails to terminate the employment of any individual for whom the employer receives a final non-confirmation result from the E-Verify program, then the department may consider such fact when making a determination pursuant to § 50-1-103.

Acts 2011, ch. 436, § 5.

50-1-710. Enforcement without prejudice.

This part shall be enforced without regard to race, color, or national origin.

Acts 2011, ch. 436, § 5.

50-1-711. Compliance with federal immigration law.

Nothing in this part shall be construed to abrogate any obligations by an employer to comply with federal immigration law, including, but not limited to, the proper completing and maintaining of federal employment eligibility verification forms or documents.

Acts 2011, ch. 436, § 5.

50-1-712. Interpretation as fully consistent with federal immigration and labor laws.

This part shall be interpreted so as to be fully consistent with all federal laws, including, but not limited to, federal laws regulating immigration and labor.

Acts 2011, ch. 436, § 5.

50-1-713. Exemption when E-Verify program suspended or not operational.

An employer shall not be in violation of this part during any time period in which the E-Verify program is suspended or not operational.

Acts 2011, ch. 436, § 5.

50-1-714. Rules and regulations.

The commissioners of labor and workforce development and safety are authorized to promulgate rules and regulations to effectuate the purposes of this part. All rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2011, ch. 436, § 6.

50-1-715. Expiration of federal electronic work authorization verification system.

If the federal electronic work authorization verification service provided by the United States department of homeland security pursuant to the federal Basic Pilot Program Extension and Expansion Act of 2003, P.L. 108-156, or any successor program, expires and a successor program is not implemented prior to such expiration date, then this part shall cease to be effective as of such expiration date.

Acts 2011, ch. 436, § 7.

Compiler's Notes. The Basic Pilot Program Extension and Expansion Act of 2003, P.L. 108-156, referred to in this section, amended 8 U.S.C. §§ 1153 note, 1324a note, 1360 note, and appears in part as 8 U.S.C. § 1153 note.

Part 8
Retaliatory Discharge

50-1-801. Burden of proof in case of retaliatory discharge.

In any civil cause of action alleging wrongful discharge in violation of Tennessee public policy, including, but not limited to a discharge in retaliation for the exercise of rights under the Tennessee workers' compensation law, the plaintiff shall have the burden of establishing a prima facie case of retaliatory discharge. If the plaintiff satisfies this burden, the burden shall then be on the defendant to produce evidence that one (1) or more legitimate, nondiscriminatory reasons existed for the plaintiff's discharge. The burden on the defendant is one of production and not persuasion. If the defendant produces such evidence, the presumption of discrimination raised by the plaintiff's prima facie case is rebutted, and the burden shifts to the plaintiff to demonstrate that the reason given by the defendant was not the true reason for the plaintiff's discharge and that the stated reason was a pretext for unlawful retaliation. The foregoing allocations of burdens of proof shall apply at all stages of the proceedings, including motions for summary judgment. The plaintiff at all times retains the burden of persuading the trier of fact that the plaintiff has been the victim of unlawful retaliation or wrongful discharge.

Acts 2011, ch. 461, § 3.

Code Commission Notes.

Acts 2011, ch. 461, § 3 purported to enact a new part 7, § 50-1-701. Part 7 was previously enacted by Acts 2011, ch. 436, § 5; therefore, the enactment by Acts 2011, ch. 461, § 3 was designated as part 8, § 50-1-801 by the code commission.

Compiler's Notes. Acts 2011, ch. 461, § 4 provided that the act, which enacted this section, shall apply to all causes of action accruing on or after June 10, 2011.

NOTES TO DECISIONS

1. Construction.

Statute does not in itself provide a cause of action; rather, that statute supplies a burden of proof relevant to wrongful discharge claims. Clark v. Metro. Gov't of Nashville, — S.W.3d —, 2017 Tenn. App. LEXIS 226 (Tenn. Ct. App. Apr. 3, 2017).

2. Burdens of Proof.

Circuit court properly granted summary judgment to an employer on its former internal police officers'  claims for employment discrimination and retaliation because they failed to establish a prima facie case of racial or age discrimination where they were all terminated together despite color or age, the basis for retaliation cited by five the officers occurred after they were terminated, and the other two officers'  claims were barred inasmuch as they accepted severance agreements and signed release Lawrence v. Chattanooga-Hamilton Cty. Hosp. Auth., — S.W.3d —, 2017 Tenn. App. LEXIS 674 (Tenn. Ct. App. Oct. 6, 2017).

Part 9
Exclusive Bargaining Representative

50-1-901. Designating an exclusive bargaining representative.

  1. All employees and employers in this state, when seeking to designate an exclusive bargaining representative through an election permitted by state or federal law, have the right to make such designation by secret ballot, when secret ballot is permitted by such law; under such circumstances, no alternative means of designation shall be used in this state as convincing evidence of employee majority support.
  2. Any agreement, understanding, or practice, written or oral, implied or expressed, between any labor organization and an employer that violates the rights of employees as guaranteed by this section shall be null and void.
  3. This section shall not apply to employee representation agreements:
    1. Entered into prior to July 1, 2011; or
    2. Involving both employees within and without this state when the employer conducted business within this state prior to July 1, 2011.

Acts 2011, ch. 502, § 1.

Code Commission Notes.

Acts 2011, ch. 502, § 1 purported to enact a new part 7, § 50-1-701. Part 7 was previously enacted by Acts 2011, ch. 436, § 5; therefore, the enactment by Acts 2011, ch. 502, § 1 was designated as part 9, § 50-1-901 by the code commission.

Law Reviews.

Does “Why” or “What” Matter: Should Section 302 Apply to Card Check Neutrality Agreements, 45 U. Mem. L. Rev. 249 (2014).

Attorney General Opinions. Acts 2011, ch. 502 does not conflict with federal law and is not preempted by federal law; it does not violate the United States Constitution.  OAG 11-54, 2011 Tenn. AG LEXIS 56 (7/6/11).

Part 10
Employee Online Privacy Act of 2014

50-1-1001. Short title.

This part shall be known and may be cited as the “Employee Online Privacy Act of 2014.”

Acts 2014, ch. 826, § 2.

Compiler's Notes.  Acts 2014, ch. 826, § 6 provided that the act, which enacted this part, shall not apply to a contract entered into prior to January 1, 2015, that permits an employer action prohibited by this act unless or until the contract is renewed on or after January 1, 2015.

Effective Dates. Acts 2014, ch. 826, § 6. January 1, 2015.

50-1-1002. Part definitions.

As used in this part:

  1. “Adverse action” means to discharge, threaten, or otherwise discriminate against an employee in any manner that affects the employee's employment, including compensation, terms, conditions, location, rights, immunities, promotions, or privileges;
  2. “Applicant” means an individual who has applied for employment with an employer;
  3. “Employer” means a person or entity that employs one (1) or more employees and includes the state and its political subdivisions and an agent, representative, or designee of the employer;
  4. “Law enforcement agency” has the same meaning as defined in § 39-17-314; and
  5. “Personal Internet account”:
    1. Means an online account that is used by an employee or applicant exclusively for personal communications unrelated to any business purpose of the employer; and includes any electronic medium or service where users may create, share or view content, including, emails, messages, instant messages, text messages, blogs, podcasts, photographs, videos or user-created profiles; and
    2. Does not include an account created, maintained, used, or accessed by an employee or applicant for business-related communications or for a business purpose of the employer.

Acts 2014, ch. 826, § 3.

Compiler's Notes.  Acts 2014, ch. 826, § 6 provided that the act, which enacted this part, shall not apply to a contract entered into prior to January 1, 2015, that permits an employer action prohibited by this act unless or until the contract is renewed on or after January 1, 2015.

Effective Dates. Acts 2014, ch. 826, § 6. January 1, 2015.

50-1-1003. Prohibited actions by employers — Permissible actions.

  1. An employer shall not:
    1. Request or require an employee or an applicant to disclose a password that allows access to the employee's or applicant's personal Internet account;
    2. Compel an employee or an applicant to add the employer or an employment agency to the employee's or applicant's list of contacts associated with a personal Internet account;
    3. Compel an employee or an applicant to access a personal Internet account in the presence of the employer in a manner that enables the employer to observe the contents of the employee's or applicant's personal Internet account; or
    4. Take adverse action, fail to hire, or otherwise penalize an employee or applicant because of a failure to disclose information or take an action specified in subdivisions (a)(1)-(3).
  2. Unless otherwise provided by law, an employer is not prohibited from:
    1. Requesting or requiring an employee to disclose a username or password required only to gain access to:
      1. An electronic communications device supplied by or paid for wholly or in part by the employer; or
      2. An account or service provided by the employer that is obtained by virtue of the employee's employment relationship with the employer, or used for the employer's business purposes;
    2. Disciplining or discharging an employee for transferring the employer's proprietary or confidential information or financial data to an employee's personal Internet account without the employer's authorization;
    3. Conducting an investigation or requiring an employee to cooperate in an investigation if:
      1. There is specific information on the employee's personal Internet account regarding compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct; or
      2. The employer has specific information about an unauthorized transfer of the employer's proprietary information, confidential information, or financial data to an employee's personal Internet account;
    4. Restricting or prohibiting an employee's access to certain web sites while using an electronic communications device supplied by or paid for wholly or in part by the employer or while using an employer's network or resources, in accordance with state and federal law;
    5. Monitoring, reviewing, accessing, or blocking electronic data stored on an electronic communications device supplied by or paid for wholly or in part by the employer, or stored on an employer's network, in accordance with state and federal law;
    6. Complying with a duty to screen employees or applicants before hiring or to monitor or retain employee communications:
      1. That is established under federal law or by a “self-regulatory organization”, as defined in the Securities and Exchange Act of 1934, 15 U.S.C. § 78c(a);
      2. For purposes of law enforcement employment; or
      3. For purposes of an investigation into law enforcement officer conduct performed by a law enforcement agency; or
    7. Viewing, accessing, or using information about an employee or applicant that can be obtained without violating subsection (a) or information that is available in the public domain.
  3. Conducting an investigation or requiring an employee to cooperate in an investigation as specified in subdivision (b)(3) includes requiring the employee to share the reported content or information in order to make a factual determination.
    1. This part does not create a duty for an employer to search or monitor the activity of a personal Internet account.
    2. An employer is not liable under this part for a failure to request or require that an employee or applicant grant access to, allow observation of, or disclose information that allows access to or observation of the employee's or applicant's personal Internet account.

Acts 2014, ch. 826, § 2.

Compiler's Notes.  Acts 2014, ch. 826, § 6 provided that the act, which enacted this part, shall not apply to a contract entered into prior to January 1, 2015, that permits an employer action prohibited by this act unless or until the contract is renewed on or after January 1, 2015.

Effective Dates. Acts 2014, ch. 826, § 4. January 1, 2015.

50-1-1004. Severability.

If any provision of this part or the application of any provision of this part to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the part that can be given effect without the invalid provision or application, and to that end, the provisions of this part are declared to be severable.

Acts 2014, ch. 826, § 5.

Compiler's Notes.  Acts 2014, ch. 826, § 6 provided that the act, which enacted this part, shall not apply to a contract entered into prior to January 1, 2015, that permits an employer action prohibited by this act unless or until the contract is renewed on or after January 1, 2015.

Effective Dates. Acts 2014, ch. 826, § 6. January 1, 2015.

Chapter 2
Wage Regulations

Part 1
General Provisions

50-2-101. Prospective employee to be informed as to wages — Exceptions — Enforcement.

  1. As used in this section, “workshops and factories” includes manufacturing, mills, mechanical, electrical, mercantile, art, and laundering establishments, printing, telegraph, and telephone offices, department stores, or any kind of establishment where labor is employed or machinery is used; provided, that domestic service and agricultural pursuits are excluded.
  2. It is unlawful for any proprietor, foreman, owner or other person to employ, permit or suffer to work for hire, in, about, or in connection with any workshop or factory any person whatsoever without first informing the employee of the amount of wages to be paid for the labor. This shall not apply to farm labor. Nothing in this section shall apply to railroad companies engaged in interstate commerce and subject to the federal Railway Labor Act, compiled in 45 U.S.C. § 151 et seq.
    1. The failure on the part of any proprietor, foreman, owner or other person in charge of any industry named in subsection (a) to inform any employee of the wages to be paid as provided in this section is a Class C misdemeanor.
    2. Nothing in this section shall be so construed to preclude the employment of any person or persons on a piece-work basis or on a commission basis.
  3. The department of labor and workforce development shall enforce this section.

Acts 1915, ch. 144, § 1; Shan., § 4433a95; Code 1932, § 5324; Acts 1935, ch. 73, §§ 1, 2; C. Supp. 1950, §§ 5330.1, 5330.2; T.C.A. (orig. ed.), §§ 50-301, 50-302; Acts 1989, ch. 591, § 113; 2013, ch. 240, §§ 1, 2.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

NOTES TO DECISIONS

1. Applicability.

Amendment to provide for agency enforcement of the wage laws was a clarification that the legislature did not intend to create a private right of action, rather than a substantive change to the statute, and thus could be applied retroactively to preclude pending private claims. Abadeer v. Tyson Foods, Inc., 975 F. Supp. 2d 890, 2013 U.S. Dist. LEXIS 145918 (M.D. Tenn. Oct. 3, 2013).

Dismissal of inmate's claims under the Tennessee Wage Regulation Act, specifically T.C.A. § 50-2-101 et seq., was appropriate because the inmates failed to state a claim arising under the Act for which relief could have been granted. As a matter of law, the inmates were not employees because they could not enter into a contract of hire as employees Harris v. Tenn. Rehabilitative Initiative in Corr., — S.W.3d —, 2014 Tenn. App. LEXIS 273 (Tenn. Ct. App. May 8, 2014).

T.C.A. § 50-2-107 permitted a private cause of action notwithstanding the 2013 amendment to this section providing for enforcement of that section by the Department of Labor and Workforce Development, because the court's holding in Owens that § 50-2-107 provided a private cause of action had not been overruled, the General Assembly did not amend § 50-2-107 when it amended this section in 2013, and when the General Assembly amended § 50-2-107 in 2012 it did not overrule Owens. Hardy v. Tournament Players Club at Southwind, Inc., — S.W.3d —, 2015 Tenn. App. LEXIS 524 (Tenn. Ct. App. July 2, 2015), rev'd, 513 S.W.3d 427, 2016 Tenn. LEXIS 985 (Tenn. May 25, 2016).

50-2-102. Redemption of coupons or scrip.

  1. All persons, firms and corporations using coupons, scrip, punchouts, store orders or other evidence of indebtedness to pay their laborers and employees, for labor or otherwise, shall, if demanded, redeem the coupons, scrip, punchouts, store orders or other evidence of indebtedness in the hands of the laborer, employee or bona fide holder, in good and lawful money of the United States; provided, that the coupons, scrip, punchouts, store orders or other evidence of indebtedness is presented and redemption demanded of the person, firm or corporation issuing the coupons, scrip, punchouts, store orders or other evidence of indebtedness, as mentioned in this subsection (a), at a regular pay day of the person, firm or corporation to laborers or employees; or, if presented and redemption demanded by the laborers, employees or bona fide holders at any time not less than thirty (30) days from the issuance or delivery of the coupon or other evidence of indebtedness to the employees, laborers or bona fide holder. Redemption shall be at the face value of the coupon or other evidence of indebtedness; provided, that the face value shall be in cash the same as its purchasing power in goods, wares and merchandise at the commissary store or other repository of the company, firm, person or corporation.
  2. Any employee, laborer or bona fide holder, upon presentation and demand for redemption of the coupon or other evidence of indebtedness, and upon refusal of the person, firm or corporation to redeem the coupon or other evidence of indebtedness in good and lawful money of the United States, may maintain in the employee's, laborer's or bona fide holder's own name an action before any court of competent jurisdiction against the person, firm or corporation, issuing the coupon or other evidence of indebtedness, pursuant to subsection (a), for the recovery of the value of the coupon or other evidence of indebtedness; and, if the plaintiff recovers judgment in the case, it shall include a penalty of twenty-five percent (25%) of the amount due and a reasonable fee for the plaintiff's attorney for the attorney's services in the suit, all of which, as well as the costs, shall be taxed against the defendant.
  3. Nothing in this section is to be construed as to legalize the issuance or use of scrip.

Acts 1899, ch. 11, §§ 1-3; 1915, ch. 90, § 1; Shan., § 3608a75-3608a77; Code 1932, §§ 6710-6712; T.C.A. (orig. ed.), §§ 50-303 — 50-305.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 6.

50-2-103. Payment of employees in private employments.

    1. All wages or compensation of employees in private employment shall be due and payable not less frequently than once per month.
    2. For each employer that makes wage payments once monthly to employees in private employments, all wages or compensation earned and unpaid prior to the first day of any month shall be due and payable not later than the fifth day of the succeeding month.
    3. For each employer that makes wage payments in two (2) or more periods per month, all wages and compensation of employees in private employments shall be due and payable as follows:
      1. All wages or compensation earned and unpaid prior to the first day of any month shall be due and payable not later than the twentieth day of the month following the one in which the wages were earned; and
      2. All wages or compensation earned and unpaid prior to the sixteenth day of any month shall be due and payable not later than the fifth day of the succeeding month.
    4. For the purposes of this subsection (a), the final wages of an employee who quits or is discharged shall include any vacation pay or other compensatory time that is owed to the employee by virtue of company policy or labor agreement. This subdivision (a)(4) does not mandate employers to provide vacations, either paid or unpaid, nor does it require that employers establish written vacation pay policies.
  1. “Private employment,” as used in subsection (a), means and includes all employments in concerns where five (5) or more employees are employed, except those under the direct management, supervision and control of the United States, this state, any county, incorporated city or town, or other municipal corporation or political subdivision of the state, or any office or department of the state or general government.
  2. Nothing contained in this section shall be construed as prohibiting the payment of wages at more frequent periods than required pursuant to subsection (a).
  3. Every employer shall establish and maintain regular pay days as provided in this section, and shall post and maintain notices, printed or written in plain type or script, in at least two (2) conspicuous places where the notices can be seen by the employees as they go to and from work, setting forth the regular pay day as prescribed in subsection (a).
    1. The payment of wages or compensation of employees in the employments defined in this section shall be made as follows:
      1. In lawful money of the United States;
      2. By a good and valid negotiable check or draft, payable on presentation of the check or draft at some bank or other established place of business without discount, exchange or cost of collection, in lawful money of the United States;
      3. Electronic automated fund transfer in lawful money of the United States; or
      4. Credit to a prepaid debit card issued through a network system from which the employee is able to withdraw or transfer funds, subject to the limitations contained in subdivisions (e)(2) and (3).
    2. An employer who chooses to compensate its employees using prepaid debit cards under subdivision (e)(1)(D) shall also give employees the choice of being paid by electronic transfer under subdivision (e)(1)(C). If after the employer has explained this system to an employee and provided full written disclosure of any applicable fees associated with the prepaid debit card and the employee does not designate an account at a financial institution in advance and as required by the employer for the payroll transfer to occur, then the employer may arrange to pay such employee by prepaid debit card pursuant to subdivision (e)(1)(D).
    3. If an employer pays its employees their wages on a prepaid debit card pursuant to subdivision (e)(1)(D), then such employer shall ensure that each employee shall have the ability to make at least one (1) withdrawal or transfer from the prepaid debit card per pay period without cost to the employee for any amount contained on the card.
  4. In case an employee in the employments defined in this section is absent from the usual place of employment at the time the payment of wages or compensation is due and payable, the employee shall be paid the wages or compensation within a reasonable time after making a demand for the wages or compensation.
  5. Any employee who leaves or is discharged from employment shall be paid in full all wages or salary earned by the employee no later than the next regular pay day following the date of dismissal or voluntary leaving, or twenty-one (21) days following the date of discharge or voluntary leaving, whichever occurs last. No employer shall, by any means, secure an exemption from this subsection (g).
      1. Except as provided in subdivision (h)(2), each employee shall have a thirty-minute unpaid meal break if scheduled to work six (6) hours consecutively, except in workplace environments that by their nature of business provide ample opportunity to take an appropriate meal break. The meal break shall not be scheduled during or before the first hour of scheduled work activity.
      2. For purposes of this subsection (h), “meal break” means a rest break or meal period.
      1. At the discretion of an employer, an employee who is principally employed in the service of food or beverages to customers and who, in the course of such employment, receives tips and reports the tips to the employer may waive the employee's right to a thirty-minute unpaid meal break.
      2. To waive the meal break, an employee shall submit a waiver request to the employer in writing on a form established by the employer as provided in subdivision (h)(C)(i). For the waiver to be effective:
  6. The employee must submit the request knowingly and voluntarily; and
  7. The department of labor and workforce development shall enforce this section. Each employer, during normal business hours, shall make available to inspectors of the department specific wage and payroll records of its employees maintained on the premises that are pertinent to a written complaint. Records that are maintained off the premises or inaccessible shall be made available to the inspectors on a timely basis as agreed upon by the inspector and the employer.

The employer and employee must both consent to the waiver.

An employer who intends to enter into waiver agreements with employees subject to this subdivision (h)(2) shall establish a reasonable policy that permits employees to waive the meal break subject to the demands of the employees' work environment. This policy shall be in writing and posted in at least one (1) conspicuous place in the workplace. The policy shall include, but not be limited to, the following:

A waiver form that contains a statement that the employee acknowledges the employee's right, under state law, to receive an unpaid meal break of not less than thirty (30) minutes during a six-hour work period and that the employee is knowingly and voluntarily waiving this right;

The length of time the waiver will be in effect; and

Procedures for rescission of the waiver agreement by the employee or employer.

An employer or employee may rescind a waiver agreement after providing notice to the other party. Such notice must be provided at least seven (7) calendar days prior to the date that the waiver will no longer be in effect.

No employer shall coerce an employee into waiving a meal break.

A violation of this section is a Class B misdemeanor, punishable by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500). Further, every employer, partnership or corporation willfully violating this section is subject to a civil penalty of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) at the discretion of the commissioner or the commissioner's designated representative. Each and every infraction constitutes a separate and distinct offense. If the commissioner, or the commissioner's designated representative, determines that the violation was unintentional, there shall be a warning, in lieu of a penalty, on the first offense. On second or subsequent violations, the civil penalty is applicable and may be assessed at the discretion of the commissioner or the commissioner's designated representative. It shall be at the sole discretion of the commissioner to elect to proceed either civilly or criminally upon any violation of this part; however, the employer shall not be charged both civilly and criminally for the same violation.

Acts 1917, ch. 28, §§ 1-6; Shan., §§ 3608a77b1-3608a77b8; Code 1932, §§ 6713-6720; modified; Acts 1935, ch. 57, § 1; 1937, ch. 153, § 1; C. Supp. 1950, §§ 6714, 6719; T.C.A. (orig. ed.), §§ 50-306 — 50-313; Acts 1989, ch. 591, § 113; 1991, ch. 384, § 1; 1993, ch. 219, §§ 1, 3, 4; 1999, ch. 32, § 1; 1999, ch. 118, §§ 1, 2; 1999, ch. 520, § 41; 2001, ch. 128, § 1; 2003, ch. 142, § 1; 2010, ch. 874, § 1; 2012, ch. 760, § 1; 2017, ch. 362, §§ 1, 2.

Amendments. The 2017 amendment rewrote (a), which read:“All wages or compensation of employees in private employments shall be due and payable as follows:“(1)  All wages or compensation earned and unpaid prior to the first day of any month shall be due and payable not later than the twentieth day of the month following the one in which the wages were earned;“(2)  All wages or compensation earned and unpaid prior to the sixteenth day of any month shall be due and payable not later than the fifth day of the succeeding month; and“(3)  For the purposes of this subsection (a), the final wages of an employee who quits or is discharged shall include any vacation pay or other compensatory time that is owed to the employee by virtue of company policy or labor agreement. This subdivision (a)(3) does not mandate employers to provide vacations, either paid or unpaid, nor does it require that employers establish written vacation pay policies.”; and substituted “required pursuant to subsection (a)” for “semimonthly” at the end of (c).

Effective Dates. Acts 2017, ch. 362, § 3. May 11, 2017.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

Law Reviews.

The Constitutionality of Bimonthly Pay Day Laws (Cyril J. Smith), 16 Tenn. L. Rev. 940 (1940).

Attorney General Opinions. Applicability, OAG 94-060 (4/19/94).

Break or meal periods, OAG 94-060 (4/19/94).

Whether an employee in private employment is entitled to pay for accrued sick leave upon the employee's termination will depend on the private employer's company policy or labor agreement, OAG 05-059 (4/20/05).

T.C.A. § 50-2-103(a)(3) does not require that an employee's final wages include unused “vacation pay or other compensatory time” upon the employee's termination of employment, OAG 06-169 (11/13/06).

Provision of two 20-minute unpaid breaks that employees may use however they wish and during which they are not required to perform any duties for the employer's benefit is not in compliance with T.C.A. § 50-2-103(h), OAG 08-187 (12/16/08).

Enforcements of requirements of T.C.A. § 50-2-103(a); exemptions from provisions of statute.  OAG 12-50, 2012 Tenn. AG LEXIS 51 (5/8/12).

NOTES TO DECISIONS

1. Rest Break or Meal Period.

Retaliatory discharge was an available claim where an employee was allegedly discharged for taking a rest break as a consequence of the employer's violation of a clearly expressed statutory policy that required employees be given a 30-minute rest period if the scheduled shift was six hours or longer. Yates v. Hertz Corp., 285 F. Supp. 2d 1104, 2003 U.S. Dist. LEXIS 17832 (M.D. Tenn. 2003).

T.C.A. § 50-2-103(h) requires a thirty-minute meal break; however, T.C.A. § 50-2-103 makes no provision for private enforcement, but instead provides for enforcement by the department of labor and workforce development under T.C.A. § 50-2-103(j). Johnson v. Koch Foods, Inc., 670 F. Supp. 2d 657, 2009 U.S. Dist. LEXIS 106058 (E.D. Tenn. Nov. 13, 2009).

2. Duress Not Found.

Denial of vacation pay to the employee under T.C.A. § 50-2-103(a)(3) was proper because the conclusion that the 2004 contract was not signed under duress undermined much of the employee's argument that he was entitled to his 2005 vacation pay due to the employer's breach of contract. There was no caselaw supporting the employee's assertion that the trial court was permitted to award him vacation pay based on equitable principles. Cummings Inc. v. Dorgan, 320 S.W.3d 316, 2009 Tenn. App. LEXIS 639 (Tenn. Ct. App. Sept. 23, 2009), rehearing denied, — S.W.3d —, 2009 Tenn. App. LEXIS 854 (Tenn. Ct. App. Dec. 9, 2009), appeal denied, 320 S.W.3d 316, 2010 Tenn. LEXIS 576 (Tenn. 2010).

Collateral References.

Time for payment of wages, constitutionality of statute regulating. 12 A.L.R. 612, 26 A.L.R. 1396.

Validity, construction, and effect of state laws requiring payment of wages on discharge of employee immediately or within specified period. 18 A.L.R.5th 577.

50-2-104. Misrepresenting wages in new employment.

Any employer who misrepresents to any employee the amount of wages that the employee is to receive on entering into a new contract of employment commits a Class C misdemeanor. Further, any employer who misrepresents to any employee the amount of wages that the employee is to receive on entering into a new contract of employment shall be subject to a civil penalty of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) at the discretion of the commissioner or the commissioner's designated representative. If the commissioner or the commissioner's designated representative determines that the violation was unintentional, there shall be a warning, in lieu of a penalty, on the first offense. On second or subsequent violations, the civil penalty is applicable and may be assessed at the discretion of the commissioner, or the commissioner's designated representative. It shall be at the sole discretion of the commissioner to elect to proceed either civilly or criminally upon any violation of this part; however, the employer shall not be charged both civilly and criminally for the same violation.

Acts 1917, ch. 48, § 1; Shan., § 4338a1; mod. Code 1932, § 8561; T.C.A. (orig. ed.), § 50-314; Acts 1989, ch. 591, § 113; 1993, ch. 219, § 2; 2001, ch. 128, § 2; 2003, ch. 142, § 2.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

NOTES TO DECISIONS

1. Applicability.

Dismissal of inmate's claims under the Tennessee Wage Regulation Act, T.C.A. § 50-2-101 et seq., was appropriate because the inmates failed to state a claim arising under the Act for which relief could have been granted. As a matter of law, the inmates were not employees because they could not enter into a contract of hire as employees Harris v. Tenn. Rehabilitative Initiative in Corr., — S.W.3d —, 2014 Tenn. App. LEXIS 273 (Tenn. Ct. App. May 8, 2014).

50-2-105. Restrictions on assignment of income — Court orders.

  1. As used in this section:
    1. “Court” and “clerk” are defined as set out in § 26-2-201; and
    2. “Employer” includes the state and any political subdivision of the state.
    1. No action shall be brought to charge any employer upon any assignment by any clerk, servant or employee of the employer to any person of any wages or salaries unearned at the time of the assignment, unless the assignment at the time of the execution of the assignment has been assented to in writing by the employer, or unless the assignment is to enforce support orders as provided in title 36, chapter 5, part 5.
    2. “Support,” “order of support” or “child support” includes child support, and support for a spouse or ex-spouse if the obligor is legally responsible for the support of a child residing with the spouse or ex-spouse.
  2. Assignment of income by a court for child support or spousal support shall be made according to title 36, chapter 5. If an employer fails to comply with the order, a judgment may be entered against the employer in the same manner as set forth in title 26, chapter 2, part 2.
  3. An order for the assignment of income entered by a court under subsections (b) and (c) for child support entered before October 1, 1985, shall remain in full force and effect, and any new orders for assignment of income or for modification or termination of assignments of income shall be as provided in title 36, chapter 5.

Acts 1903, ch. 21, § 1; 1903, ch. 53, § 1; Shan., § 4341a1; Code 1932, § 8562; Acts 1981, ch. 61, § 1; T.C.A. (orig. ed.), § 50-315; Acts 1985, ch. 477, § 12; 1986, ch. 890, § 7; 1994, ch. 987, § 15; 2002, ch. 651, § 6.

Compiler's Notes. For codification of Acts 1985, ch. 477, see the Session Law Disposition Tables in Volume 13 of the Tennessee Code Annotated.

Acts 1985, ch. 477, § 1 provided that Acts 1985, ch. 477 may be cited as the “Child Support Enforcement Act of 1985.”

Cross-References. Applicability to orders of spousal support and juvenile court proceedings, § 39-15-104.

Tax levy upon salary or wages, §§ 67-1-140567-1-1408.

Termination of Acts 1985, ch. 447, which amended this section, § 36-5-110.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 6.

Law Reviews.

The Employment-At-Will Doctrine — Time to Terminate? But How? (D. Bruce Shine), 18 No. 4 Tenn. B.J. 28 (1982).

NOTES TO DECISIONS

1. Constitutionality.

This section is not invalid as impairing the obligation of contracts, within the prohibition of Tenn. Const., art. I, § 20, for it deals solely with contracts to be made in the future. West v. Jefferson Woolen Mills, 147 Tenn. 100, 245 S.W. 542, 1922 Tenn. LEXIS 24 (1922).

This section is not unconstitutional as violative of the law of the land or due process of law clause of Tenn. Const., art. I, § 8. West v. Jefferson Woolen Mills, 147 Tenn. 100, 245 S.W. 542, 1922 Tenn. LEXIS 24 (1922).

2. Purpose.

The manifest of this section was to protect the laborer and wage earner. Fox v. Miller, 173 Tenn. 453, 121 S.W.2d 527, 1938 Tenn. LEXIS 27 (1938).

3. Employees Covered.

This section was intended to protect those who work for a fixed sum per day, per week, or per month, whether it be denominated “wages” or “salaries,” for such terms are interchangeable. West v. Jefferson Woolen Mills, 147 Tenn. 100, 245 S.W. 542, 1922 Tenn. LEXIS 24 (1922).

This section does not authorize assignments by public officials of their future official salaries. Fox v. Miller, 173 Tenn. 453, 121 S.W.2d 527, 1938 Tenn. LEXIS 27 (1938).

4. Unauthorized Assignment — Garnishment.

Assignment of unearned wages by employee to a third party without consent of the employer was void as to the employer, and being void as to the employer such assignment was void as to a garnisheeing creditor of the employee, as the employer, notwithstanding the assignment, owed the wages after being earned by the employee and such wages were subject to garnishment in his hands. Ellison v. Long, 170 Tenn. 582, 98 S.W.2d 96, 1936 Tenn. LEXIS 35 (1936).

5. Union Dues.

Authorizations by union members permitting company to deduct union dues from wages were not invalid under the provisions of this section. Murtha v. Pet Dairy Products Co., 44 Tenn. App. 460, 314 S.W.2d 185, 1958 Tenn. App. LEXIS 97 (Tenn. Ct. App. 1958).

Collateral References.

Law governing assignment of wages or salary. 1 A.L.R. 3d 927.

50-2-106. Company stores.

  1. It is not lawful for any employer, or agent, clerk or superintendent of the employer, who owns or controls a store for the sale of general merchandise in connection with the employer's manufacturing or other business, to attempt to control the employer's employees or laborers in the purchase of goods and supplies at the store, by withholding the payment of wages longer than the usual time of payment, whereby the employee would be compelled to purchase supplies at the employer's store.
  2. No employee shall be required, as a condition of employment, to trade at a store specified by the employer.
  3. Any person violating this section commits a Class C misdemeanor.

Acts 1887, ch. 155, §§ 1-2; Shan., §§ 6882-6883; mod. Code 1932, §§ 11361-11362; Acts 1935, ch. 58, § 1; C. Supp. 1950, § 1136.1; T.C.A. (orig. ed.), §§ 50-316, 50-317; Acts 1989, ch. 591, § 113.

Cross-References. Payment of wages in private employment, § 50-2-103.

Penalty for Class C misdemeanor, § 40-35-111.

50-2-107. Distribution of service charges or gratuities.

    1. If a business, including a private club, lounge, bar or restaurant, includes on the bill presented to and paid by a customer, member or patron an automatic percentage or specific dollar amount denominated as a service charge, tip, gratuity, or otherwise, which amount is customarily assumed to be intended for the employee or employees who have served the customer, member or patron, that amount shall be paid over to or distributed among the employee or employees who have rendered that service. The payment shall be made at the close of business on the day the amount is received or at the time the employee is regularly paid, or, in the case of a bill for which credit is extended to a customer, member or patron, payment shall be made at the close of business on the day the amount is collected or on the first day the employee is regularly paid occurring after the amount is collected.
    2. The payment shall not be reduced, docked or otherwise diminished to penalize an employee for any actions in connection with the employee's employment, if it is derived from a mandatory service charge or tip collected from customers, members or patrons.
      1. This section does not apply to bills for food or beverage served in a banquet, convention or meeting facility segregated from the public-at-large, except banquet, convention or meeting facilities that are on the premises of a private club.
        1. This section does not apply to bills presented to or charges paid by guests for accommodations and activities at a guest ranch.
        2. For purposes of subdivision (a)(3)(B)(i), “guest ranch” means a facility segregated from the public-at-large:
          1. Offering accommodations for overnight stays and activities typical of western ranching;
          2. That may provide other recreational activities exclusively for guests in conjunction with the ranching activities, including, but not limited to, fishing, hiking, horseback riding, rafting and swimming; and
          3. At which food services are incidental to the operation of the guest ranch, are only for the guests of the guest ranch and the cost of which are included in the fee to stay.

A violation of this section is a Class C misdemeanor. Each failure to pay an employee constitutes a separate offense.

Acts 1983, ch. 152, § 1; 1989, ch. 591, § 113; 2012, ch. 895, § 1.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

Attorney General Opinions. Constitutionality of section, OAG 83-144 (4/5/83).

NOTES TO DECISIONS

1. Private Cause of Action.

This section permitted a private cause of action notwithstanding the 2013 amendment to T.C.A. § 50-2-101 providing for enforcement of that section by the Department of Labor and Workforce Development, because the court's holding in Owens that this section provided a private cause of action had not been overruled, the General Assembly did not amend this section when it amended § 50-2-101 in 2013, and when the General Assembly amended this section in 2012 it did not overrule Owens. Hardy v. Tournament Players Club at Southwind, Inc., — S.W.3d —, 2015 Tenn. App. LEXIS 524 (Tenn. Ct. App. July 2, 2015), rev'd, 513 S.W.3d 427, 2016 Tenn. LEXIS 985 (Tenn. May 25, 2016).

Employee had no private right of action under the Tennessee Tip Statute because, while the employee was an intended beneficiary, (1) the statute did not expressly provide such a right, and (2) no such right was implied, as the doctrine of legislative inaction did not apply to show legislative acquiescence in a judicial decision implying the right, since that decision was inconsistent with subsequent jurisprudence on implication of a private right of action, as the decision reflected a willingness to imply a private remedy so long as doing so was not inconsistent with either the purpose of the statute or any criminal or administrative remedies expressly provided therein, but courts had retreated from that approach in favor of one presuming a legislature would expressly provide for a private remedy if it intended there to be one. Hardy v. Tournament Players Club at Southwind, Inc., 513 S.W.3d 427, 2016 Tenn. LEXIS 985 (Tenn. May 25, 2016).

50-2-108. Collection of claims and judgments for wages.

  1. In addition to the powers and duties of the commissioner of labor and workforce development specified elsewhere in this code, the commissioner is authorized and empowered to enter into reciprocal agreements with the labor department or corresponding agency of any other state or with the person, board, officer or commission authorized to act on behalf of the department or agency, for the collection in the other state of claims and judgments for wages based upon claims assigned to the commissioner.
  2. The commissioner may, to the extent provided for by any reciprocal agreement entered into by law or with any agency of another state as provided in this section, maintain actions in the courts of the other state for the collection of claims and judgments for wages, and may assign the claims and judgments to the labor department or agency of the other state for collection to the extent that the assignment may be permitted or provided for by the law of the state or by reciprocal agreement.
  3. The commissioner may, upon the written consent of the labor department or other corresponding agency of any other state or of any person, board, officer or commission of the state authorized to act on behalf of the labor department or corresponding agency, maintain actions in the courts of this state upon assigned claims and judgments for wages arising in the other state in the same manner and to the same extent that such actions by the commissioner are authorized when arising in this state. However, the actions may be maintained only in cases where the other state by law or reciprocal agreement extends a like comity to cases arising in this state.

Acts 1992, ch. 670, § 1; 1999, ch. 520, § 41.

50-2-109. Assessment of penalties.

  1. If, within thirty (30) days from the receipt of written notification of penalties assessed pursuant to this part, an employer fails to notify the commissioner in writing of its intent to contest the imposition of the penalty, the assessment of a penalty as stated in the notification shall be deemed a final order of the commissioner and not subject to further review.
  2. All penalties owed under this part shall be paid to the commissioner.

Acts 2003, ch. 142, § 3.

50-2-110. Offset of moneys owed by employee to employer.

  1. Except as provided in subsection (b), an employer may offset an employee's wages due and owing for an amount the employee owes the employer if:
    1. An employer enters into an agreement with an employee to advance the employee wages prior to the date the wages are due and owing, agrees to otherwise lend the employee money, or permits the employee to charge personal items on the business or corporate credit card issued to the employee;
    2. The employee signs a written agreement prior to any actions occurring pursuant to subdivision (a)(1) allowing the employer to offset the employee's wages for any amount the employee owes the employer, and the employer has in its possession at the time of the offset a copy of such signed agreement;
    3. The employer notifies the employee in writing fourteen (14) days prior to the payment of wages due and owing that:
      1. There is an amount the employee owes the employer;
      2. The employee's wages may be offset if the amount owed is not paid prior to the payment of wages due and owing; and
      3. The employee may submit an affidavit as described in subsection (b); and
    4. The employee has not paid the amount owed the employer that was described in the notice sent pursuant to subdivision (a)(3).
  2. The employer shall not be entitled to offset an employee's wages due and owing if the employee sends a sworn affidavit to the employer, and a copy of such affidavit to the department of labor and workforce development, no later than seven (7) days after receiving notification pursuant to subdivision (a)(3), contesting the amount owed. If an employee contests an amount owed pursuant to this subsection (b), then the employer may commence an appropriate civil action to recover the amount the employer alleges that the employee owes the employer.
  3. For purposes of this section:
    1. “Amount the employee owes the employer” means any specific dollar amount the employer loaned or advanced the employee, including, but not limited to, any amount the employee charged for personal items to a business or corporate credit card issued to the employee; and
    2. “Wages” means any remuneration owed to an employee for services, including, but not limited to, commissions, bonuses, incentive program rewards and tips.

Acts 2011, ch. 273, § 1.

50-2-111. Application of chapter.

  1. This chapter only applies to an individual if the individual performs services for an employer for wages and the services performed by the individual qualify as an employer-employee relationship with the employer based upon consideration of the following twenty (20) factors as described in the twenty-factor test of Internal Revenue Service Revenue Ruling 87-41, 1987-1 C.B. 296:
    1. Instructions.  A worker who is required to comply with other persons' instructions about when, where, and how the worker is to work is ordinarily an employee. This control factor is present if the person or persons for whom the services are performed have the right to require compliance with instructions;
    2. Training.  Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meetings, or by using other methods indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner;
    3. Integration.   Integration of the worker's services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the workers who perform those services must necessarily be subject to a certain amount of control by the owner of the business;
    4. Services rendered personally.   If the services must be rendered personally, then presumably the persons for whom the services are performed are interested in the methods used to accomplish the work as well as in the results;
    5. Hiring, supervising, and paying assistants.   If the person or persons for whom the services are performed hire, supervise, and pay assistants, then that factor generally shows control over the workers on the job. However, if one (1) worker hires, supervises, and pays the other assistants pursuant to a contract under which the worker agrees to provide materials and labor and under which the worker is responsible only for the attainment of a result, then this factor indicates an independent contractor status;
    6. Continuing relationship.   A continuing relationship between the worker and the person or persons for whom the services are performed indicates that an employer-employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals;
    7. Set hours of work.   The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control;
    8. Full time required.   If the worker must devote substantially full time to the business of the person or persons for whom the services are performed, then the person or persons have control over the amount of time the worker spends working and impliedly restrict the worker from doing other gainful work. An independent contractor is free to work when and for whom the independent contractor chooses;
    9. Doing work on employer's premises.   If the work is performed on the premises of the person or persons for whom the services are performed, then that factor suggests control over the worker, especially if the work could be done elsewhere. Work done off the premises of the person or persons receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the worker is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform those services on the employer's premises. Control over the place of work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass territory within a certain time, or to work at specific places as required;
    10. Order or sequence set.   If a worker must perform services in the order or sequence set by the person or persons for whom the services are performed, then that factor shows that the worker is not free to follow the worker's own pattern of work but instead must follow the established routines and schedules of the person or persons for whom the services are performed. Often, because of the nature of an occupation, the person or persons for whom the services are performed do not set the order of the services or set the order infrequently. It is sufficient to show control, however, if the person or persons retain the right to do so;
    11. Oral or written reports.   A requirement that the worker submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control;
    12. Payment by hour, week, month.   Payment by the hour, week, or month generally points to an employer-employee relationship; provided, that this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job. Payment made by the job or on straight commission generally indicates the worker is an independent contractor;
    13. Payment of business or traveling expenses.   If the person or persons for whom the services are performed ordinarily pay the worker's business or traveling expenses, then the worker is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the worker's business activities;
    14. Furnishing of tools and materials.   The fact that the person or persons for whom the services are performed furnish significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship;
    15. Significant investment.   If the worker invests in facilities that are used by the worker in performing services and are not typically maintained by employees, such as the maintenance of an office rented at fair value from an unrelated party, then that factor tends to indicate that the worker is an independent contractor. However, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for the facilities and the existence of an employer-employee relationship;
    16. Realization of profit or loss.   A worker who can realize a profit or suffer a loss as a result of the worker's services, in addition to the profit or loss ordinarily realized by employees, is generally an independent contractor but the worker who cannot is an employee. For example, if the worker is subject to a real risk of economic loss due to significant investments or a bona fide liability for expenses, such as salary payments to unrelated employees, then that factor indicates that the worker is an independent contractor. The risk that a worker will not receive payment for the worker's services is common to both independent contractors and employees and does not constitute sufficient economic risk to support treatment as an independent contractor;
    17. Working for more than one firm at a time.   If a worker performs more than de minimis services for multiple unrelated persons or firms at the same time, then that factor generally indicates that the worker is an independent contractor. However, a worker who performs services for more than one (1) person may be an employee of each of the persons, especially where such persons are part of the same service arrangement;
    18. Making service available to general public.   The fact that a worker makes the worker's services available to the general public on a regular and consistent basis indicates an independent contractor relationship;
    19. Right to discharge.   The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer's instructions. An independent contractor cannot be fired so long as the independent contractor produces a result that meets the contract specifications; and
    20. Right to terminate.   If the worker has the right to end the worker's relationship with the person for whom the services are performed at any time the worker wishes without incurring liability, then that factor indicates an employer-employee relationship.
  2. Notwithstanding subsection (a), this chapter does not apply to an individual who provides services as a leased-operator or an owner-operator of a motor vehicle or vehicles under contract to a common carrier doing an interstate business while engaged in interstate commerce regardless of whether the common law relationship of master and servant exists.

Acts 2011, ch. 416, § 2; 2019, ch. 337, § 1.

Compiler's Notes. Acts 2011, ch. 416, § 10 provided that §§ 1 and 2 of the act, which enacted § 50-2-111 and amended § 50-7-207(e), shall apply to causes of action arising on or after June 6, 2011.

Acts 2019, ch. 337, § 6 provided that the act, which amended this section, applies only to actions occurring on or after January 1, 2020.

Amendments. The 2019 amendment, effective January 1, 2020,  rewrote the section, which read: “This chapter shall not apply to any individual who provides services as a leased-operator or an owner-operator of a motor vehicle or vehicles under contract to a common carrier doing an interstate business while engaged in interstate commerce regardless of whether the common law relationship of master and servant exists; provided, that this chapter shall apply to those employees of the common carrier who do not provide services as a leased-operator or an owner-operator of a motor vehicle or vehicles under contract to a common carrier doing interstate business while engaged in interstate commerce.”

Effective Dates. Acts 2019, ch. 337, § 6. January 1, 2020.

50-2-112. Restrictions on local government authority regarding requiring private employers to pay wages in excess of federal and state minimum hourly wage laws.

    1. Notwithstanding any charter, ordinance or resolution to the contrary, no local government, as a condition of doing business within the jurisdictional boundaries of the local government or contracting with the local government, has the authority to require a private employer to pay its employees a hourly wage in excess of the minimum hourly wage required to be paid by such employer under applicable federal or state law.
    2. With respect to construction contracts, a local government has no authority to require a prevailing wage be paid in excess of the wages established by the prevailing wage commission for state highway construction projects in accordance with title 12, chapter 4, part 4 or the Tennessee occupational wages prepared annually by the department of labor and workforce development, employment security division, labor market information for state building projects.
  1. As used in this section, “local government” means a county, including any county having a metropolitan form of government, or municipal government, or any agency or unit thereof or any other political subdivision of the state.
  2. If compliance with this section by a local government relative to a specific contract, project, or program would result in the denial of federal funds that would otherwise be available to the local government, then the local government may require a private employer to pay its employees a wage necessary to meet the federal requirements to obtain the federal funds, but only relative to such contract, project, or program.

Acts 2013, ch. 91, § 1.

Compiler's Notes. Acts 2013, ch. 91, § 5 provided that the act, which enacted this section, shall apply to contracts entered into or renewed on or after April 11, 2013.

50-2-113. State preemption of wage theft laws, ordinances or rules.

  1. This section shall be known and may be cited as the “Tennessee Wage Protection Act.”
  2. The general assembly finds as a matter of public policy that it is necessary to declare the theft of wages and the denial of fair compensation for work completed to be against the laws and policies of this state.
  3. Employers and employees alike benefit from consistent and established standards of wage theft regulation. Existing federal and state laws, including, but not limited to, the Fair Labor Standards Act, compiled in 29 U.S.C. § 201 et seq., the Davis-Bacon Act, compiled in 40 U.S.C. § 3141 et seq., the McNamara-O’Hara Service Contract Act, compiled in 41 U.S.C. § 6701 et seq., the Migrant and Seasonal Agricultural Protection Act, compiled in 29 U.S.C. § 1801 et seq., the Contract Work Hours and Safety Standards Act, compiled in 29 CFR 5.1 et seq., the Copeland Anti-Kickback Act, codified primarily in 18 U.S.C. § 874 and 40 U.S.C. § 3145, and this chapter, seek to protect employees from predatory and unfair wage practices while also providing appropriate due process to employers.
  4. A county, municipality, or political subdivision of the state shall not adopt or maintain in effect any law, ordinance, or rule that creates requirements, regulations, or processes for the purpose of addressing wage theft. Any additional wage theft ordinance or regulation that exceeds the designated state and federal laws in subsection (c) shall be explicitly preempted by the state.

Acts 2013, ch. 91, § 4.

Compiler's Notes. Acts 2013, ch. 91, § 5 provided that the act, which enacted this section, shall apply to contracts entered into or renewed on or after April 11, 2013.

Law Reviews.

Facilitating Wage Theft: How Courts Use Procedural Rules to Undermine Substantive Rights of Low-Wage Workers (Nantiya Ruan), 63 Vand. L. Rev. 727 (2010).

It's No Revolution: Long Standing Legal Principles Mandate the Preemption of State Laws in Conflict with Section 3(o) of the Fair Labor Standards Act (Anna Wermuth and Jeremy Glenn), 40 U. Mem. L. Rev. 839 (2010).

Part 2
Sex Discrimination

50-2-201. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Commissioner” means the commissioner of labor and workforce development;
  2. “Employ” includes to suffer or permit to work;
  3. “Employee” means any individual employed by any employer within the state, including individuals employed by the state but not by its political subdivisions, but does not include any individual who is entitled to the equal pay provisions of the Fair Labor Standards Act of 1938, compiled in 29 U.S.C. § 201 et seq.;
  4. “Employer” includes any person acting in the interest of any employer, directly or indirectly, and includes the state but not its political subdivisions; and
  5. “Wage rate” means all compensation for employment, including payments in kind and amounts paid by employers for employee benefits as defined by the commissioner in regulations issued under this part.

Acts 1974, ch. 757, § 1; T.C.A., § 50-320; Acts 1999, ch. 520, § 41.

Law Reviews.

Government Contractors Beware: Recent Changes to Federal Affirmative Action Requirements (James Francis Barna), 37 No. 9 Tenn. B.J. 14 (2001).

It's No Revolution: Long Standing Legal Principles Mandate the Preemption of State Laws in Conflict with Section 3(o) of the Fair Labor Standards Act (Anna Wermuth and Jeremy Glenn), 40 U. Mem. L. Rev. 839 (2010).

NOTES TO DECISIONS

1. Evidence.

Reasonable fact-finder could find a former employer tended to pay female employees less than men performing the same job, as the average woman made $9 and the average man made $10.10, and of the six lowest-paid employees, three were women; accordingly, plaintiff made out a prima facie case of disparate pay under the Tennessee Equal Pay Act, T.C.A. § 50-2-201 et seq.Tolliver v. Children's Home-Chambliss Shelter, 784 F. Supp. 2d 893, 2011 U.S. Dist. LEXIS 32553 (E.D. Tenn. Mar. 28, 2011).

Collateral References.

Application of state law to sex discrimination in employment. 87 A.L.R.3d 93.

Application of state law to sex discrimination in sports. 66 A.L.R.3d 1262.

Construction and application of state equal rights amendments forbidding determination of rights based on sex. 90 A.L.R.3d 158.

Recovery of damages for emotional distress resulting from discrimination because of sex or marital status. 61 A.L.R.3d 944.

50-2-202. Prohibited acts.

  1. No employer shall discriminate between employees in the same establishment on the basis of sex by paying any employee salary or wage rates less than the rates the employer pays to any employee of the opposite sex for comparable work on jobs the performance of which require comparable skill, effort and responsibility, and that are performed under similar working conditions; however, nothing in this part shall prohibit wage differentials based on a seniority system, a merit system, a system that measures earnings by quality or quantity of production, or any other reasonable differential that is based on a factor other than sex.
  2. An employer who is paying a wage differential in violation of this part shall not, in order to comply with this part, reduce the wage rate of any employee.
  3. No employer may discharge or discriminate against any employee by reason of any action taken by the employee to invoke or assist in any manner the enforcement of this part.

Acts 1974, ch. 757, § 2; T.C.A., § 50-321.

Cross-References. Discharge for refusal to engage in or remain silent about illegal activities, or for legal use of agricultural product, § 50-1-304.

Collateral References.

Availability and scope of punitive damages under state employment discrimination law. 81 A.L.R.5th 367.

50-2-203. Commissioner to administer law.

  1. The commissioner has the power and duty to carry out and administer this part, including the power to issue regulations, not inconsistent with the purpose of this part, that the commissioner considers necessary or appropriate to carry out this part.
  2. The commissioner is authorized to endeavor to eliminate pay practices unlawful under this part by informal methods of conference, conciliation and persuasion, and to supervise the payment of wages owing to any employee under this part.

Acts 1974, ch. 757, § 3; T.C.A., § 50-322.

50-2-204. Employee remedies.

    1. Any employer who violates § 50-2-202 shall be liable to the employee or employees affected in the amount of their unpaid wages, and in instances of an employer knowingly violating § 50-2-202 in employee suits under subsection (b), up to an additional equal amount of unpaid wages as liquidated damages.
    2. For the second established violation of this part in a separate judicial proceeding distinct from the first, any employer who violates § 50-2-202 shall be liable to the employee or employees affected in the amount of their unpaid wages, and instances of an employer knowingly violating § 50-2-202 in employee suits under subsection (b), up to an additional two (2) times the amount of unpaid wages as liquidated damages.
    3. For the third established violation of this part in a separate judicial proceeding distinct from the first and second, any employer who violates § 50-2-202 shall be liable to the employee or employees affected in the amount of their unpaid wages, and instances of an employer knowingly violating § 50-2-202 in employee suits under subsection (b), up to an additional three (3) times the amount of unpaid wages as liquidated damages.
  1. Action to recover wages may be maintained in any court of competent jurisdiction by any one (1) or more employees. The court shall, in cases of violation, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee and cost of the action to be paid by the defendant.
  2. No agreement by any employee to work for less than the wages to which the employee is entitled under this part shall be a bar to an action to recover wages, or to a voluntary wage restitution of the full amount due under this part.
  3. At the written request of any employee claiming to have been paid less than the wage to which the employee is entitled under this part, the commissioner may bring any legal action necessary on behalf of the employee to collect the claim for unpaid wages. The commissioner shall not be required to pay any filing fee, or other cost in connection with the action. The commissioner shall have the power to join various claims against the employer in one (1) cause of action.

Acts 1974, ch. 757, § 4; T.C.A., § 50-323; Acts 2004, ch. 822, § 2.

Compiler's Notes. Acts 2004, ch. 822, § 1 provided that the act may be cited as the “Equal Pay Remedies and Enforcement Act.”

Collateral References.

Availability and scope of punitive damages under state employment discrimination law. 81 A.L.R.5th 367.

50-2-205. Limitation of actions.

Court action under this part may be commenced no later than two (2) years after the cause of action occurs.

Acts 1974, ch. 757, § 5; T.C.A., § 50-324.

50-2-206. Penalty.

Any employer who violates this part, or who discharges or in any other manner discriminates against any employee because the employee has made a complaint to that employee's employer, the commissioner, or any other person, or instituted or caused to be instituted any proceedings under or related to this part, or has testified or is about to testify in any such proceeding, commits a Class A misdemeanor.

Acts 1974, ch. 757, § 6; T.C.A., § 50-325; Acts 1989, ch. 591, § 111.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

50-2-207. [Repealed.]

Acts 2004, ch. 822, § 3; repealed by Acts 2017, ch. 326, § 4, effective July 1, 2017.

Compiler's Notes. Former § 50-2-207 concerned research on wage disparities.

Chapter 3
Occupational Safety and Health Act of 1972

Part 1
General Provisions

50-3-101. Short title.

This chapter shall be known and may be cited as the “Occupational Safety and Health Act of 1972.”

Acts 1972, ch. 561, § 1; T.C.A., § 50-501.

Cross-References. Additional funds for administration of the Tennessee Occupational Safety Health Act, §§ 50-6-401, 56-4-206, 56-4-207.

Law Reviews.

Long Arm: Does OSHA's Reach Extend to Employees Working at Home on Company-Provided Computers? (Linda S. Peterson), 36 No. 11 Tenn. B.J. 14 (2000).

The OSHA Hazard Communication Standard (Gary C. Shockley), 25 No. 5 Tenn. B.J. 22 (1989).

The Rights of Nonsmokers in Tennessee, 54 Tenn. L. Rev. 671 (1987).

Tort—Bellamy v. Federal Express Corp.: The Availability of Contributory Negligence and Assumption of Risk as Defenses to Violations of Worker Safety Statutes, 19 Mem. St. U.L. Rev. 393 (1989).

Workers' Compensation — Valencia v. Freeland & Lemm Construction Company: Proving an Employer's Intent Remains Nearly Impossible in Tennessee, 34 U. Mem. L. Rev. 717 (2004).

NOTES TO DECISIONS

1. Independent Contractors.

Company owed no duty to protect an employee of an independent contractor from obvious and apparent dangers on its property, even though the employee was engaged in inherently dangerous work when the fall from the transmission tower occurred. Ellis v. Chase Communications, 63 F.3d 473, 1995 FED App. 263P, 1995 U.S. App. LEXIS 24105, 153 A.L.R. Fed. 693 (6th Cir. Tenn. 1995).

50-3-102. Purpose.

  1. The general assembly finds that:
    1. The burden on employers and employees of this state resulting from personal injuries and illnesses arising out of work situations is substantial;
    2. The prevention of these injuries and illnesses is an important objective of the government of this state;
    3. The greatest hope of attaining this objective lies in programs of research and education, and in the earnest cooperation of government, employers and employees; and
    4. A program of regulation and enforcement is a necessary supplement to these more basic programs.
  2. The general assembly declares it to be its purpose and policy through the exercise of its powers to assure so far as possible every working man and woman in the state safe and healthful working conditions and to preserve our human resources by:
    1. Encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new, and to perfect existing, programs for providing safe and healthful working conditions;
    2. Providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions;
    3. Authorizing the commissioner of labor and workforce development to develop occupational safety and health standards applicable to business, giving consideration to the needs of employees and employers and to standards promulgated from time to time by the secretary of labor under the Occupational Safety and Health Act of 1970, compiled in 29 U.S.C. § 651 et seq., and by creating an occupational safety and health review commission for carrying out adjudicatory functions under this chapter;
    4. Building upon advances already made by federal laws and regulations and state laws and regulations for providing safe and healthful working conditions;
    5. Providing criteria that will assure, insofar as practicable, that no employee will suffer diminished health, functional capacity or life expectancy as a result of the employee's work experience;
    6. Providing for education and training of personnel for the fair and efficient administration of occupational safety and health standards;
    7. Providing for education and training of employers and employees in occupational safety and health;
    8. Providing an effective enforcement program, which shall include a prohibition against giving advance notice of an inspection and sanctions for any individual violating this prohibition;
    9. Providing for appropriate reporting procedures with respect to occupational safety and health, which procedures will help achieve the objectives of this chapter and accurately describe the nature of the occupational safety and health problem; and
    10. Encouraging joint labor-management efforts to reduce injuries and diseases arising out of employment.

Acts 1972, ch. 561, § 1; 1977, ch. 111, § 1; T.C.A., § 50-502; Acts 1999, ch. 520, § 41.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

NOTES TO DECISIONS

1. Negligence Per Se.

The violation of T.C.A. § 50-3-102 by a contractor is negligence per se, and it was error to allow issues of contributory negligence and assumption of risk by injured construction worker to go to the jury. Wren v. Sullivan Electric, Inc., 797 F.2d 323, 1986 U.S. App. LEXIS 27611 (6th Cir. Tenn. 1986).

2. Tennessee Public Protection Act.

It was error to dismiss an employee's complaint under the Tennessee Public Protection Act (TPPA), alleging the employee was terminated for refusing to remain silent about an employer's failure to enact workplace violence policies, because the employee alleged a violation of the Occupational Safety and Health Act's general duty clause which implicated important public policy concerns in Tennessee, which satisfied the TPPA's “illegal act” requirement. Davis v. Vanderbilt Univ. Med. Ctr., — S.W.3d —, 2020 Tenn. App. LEXIS 349 (Tenn. Ct. App. Aug. 5, 2020).

50-3-103. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Administrator” means the chief administrative officer of the division of occupational safety and health of the department of labor and workforce development. For the purposes of all sections of this chapter other than §§ 50-3-902 and 50-3-903, “administrator” includes any person appointed, designated or deputized to perform any duties under this chapter or to exercise the powers assigned to the administrator of the division of occupational safety and health under this chapter;
  2. “Commission” means the occupational safety and health review commission established pursuant to § 50-3-801;
  3. “Commissioner” or “commissioner of labor and workforce development” means the chief executive officer of the department of labor and workforce development. For the purposes of all sections of this chapter other than §§ 50-3-902 and 50-3-903, it includes any person appointed, designated or deputized to perform the duties or to exercise the powers assigned to the commissioner of labor and workforce development under this chapter, but does not include the person appointed as administrator;
  4. “Committee” means the occupational safety and health advisory committee established pursuant to § 50-3-204;
  5. “Department” means the department of labor and workforce development;
  6. “Division” or “division of occupational safety and health” means the division of occupational safety and health of the department;
  7. “Employee”:
    1. Means an individual who performs services for an employer for wages under a contract of hire if the services performed by the individual qualify as an employer-employee relationship with the employer based upon consideration of the following twenty (20) factors as described in the twenty-factor test of Internal Revenue Service Revenue Ruling 87-41, 1987-1 C.B. 296:
      1. Instructions.   A worker who is required to comply with other persons' instructions about when, where, and how the worker is to work is ordinarily an employee. This control factor is present if the person or persons for whom the services are performed have the right to require compliance with instructions;
      2. Training.   Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meetings, or by using other methods indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner;
      3. Integration.   Integration of the worker's services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the workers who perform those services must necessarily be subject to a certain amount of control by the owner of the business;
      4. Services rendered personally.    If the services must be rendered personally, then presumably the persons for whom the services are performed are interested in the methods used to accomplish the work as well as in the results;
      5. Hiring, supervising, and paying assistants.   If the person or persons for whom the services are performed hire, supervise, and pay assistants, then that factor generally shows control over the workers on the job. However, if one (1) worker hires, supervises, and pays the other assistants pursuant to a contract under which the worker agrees to provide materials and labor and under which the worker is responsible only for the attainment of a result, then this factor indicates an independent contractor status;
      6. Continuing relationship.   A continuing relationship between the worker and the person or persons for whom the services are performed indicates that an employer-employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals;
      7. Set hours of work.   The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control;
      8. Full time required.   If the worker must devote substantially full time to the business of the person or persons for whom the services are performed, then the person or persons have control over the amount of time the worker spends working and impliedly restrict the worker from doing other gainful work. An independent contractor is free to work when and for whom the independent contractor chooses;
      9. Doing work on employer's premises.   If the work is performed on the premises of the person or persons for whom the services are performed, then that factor suggests control over the worker, especially if the work could be done elsewhere. Work done off the premises of the person or persons receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the worker is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform those services on the employer's premises. Control over the place of work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass territory within a certain time, or to work at specific places as required;
      10. Order or sequence set.   If a worker must perform services in the order or sequence set by the person or persons for whom the services are performed, then that factor shows that the worker is not free to follow the worker's own pattern of work but instead must follow the established routines and schedules of the person or persons for whom the services are performed. Often, because of the nature of an occupation, the person or persons for whom the services are performed do not set the order of the services or set the order infrequently. It is sufficient to show control, however, if the person or persons retain the right to do so;
      11. Oral or written reports.   A requirement that the worker submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control;
      12. Payment by hour, week, month.   Payment by the hour, week, or month generally points to an employer-employee relationship; provided, that this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job. Payment made by the job or on straight commission generally indicates the worker is an independent contractor;
      13. Payment of business or traveling expenses.   If the person or persons for whom the services are performed ordinarily pay the worker's business or traveling expenses, then the worker is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the worker's business activities;
      14. Furnishing of tools and materials.   The fact that the person or persons for whom the services are performed furnish significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship;
      15. Significant investment.   If the worker invests in facilities that are used by the worker in performing services and are not typically maintained by employees, such as the maintenance of an office rented at fair value from an unrelated party, then that factor tends to indicate that the worker is an independent contractor. However, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for the facilities and the existence of an employer-employee relationship;
      16. Realization of profit or loss.   A worker who can realize a profit or suffer a loss as a result of the worker's services, in addition to the profit or loss ordinarily realized by employees, is generally an independent contractor but the worker who cannot is an employee. For example, if the worker is subject to a real risk of economic loss due to significant investments or a bona fide liability for expenses, such as salary payments to unrelated employees, then that factor indicates that the worker is an independent contractor. The risk that a worker will not receive payment for the worker's services is common to both independent contractors and employees and does not constitute sufficient economic risk to support treatment as an independent contractor;
      17. Working for more than one firm at a time.   If a worker performs more than de minimis services for multiple unrelated persons or firms at the same time, then that factor generally indicates that the worker is an independent contractor. However, a worker who performs services for more than one (1) person may be an employee of each of the persons, especially where such persons are part of the same service arrangement;
      18. Making service available to general public.   The fact that a worker makes the worker's services available to the general public on a regular and consistent basis indicates an independent contractor relationship;
      19. Right to discharge.   The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer's instructions. An independent contractor cannot be fired so long as the independent contractor produces a result that meets the contract specifications; and
      20. Right to terminate.   If the worker has the right to end the worker's relationship with the person for whom the services are performed at any time the worker wishes without incurring liability, then that factor indicates an employer-employee relationship; and
    2. Includes minors, whether lawfully or unlawfully employed; persons in executive positions; and county, metropolitan, and municipal government employees;
  8. “Employer” means a person engaged in a business who has one (1) or more employees and includes county, metropolitan and municipal governments;
  9. “Federal standard” means a standard adopted by a rule promulgated under § 6 of the federal Occupational Safety and Health Act of 1970, codified as 29 U.S.C. § 655;
  10. “Issue” means a category of like industrial, occupational or hazard groupings that affects the safety and health of employment or place of employment and is suggested by the groupings in the Code of Federal Regulations, title 29, chapter XVII, part 1910;
  11. “Person” means one (1) or more individuals, partnerships, associations, corporations, business trusts, legal representatives or any organized group of persons; and
  12. “Standard” means an occupational safety and health standard promulgated by the commissioner that requires conditions or the adoption or the use of one (1) or more practices, means, methods, operations or processes reasonably necessary or appropriate to provide safe and healthful employment and places of employment.

Acts 1972, ch. 561, § 2; 1974, ch. 585, §§ 1, 2; 1977, ch. 111, § 2; impl. am. Acts 1977, ch. 111, § 44; T.C.A., § 50-503; Acts 1999, ch. 520, § 41; 2019, ch. 337, § 2.

Compiler's Notes. Acts 2019, ch. 337, § 6 provided that the act, which amended this section, applies only to actions occurring on or after January 1, 2020.

Amendments. The 2019 amendment, effective January 1, 2020, rewrote the definition of “employee” which read: “'Employee' means any person performing services for another under a contract of hire, including minors, whether lawfully or unlawfully employed, persons in executive positions, and shall include county, metropolitan and municipal government employees;”.

Effective Dates. Acts 2019, ch. 337, § 6. January 1, 2020.

NOTES TO DECISIONS

1. Employer.

Occupational Safety and Health Act claims against a city and the city manager were properly dismissed because decedents were employees of a general contract and were working on a building that was privately owned; the decedents'  workplace safety was the contractor's responsibility, and the city and manager were not required to prepare the engineering survey, brace the walls and floors, or to ensure that the contractor did. Kemper v. Baker, — S.W.3d —, 2012 Tenn. App. LEXIS 253 (Tenn. Ct. App. Apr. 19, 2012).

50-3-104. Scope of chapter.

This chapter or any standard or regulation promulgated pursuant to this chapter shall apply to all employers and employees except:

  1. The federal government, including its departments, agencies and instrumentalities;
  2. Employees whose safety and health are subject to protection under the Atomic Energy Act of 1954, compiled in 42 U.S.C. §§ 2011-2296;
  3. Employees whose safety and health are subject to protection under the federal Coal Mine Health and Safety Act of 1969, compiled in 30 U.S.C. § 801 et seq., the federal Metal and Nonmetallic Mine Safety Act, codified as 30 U.S.C. § 725 [repealed], or title 59 of this code;
  4. Railroad employees whose safety and health are subject to protection under the federal Safety Appliances Act, compiled in 45 U.S.C. § 1 et seq. [repealed], or the federal Railroad Safety Act of 1970, compiled in 45 U.S.C. §§ 431-441 [repealed];
  5. Domestic workers; and
  6. [Deleted by 2015 amendment, effective July 1, 2015.]
  7. Any employee engaged in agriculture who is employed on a farm, each of the employees of which is related to the employer as spouse, child, parent, grandparent or grandchild.

Acts 1972, ch. 561, § 3; 1974, ch. 585, § 3; T.C.A., § 50-504; 2015, ch. 23, § 1.

Compiler's Notes. The federal Metal and Nonmetallic Mine Safety Act, referred to in this section, was repealed by Pub. L. No. 95-164, effective 120 days after November 9, 1977. See note concerning Pub. L. No. 95-164 at 30 U.S.C. § 801. For present law, see 30 U.S.C. § 801 et seq.

The federal Safety Appliance Act and the Railroad Safety Act of 1970, referred to in this section, were repealed by P.L. 103-272, § 7(b), 108 Stat. 1379, July 5, 1994, and are covered generally in 49 U.S.C. § 20101 et seq.

Amendments. The 2015 amendment deleted former (6) which read: “Employees covered by the Longshoremen's and Harbor Workers' Compensation Act, compiled in 33 U.S.C. §§ 901-950”.

Effective Dates. Acts 2015, ch. 23, § 2. July 1, 2015.

NOTES TO DECISIONS

1. Railroad Employees.

Railroad employees are not covered by the Occupational Safety and Health Act of 1972. Fowinkle v. Southern R. Co., 533 S.W.2d 728, 1976 Tenn. LEXIS 507 (Tenn. 1976).

2. Domestic Workers.

The domestic worker exception applies to household workers and has no relevance to relatives of the employer when they assist in his business. Acuff v. Commissioner of Tennessee Dep't of Labor, 554 S.W.2d 627, 1977 Tenn. LEXIS 645 (Tenn. 1977).

3. Subcontractors.

Safety regulations adopted under authority of T.C.A. §§ 50-3-104, 50-3-201 and 50-3-917 and safety rules incorporated by reference in T.C.A. § 68-16-104 (now T.C.A. § 68-101-104) do not impose a nondelegable duty upon a municipal electric system to furnish a safe work place for employees of a subcontractor. Dempsey v. Correct Mfg. Corp., 755 S.W.2d 798, 1988 Tenn. App. LEXIS 245 (Tenn. Ct. App. 1988).

4. —Individual Employees of Governmental Entity.

Employees of a county hospital authority were immune as individuals from a claim for retaliatory discharge. Coffey v. Chattanooga-Hamilton County Hosp. Auth., 932 F. Supp. 1023, 1996 U.S. Dist. LEXIS 10508 (E.D. Tenn. 1996), aff'd, Coffey v. Chattanooga Hamilton County Hosp. Auth., 1998 U.S. Dist. LEXIS 22509 (E.D. Tenn. Aug. 17, 1998).

Collateral References.

Preemptive effect of federal railroad safety act, exclusive of “essentially local safety or security hazard” savings clause. 44 A.L.R. Fed. 2d 261.

50-3-105. Employers' rights and duties.

Rights and duties of employers include, but are not limited to, the following:

  1. Each employer shall furnish to each of its employees conditions of employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or harm to its employees;
  2. Each employer shall comply with occupational safety and health standards or regulations promulgated pursuant to this chapter;
  3. Each employer shall refrain from any unreasonable restraint on the right of the commissioner to inspect the employer's place of business. Each employer shall assist the commissioner in the performance of the commissioner's inspection duties by supplying or by making available information, personnel or inspection aids reasonably necessary to the effective conduct of the inspection;
  4. Any employer, or association of employers, is entitled to participate in the development of standards by submission of comments on proposed standards, participation in hearings on proposed standards, or by requesting the development of standards on a given issue, under § 50-3-201;
  5. Any employer is entitled, under § 50-3-307, to a review of any citation issued because of the employer's alleged violation of any standard promulgated under this chapter;
  6. Any employer is entitled, under §§ 50-3-402 — 50-3-408, to a review of any penalty in the form of civil damages assessed against the employer because of the employer's alleged violation of this chapter;
  7. Any employer is entitled, under part 6 of this chapter, to seek an order granting a variance from an occupational safety or health standard; and
  8. Any employer is entitled, under § 50-3-914, to protection of the employer's trade secrets and other legally privileged communications.

Acts 1972, ch. 561, § 4; 1974, ch. 585, §§ 4-7; 1977, ch. 111, § 3; impl. am. Acts 1977, ch. 111, § 44; T.C.A., § 50-505; Acts 1999, ch. 520, § 41.

Law Reviews.

“Get Off Your Butts”: The Employer's Right to Regulate Employee Smoking (David B. Ezra), 60 Tenn. L. Rev. 905 (1993).

The New ADA Backlash, 82 Tenn. L. Rev. 1 (2014).

Attorney General Opinions. Americans with Disabilities Act — smoking — employees — state buildings, OAG 93-40 (4/28/93).

NOTES TO DECISIONS

1. Dangerous Working Conditions.

Allegations that defendant knowingly permitted dangerous working conditions to exist and violated safety regulations is not sufficient to subject defendant to common law liability. The Workers' Compensation Law, compiled in title 50, chapter 6, provides the exclusive remedy for the entire injury and all of its damages. Mize v. Conagra, Inc., 734 S.W.2d 334, 1987 Tenn. App. LEXIS 2513 (Tenn. Ct. App. 1987).

Occupational Safety and Health Act claims against a city and the city manager were properly dismissed because decedents were employees of a general contract and were working on a building that was privately owned; the decedents'  workplace safety was the contractor's responsibility, and the city and manager were not required to prepare the engineering survey, brace the walls and floors, or to ensure that the contractor did. Kemper v. Baker, — S.W.3d —, 2012 Tenn. App. LEXIS 253 (Tenn. Ct. App. Apr. 19, 2012).

Collateral References.

Secondary smoke as battery. 46 A.L.R.5th 813.

50-3-106. Employees' rights and duties.

Rights and duties of employees include, but are not limited to, the following:

  1. Each employee shall comply with occupational safety and health standards and all rules, regulations and orders issued pursuant to this chapter that are applicable to the employee's own actions and conduct;
  2. Each employee shall be notified by the employee's employer of any application for a temporary order granting the employer a variance from this chapter or standard or regulation promulgated pursuant to this chapter;
  3. Each employee shall be given the opportunity to participate in any hearing that concerns an application by the employee's employer for a variance from a standard promulgated under this chapter;
  4. Any employee who may be adversely affected by a standard or variance issued pursuant to this chapter may file a petition with the commissioner;
  5. Any employee who has been exposed or is being exposed to toxic materials or harmful physical agents in concentrations or at levels in excess of that provided for by any applicable standard shall be provided by the employee's employer with the opportunities provided in § 50-3-203;
  6. Subject to regulations issued pursuant to this chapter, any employee or authorized representative of employees shall be given the right to request an inspection and to consult with the commissioner at the time of the physical inspection of any workplace, as provided in part 3 of this chapter;
  7. No employee shall be discharged or discriminated against because the employee has filed a complaint, instituted, or caused to be instituted a proceeding or inspection under or related to this chapter, or testified, or is about to testify, in a proceeding or because of the exercise by the employee on behalf of the employee or others of any right afforded by this chapter;
  8. Any employee who believes that the employee has been discriminated against or discharged in violation of subdivision (7) may, within thirty (30) days after the violation occurs, file a complaint with the commissioner alleging the discrimination. The commissioner shall act promptly on the complaint to determine whether to seek imposition of the sanction provided in § 50-3-409;
  9. Any employee or representative of employees who believes that any period of time fixed in the citation given to the employee's employer by the commissioner for correction of a violation is unreasonable has the right to contest the time for correction by filing a notice with the commissioner within twenty (20) days of the date the citation was issued;
  10. Nothing in this chapter or this section shall be deemed to authorize or require medical examination, immunization or treatment for those who object to the medical examination, immunization or treatment on religious grounds, except where the medical examination, immunization or treatment is necessary for the protection of the health or safety of others; and
  11. Any affected employee shall be notified by the employee's employer and shall be given the opportunity to participate in negotiations on alleged violations of occupational safety and health standards.

Acts 1972, ch. 561, § 5; 1974, ch. 585, § 8; 1977, ch. 111, § 4; T.C.A., § 50-506; Acts 1986, ch. 844, § 3; 1999, ch. 520, § 41.

Law Reviews.

Workers' Compensation — Anderson v. Standard Register Co.: Tennessee Supreme Court Specifies Elements Required to Establish a Cause of Action for Retaliatory Discharge in Workers' Compensation Cases, 24 Mem. St. U.L. Rev. 825 (1994).

NOTES TO DECISIONS

1. Construction.

Since the federal and state statutes concerning occupational safety and health are very broad and general, they do not create such a specially protected class of persons as to obviate contributory negligence as a defense. These statutes impose duties and obligations upon employees as well as employers. Bellamy v. Federal Express Corp., 749 S.W.2d 31, 1988 Tenn. LEXIS 42 (Tenn. 1988).

2. Remedies.

Tennessee courts have the equitable remedy of reinstatement available to them when an employee is discharged for seeking workers' compensation benefits. Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 1992 Tenn. App. LEXIS 403 (Tenn. Ct. App. 1992).

50-3-107. Unpaid fines and penalties — Interest — Additional penalties for late payment.

  1. The commissioner shall refer any fine or penalty assessed under this chapter that remains unpaid for more than six (6) months from the date the order against the violator becomes final to the attorney general and reporter for enforcement. The attorney general and reporter is authorized to contract with one (1) or more private entities or individuals for the collection of these fines and penalties.
  2. When any person or entity is assessed a fine or penalty under this chapter, and the fines or penalties are not paid on or before the date they are due, as established in the final order or otherwise, interest shall be added to the amount due, in addition to any further penalty provided by law, at the rate established pursuant to § 67-1-801(a)(1).
  3. In addition to the interest assessed pursuant to subsection (b), there shall be imposed a penalty in the amount of ten percent (10%) of the unpaid fine or penalty amount for each thirty (30) days or fraction of the thirty-day period that the fine or penalty remains unpaid after becoming due, up to a maximum of thirty percent (30%) of the unpaid amount.
  4. Any interest or penalty imposed due to failure to pay a fine or penalty assessed under this chapter shall be considered a part of the delinquent fine or penalty and shall be collectible in the same manner as the fine or penalty.
  5. Any interest or penalty imposed and collected pursuant to this section shall be used to offset the cost of collection of the fines and penalties assessed under this chapter.
  6. The commissioner shall include within the department's annual report to the general assembly and the governor a listing of employers whose penalties remain unpaid more than one (1) year after a final order has been entered. The listing shall include the amount of any unpaid penalty for each employer.

Acts 1996, ch. 944, § 45; 1999, ch. 520, § 41.

Compiler's Notes. Acts 1996, ch. 944, which enacted this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

50-3-108. Full payment required except in case of compromise and settlement.

The commissioner shall require the full amount of any penalty assessed by a final order of the department to be paid, unless the commissioner receives approval to compromise and settle the amount to be paid pursuant to § 20-13-103.

Acts 1996, ch. 944, § 46; 1999, ch. 520, § 41.

Compiler's Notes. Acts 1996, ch. 944, which enacted this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Part 2
Standards

50-3-201. Regulations authorized.

  1. It is the responsibility of the commissioner of labor and workforce development to develop and promulgate regulations that adopt occupational safety and health standards.
  2. The commissioner may adopt as an occupational safety or health standard the federal standard relating to the same issue.
  3. The commissioner may, by regulation, promulgate, modify or revoke any occupational safety and health standard in the manner provided in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  4. The decision of an individual, corporation, business entity or local, state or federal government entity, or agent thereof, not to post property pursuant to § 39-17-1359, thereby allowing persons with handgun permits to carry a handgun on such property, does not constitute an occupational safety and health hazard within the jurisdiction of this chapter.

Acts 1972, ch. 561, § 6; 1977, ch. 111, § 5; T.C.A., § 50-507; Acts 1999, ch. 520, § 41; 2011, ch. 33, § 1.

Attorney General Opinions. Confidential HIV and hepatitis testing waivers, OAG 93-35 (4/7/93).

NOTES TO DECISIONS

1. Federal Preemption.

The authority of the Tennessee department of labor and workforce development to promulgate regulations regarding the use of pesticides in the workplace is not preempted by either the federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136-136y, or the federal Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.Terminix Int'l Co., L.P. v. Tenn. Dep't of Labor, 77 S.W.3d 185, 2001 Tenn. App. LEXIS 855 (Tenn. Ct. App. 2001).

2. Federal Standards.

Where federal standards are incorporated into the Tennessee standards, decisions under the federal regulations are of the very highest persuasive authority in interpreting the Tennessee regulation and should be adhered to closely. Acuff v. Commissioner of Tennessee Dep't of Labor, 554 S.W.2d 627, 1977 Tenn. LEXIS 645 (Tenn. 1977).

3. Subcontractors.

Safety regulations adopted under authority of T.C.A. §§ 50-3-104, 50-3-201 and § 50-3-917 and safety rules incorporated by reference in T.C.A. § 68-16-104 (now T.C.A. § 68-101-104) do not impose a nondelegable duty upon a municipal electric system to furnish a safe work place for employees of a subcontractor. Dempsey v. Correct Mfg. Corp., 755 S.W.2d 798, 1988 Tenn. App. LEXIS 245 (Tenn. Ct. App. 1988).

50-3-202. Criteria for standards.

  1. Regulations issued under § 50-3-201 shall provide, insofar as possible, the highest degree of health and safety protection for the employee; other considerations shall be the latest available scientific data in the field, the feasibility of the standard and experience gained under this and other health and safety laws.
  2. Whenever practical, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired.
  3. In promulgating standards dealing with toxic materials or harmful physical agents, the commissioner shall set a standard that most adequately assures, to the extent possible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if the employee has regular exposure to the hazard dealt with by the standard for the period of the employee's working life.

Acts 1972, ch. 561, § 6; 1977, ch. 111, § 6; T.C.A., § 50-517.

50-3-203. Protective measures.

  1. Where appropriate, any standard promulgated under § 50-3-201 may prescribe the use of labels or other appropriate forms of warning to the extent necessary to ensure that employees are informed of any significant hazards to which they are exposed, relevant symptoms and proper conditions for safe use or exposure.
  2. Where appropriate, the standards may also prescribe suitable protective equipment, but not as a substitute for appropriate control techniques, as well as control or technological procedures to be used in connection with the hazards.
    1. Where appropriate, the administrator shall require the monitoring or measuring of employee exposure at the locations and intervals, and in the manner, necessary for the protection of the employees.
    2. Any employee who has been or is being exposed in a biologically significant manner to harmful agents or materials in excess of the applicable standard shall be promptly notified by the employee's employer, and informed of corrective action being taken.
  3. In addition, where appropriate, the standard shall prescribe the type and frequency of medical examinations or other tests that shall be made available, by the employer or at the employer's cost, to employees exposed to the hazards, in order to most effectively determine whether the health of the employees is adversely affected by the exposure.
    1. Where appropriate, the standards shall reduce the transmission of bloodborne pathogens through needles. The commissioners of labor and workforce development and health shall jointly review sharps injury prevention technology to include needleless systems and needles with engineered sharps injury protection.
    2. The commissioners shall jointly determine those environments where standards require that sharps injury prevention technology be employed. Sharps injury prevention technology shall not be required wherever the employer or other appropriate party demonstrates that the technology is medically contraindicated or is not more effective than alternative measures used by an employer to prevent exposure incidents.
    3. The standard shall require written exposure control plans be adopted by employers. Written exposure control plans shall be revised to reflect improvements in sharps injury prevention technology. Written exposure control plans shall include the type and brand of device used in an incident of exposure.
    4. The departments of labor and workforce development and health shall jointly compile and maintain a list of existing needleless systems and sharps with engineered sharps injury protection, that shall be available to assist employers in complying with the requirements of the bloodborne pathogen standards promulgated pursuant to this section. The list may be developed from existing sources of information, including, but not limited to, the federal food and drug administration, the federal centers for disease control, the national institute for occupational safety and health, and the United States department of veterans affairs.

Acts 1972, ch. 561, § 6; 1977, ch. 111, § 7; T.C.A., § 50-518; Acts 1999, ch. 37, § 1; 1999, ch. 520, § 41.

Collateral References.

Recovery of damages for expense of medical monitoring to detect or prevent future disease or condition. 17 A.L.R.5th 327.

50-3-204. Advisory committee.

  1. The commissioner may appoint an advisory committee to assist the commissioner in the development and review of regulations prescribing standards under § 50-3-201.
    1. The committee shall consist of an uneven number of persons, not to exceed seven (7), appointed by the commissioner, engaged in the development of the regulation.
    2. Membership on the committee shall include representatives qualified by experience and affiliation to present the diverse viewpoint of persons and groups most likely to be affected by the standards, and may include representatives of employers, employees, the insurance industry, the health professions and the safety professions.
    3. In the selection of members, the commissioner shall consider such criteria as special expertise in the health and safety fields, geographical distribution of members within the three (3) grand divisions of the state, the interests of state and local government and the interests of the public.
  2. Members of the advisory committee shall be reimbursed for their expenses and shall be paid on a per diem basis for days actually and necessarily employed in the discharge of official duties of the committee at a rate to be determined by the commissioner and approved by the department of finance and administration.
    1. Administrative and technical assistance reasonably required by the advisory committee shall be provided by the commissioner.
    2. The committee may seek advice and information from interested and knowledgeable parties and governmental agencies to assist it in the determination of its recommended standards.

Acts 1972, ch. 561, § 7; 1977, ch. 111, § 8; impl. am. Acts 1977, ch. 111, § 44; T.C.A., § 50-519.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

Part 3
Inspections

50-3-301. Inspections authorized.

In order to carry out the purposes of this chapter, the commissioner of labor and workforce development, upon presenting appropriate credentials to the owner, operator or agent in charge, is authorized to:

  1. Enter without delay and at any reasonable time any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and
  2. Inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, the places of employment and all pertinent conditions, processes, structures, machines, apparatus, devices, equipment and materials in the places of employment, and question privately any employer, owner, operator, agent or employee.

Acts 1972, ch. 561, § 8; 1977, ch. 111, § 9; T.C.A., § 50-520; Acts 1999, ch. 520, § 41.

Cross-References. Administrative inspections, title 50, ch. 4.

50-3-302. Witnesses.

  1. In making inspections and investigations under this chapter, the commissioner may issue subpoenas to require the attendance and testimony of witnesses and the production of evidence under oath.
  2. Witnesses shall be reimbursed for all travel and other necessary expenses that shall be claimed and paid in accordance with the prevailing travel regulations of the state.
  3. In case of a failure or refusal of any person to obey a subpoena issued under §§ 50-3-301 — 50-3-306, the chancery court of the county in which the inspection or investigation is conducted shall have jurisdiction, upon application of the commissioner, to issue an order requiring the person to appear and testify or produce evidence as the case may require, and any failure to obey the order of the court may be punished by the court as contempt of the order.
  4. The name, job title and other information that may be used to identify a witness who is interviewed during the course of an investigation shall be considered confidential and shall not be a public record pursuant to title 10, chapter 7.

Acts 1972, ch. 561, § 8; 1977, ch. 111, § 10; T.C.A., § 50-521; Acts 2004, ch. 558, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

Contempt, § 29-9-103, Tenn. R. Crim. P. 42.

Attorney General Opinions. Disclosure of witness identifying information in matters before the occupational safety and health review commission, OAG 05-168 (11/1/05).

50-3-303. Representation of employers and employees during inspection.

  1. Subject to regulations issued by the commissioner of labor and workforce development, a representative of the employer and a representative authorized by the employer's employees shall be given an opportunity to accompany the commissioner or the commissioner's authorized representative during the physical inspection of any workplace under § 50-3-301 for the purpose of aiding the inspection.
  2. Where there is no authorized employee representative, the commissioner or the commissioner's authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

Acts 1972, ch. 561, § 8; 1974, ch. 585, § 10; 1977, ch. 111, § 11; T.C.A., § 50-522; Acts 1999, ch. 520, § 41.

50-3-304. Notice by employees of dangerous conditions or violations.

    1. Any employees or representative of employees who believes that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice of the violation or danger to the commissioner.
    2. The notice shall be in writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by employees or representative of employees, and a copy shall be provided the employer or the employer's agent no later than at the time of inspection.
    3. Upon the request of the person giving the notice, the person's name and the names of individual employees referred to in the notice shall not appear in the copy or on any record published, released or made available pursuant to § 50-3-305.
    4. If upon receipt of the notification the commissioner determines there are reasonable grounds to believe that the violation or danger exists, the commissioner shall make a special investigation in accordance with §§ 50-3-301 — 50-3-306 as soon as practicable, to determine if a violation or danger exists.
    5. If the commissioner determines there are not reasonable grounds to believe that a violation or danger exists, the commissioner shall notify the employees or representative of the employees in writing of the determination.
  1. Prior to or during any inspection of a workplace, any employees or representative of employees employed in the workplace may notify the commissioner, in writing, of any violation of this chapter that they have reason to believe exists in the workplace. The commissioner shall, by regulation, establish procedures for informal review of any refusal by a representative of the commissioner to issue a citation with respect to the alleged violation and shall furnish the employees or representative of employees requesting the review a written statement of the reasons for the commissioner's final disposition of the case.

Acts 1972, ch. 561, § 8; 1977, ch. 111, § 12; T.C.A., § 50-523.

50-3-305. Reports of inspections and investigations.

The commissioner of labor and workforce development is authorized to compile, analyze and publish, either in summary or detailed form, all reports or information obtained under §§ 50-3-30150-3-306, subject to the restriction of § 50-3-915.

Acts 1972, ch. 561, § 8; 1974, ch. 585, § 11; 1977, ch. 111, § 13; T.C.A., § 50-524; Acts 1999, ch. 520, § 41.

50-3-306. Advance notice of inspections prohibited — Exceptions.

  1. Inspections conducted under §§ 50-3-301 — 50-3-306 shall be accomplished without advance notice, subject to the exceptions in subsection (b).
  2. The commissioner may authorize the giving to any employer or employee advance notice of an inspection only when the giving of notice is essential to the effectiveness of the inspection, and in keeping with regulations issued by the commissioner.

Acts 1972, ch. 561, § 8; 1977, ch. 111, § 14; T.C.A., § 50-525; Acts 1999, ch. 520, § 41.

50-3-307. Citation of violations.

    1. If, upon an inspection or investigation, the commissioner believes that an employer is not in compliance with any standard or regulation promulgated by the commissioner pursuant to this chapter, the commissioner shall, with reasonable promptness and in no event later than six (6) months following the inspection, issue to the employer by certified mail, by delivery service with delivery receipt, or via hand delivery, a written citation that states the nature and location of the violation, including a reference to the chapter, standard or regulation alleged to have been violated.
    2. In addition, the citation shall fix a reasonable time for abatement of the violation.
    3. If the commissioner has reason to believe that the violation, or the failure to abate the violation, should result in the assessment of a penalty under §§ 50-3-402 — 50-3-408, the citation may so state.
    4. A copy of each citation shall immediately be posted by the employer at or near each location referred to in the citation.
    5. Whenever the abatement or correction requirements of this chapter conflict with any local zoning ordinance, this chapter shall govern.
    6. A citation issued pursuant to this chapter shall become a final order of the department twenty (20) days after its receipt by the employer.
    1. At any time within twenty (20) days after receipt of the citation, an employer or affected employee, or group of employees or their representative, may advise the commissioner of objections to the terms and conditions of the citation.
    2. Upon receipt of the objections, the commissioner shall notify the occupational safety and health review commission of the receipt of the objections, and the commission shall afford an opportunity for a hearing.
    3. The commission shall thereafter issue an order affirming, modifying or vacating the citation.
    4. The order shall become final thirty (30) days after its issuance, unless within that period judicial review of the order has been sought pursuant to § 50-3-806.

Acts 1972, ch. 561, § 9; 1974, ch. 585, §§ 12, 13; 1977, ch. 111, §§ 15, 16; T.C.A., §§ 50-526, 50-527; Acts 1999, ch. 520, § 41; 2001, ch. 62, § 1; 2007, ch. 102, § 1.

Attorney General Opinions. State agency assessment of penalty without jury trial, OAG 99-123 (6/18/99).

Part 4
Civil Remedies

50-3-401. Injunctive relief.

    1. Where the commissioner of labor and workforce development has reason to believe that any condition or practice in any place of employment could reasonably be expected to cause death or serious physical harm immediately or before the imminence of the danger can be eliminated through the enforcement procedures otherwise provided by this chapter, the commissioner may institute proceedings to prevent, correct or remove the conditions or practice in any court having statutory power to enjoin or restrain in the county in which the condition or practice exists.
    2. Injunctive relief granted under this subsection (a) may require the removal of all individuals from the place of employment except those individuals required to prevent, correct or remove the imminent danger.
    3. In the event that cessation of employment operations is necessary, the injunctive relief may require the cessation to be accomplished in a safe and orderly manner.
  1. For the purpose of Rule 65.03 of the Tennessee Rules of Civil Procedure, the commissioner, when seeking relief under subsection (a), shall be considered to represent the interest of any employee affected by the condition or practice referred to by subsection (a).
  2. Institution of a proceeding for injunctive relief under this section shall not in any way bar the institution or continuation of proceedings for the imposition of monetary penalties under §§ 50-3-402 — 50-3-408.
  3. Any employee or group of employees affected by a condition or practice referred to in subsection (a) may be permitted to intervene in an action brought by the commissioner pursuant to this section; provided, that the intervention is subject to the discretion of the court in which the action is brought.

Acts 1972, ch. 561, § 10; 1974, ch. 585, §§ 14, 15; 1977, ch. 111, §§ 17, 18; T.C.A., §§ 50-528 — 50-530; Acts 1999, ch. 520, § 41.

50-3-402. Authority of commissioner.

  1. The commissioner has the authority to assess monetary penalties as provided in this section and §§ 50-3-403 — 50-3-408 for any violation of this chapter or of any standard, rule or order adopted by regulation promulgated by the commissioner pursuant to this chapter.
  2. In making the assessment, the commissioner shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the employer charged, the gravity of the violation, the good faith of the employer and the employer's history of previous violations.

Acts 1972, ch. 561, § 11; 1974, ch. 585, § 16; 1977, ch. 111, § 19; T.C.A., § 50-531; Acts 1999, ch. 520, § 41.

Attorney General Opinions. State agency assessment of penalty without jury trial, OAG 99-123 (6/18/99).

50-3-403. Knowledge of conditions endangering health or safety — Penalty.

If an employer knows or has reason to know that an employment condition or practice in the employer's business seriously endangers the health or safety of the employer's employees, and if the condition or practice is not in compliance with any standard promulgated pursuant to this chapter, a penalty of up to seven thousand dollars ($7,000) shall be assessed for each violation.

Acts 1972, ch. 561, § 11; 1977, ch. 111, § 20; T.C.A., § 50-532; Acts 1991, ch. 170, § 1.

50-3-404. Failure to correct violation of standard or regulation — Penalty.

  1. Any employer who has received a citation for a violation of this chapter or standard or regulation promulgated pursuant to this chapter, and has failed to correct the violation within the period of correction of the citation, shall be assessed a penalty of up to seven thousand dollars ($7,000) for each day the violation exists.
  2. The period of correction may be suspended or lengthened by the commissioner upon a showing by the employer of a good faith effort to comply with the correction requirements, and that failure to comply with the correction requirements is due to factors beyond the employer's reasonable control.

Acts 1972, ch. 561, § 11; 1977, ch. 111, § 21; T.C.A., § 50-533; Acts 1991, ch. 170, § 2.

50-3-405. Violation of standard or regulation — Nonserious violation — Willful or repeat violations — Penalties.

  1. Any employer who has received a citation for a violation of this chapter or standard or regulation promulgated pursuant to this chapter, and the violation is specifically determined not to be of a serious nature, may be assessed a penalty of up to seven thousand dollars ($7,000) for each violation.
  2. Any employer who willfully or repeatedly violates the requirements of this chapter or standard or regulation promulgated pursuant to this chapter may be assessed a penalty of up to seventy thousand dollars ($70,000) for each violation.

Acts 1974, ch. 585, § 34; T.C.A., §§ 50-534, 50-535; Acts 1991, ch. 170, §§ 3, 4.

50-3-406. Violation of posting requirements.

Any employer who violates any of the posting requirements, as prescribed in this chapter, shall be assessed a penalty of up to seven thousand dollars ($7,000) for each violation.

Acts 1974, ch. 585, § 34; T.C.A., § 50-536; Acts 1991, ch. 170, § 5.

50-3-407. Manner of imposing penalties.

  1. Penalties provided for by §§ 50-3-402 — 50-3-408 shall be imposed in the following manner: whenever the commissioner has determined that a penalty should be assessed against an employer, the commissioner shall issue a written notification to the employer by certified mail, stating the amount of the penalty to be assessed, the reason for the assessment, which may be done by reference to citations issued prior to or simultaneously with the notification, and informing the employer of the employer's right to appeal to the occupational safety and health review commission.
  2. If, within twenty (20) days from the receipt of notification, the employer fails to notify the commissioner that the employer intends to contest the imposition of the penalty, the assessment of a penalty as stated in the notification shall be deemed a final order of the commissioner, and shall not be subject to further review.
    1. If an employer notifies the commissioner within twenty (20) days of receipt of notification of a penalty that the employer intends to contest the penalty, the commissioner shall advise the commission of the notification, and the commission shall afford an opportunity for a hearing.
    2. The commission shall thereafter issue an order, based on findings of fact, affirming, modifying or vacating the commissioner's citation or assessment of penalty.
    3. The order shall become final thirty (30) days after its issuance, unless within that period judicial review of the order has been sought pursuant to § 50-3-806.

Acts 1972, ch. 561, § 11; 1974, ch. 585, §§ 17, 34; 1977, ch. 111, § 22; T.C.A., § 50-537; Acts 1999, ch. 520, § 41.

Attorney General Opinions. State agency assessment of penalty without jury trial, OAG 99-123 (6/18/99).

50-3-408. Payment of penalties — Action to recover.

All penalties owed under this chapter shall be paid to the commissioner for deposit into the state treasury in the general fund and shall be earmarked for expenditure solely for use in the division of occupational safety and health equally between enforcement activities and the safety consulting service conducted under this chapter, and may be recovered in a civil action in the name of the state, in the county where the violation is alleged to have occurred or where the employer has its principal office.

Acts 1972, ch. 561, § 11; 1974, ch. 585, § 34; 1977, ch. 111, § 23; T.C.A., § 50-538; Acts 1996, ch. 944, § 44; 1999, ch. 520, § 41.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

50-3-409. Discrimination against employee.

  1. No person shall discharge or in any manner discriminate against any employee because the employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or because of the exercise by the employee on behalf of the employee or others of any rights afforded by this chapter.
    1. Any employee who believes that the employee has been discharged or otherwise discriminated against by any person in violation of this section may, within thirty (30) days after the violation occurs, file a complaint with the commissioner of labor and workforce development alleging the discrimination.
    2. Upon receipt of the complaint, the commissioner shall cause an investigation to be made that the commissioner deems appropriate.
      1. If, upon investigation, the commissioner determines that this section has been violated, the commissioner shall bring an action in any appropriate chancery court against the person.
      2. In any such action, the chancery courts shall have jurisdiction, for cause shown, to restrain violations of subsection (a) and order all appropriate relief, including rehiring or reinstatement of the employee to the employee's former position with back pay.
  2. Within ninety (90) days of the receipt of a complaint filed under this section, the commissioner shall notify the complainant of the commissioner's determination under subsection (b).

Acts 1972, ch. 561, § 12; 1974, ch. 585, §§ 21, 35; T.C.A., § 50-542; Acts 1999, ch. 520, § 41.

Attorney General Opinions. Tennessee Occupational Safety and Health Administration has no statutory authority to investigate or prosecute a complaint of discrimination by an employee of a state government department or agency pursuant to this section, but such agencies may enter into agreements with the Department of Labor and Workforce Development allowing for investigations and sanctions, OAG 03-115 (9/10/03).

NOTES TO DECISIONS

1. Exclusive Remedy.

In an employee's suit against her former employer alleging common law and statutory claims of retaliatory discharge after she complained of an activity by a co-worker that she found personally offensive in that it created a foul smell and dust, the employee's claim of common law retaliatory discharge was not applicable because the Tennessee Occupational Safety and Health Act, T.C.A. § 50-3-409, provided the exclusive remedy. And as the employee but did not cite any specific threat either to her own health or safety or that of the public, and failed to show that the employer's activities implicated fundamental public policy concerns, the trial court properly dismissed the employee's claim under the Tennessee Public Protection Act, T.C.A. § 50-1-304 as well. Boyd v. Edwards & Assocs., 309 S.W.3d 470, 2009 Tenn. App. LEXIS 165 (Tenn. Ct. App. Apr. 30, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 867 (Tenn. Dec. 21, 2009).

Part 5
Criminal Offenses and Penalties

50-3-501. Unauthorized advance notice of inspection.

Any person who, without proper authorization, gives advance notice of any inspection to be conducted under this chapter commits a Class C misdemeanor.

Acts 1972, ch. 561, § 12; 1974, ch. 585, §§ 18, 34; T.C.A. § 50-539; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Law Reviews.

The Tennessee Court Systems — The Jury System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 489 (1978).

Collateral References.

What constitutes “repeated” or “willful” violation for purposes of state occupational safety and health acts. 17 A.L.R.6th 715.

50-3-502. False statements or representations in applications, records, reports or documents.

Any person who knowingly makes any false statement, representation or certification in any application, record, report or other document filed or required to be filed or maintained pursuant to this chapter commits a Class C misdemeanor.

Acts 1972, ch. 561, § 12; 1974, ch. 585, §§ 19, 34; T.C.A., § 50-540; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Collateral References.

What constitutes “repeated” or “willful” violation for purposes of state occupational safety and health acts. 17 A.L.R.6th 715.

50-3-503. Death of employee caused by willful violation of standard.

Any employer who willfully violates any standard adopted by regulation promulgated pursuant to § 50-3-201, which violation causes the death of any employee, commits a Class A misdemeanor.

Acts 1972, ch. 561, § 12; 1974, ch. 585, §§ 20, 35; impl. am. Acts 1977, ch. 111, § 44; T.C.A., § 50-541; Acts 1989, ch. 591, § 111.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Collateral References.

What constitutes “repeated” or “willful” violation for purposes of state occupational safety and health acts. 17 A.L.R.6th 715.

50-3-504. Disclosure of trade secrets or privileged information.

A representative of the commissioner of labor and workforce development who publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to the representative in the course of the representative's employment or official duties or by reason of any examination or investigation made by, or return, report, or record made to or filed with the representative, which information contains or might reveal a trade secret or is otherwise privileged, commits a Class A misdemeanor.

Acts 1974, ch. 585, § 36; 1977, ch. 111, § 24; T.C.A., § 50-543; Acts 1989, ch. 591, § 1; 1999, ch. 520, § 41.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Law Reviews.

Keep your Friends Close:  A Framework for Addressing Rights to Social Media Contacts, 67 Vand. L. Rev. 1459 (2014).

Collateral References.

What constitutes “repeated” or “willful” violation for purposes of state occupational safety and health acts. 17 A.L.R.6th 715.

50-3-505. Enforcement of part and criminal penalties.

The commissioner of labor and workforce development may seek enforcement of this part, and may offer to any district attorney general assistance that may be appropriate and feasible for the purpose of giving effect to this part, including the services of staff attorneys.

Acts 1972, ch. 561, § 12; 1974, ch. 585, §§ 22, 36; 1977, ch. 111, § 25; T.C.A., § 50-544; Acts 1999, ch. 520, § 41.

Collateral References.

What constitutes “repeated” or “willful” violation for purposes of state occupational safety and health acts. 17 A.L.R.6th 715.

50-3-506. Grand jury — Enforcement duties.

The grand jury of each county is given inquisitorial power for the purpose of the enforcement of this part, and shall inquire promptly into any alleged violation brought to the attention of the grand jury by the commissioner of labor and workforce development.

Acts 1972, ch. 561, § 12; 1974, ch. 585, §§ 22, 36; 1977, ch. 111, § 26; T.C.A., § 50-545; Acts 1999, ch. 520, § 41.

Law Reviews.

The Tennessee Court Systems — The Jury System (Frederic S. LeClercq), 8 Mem. St. U.L. Rev. 489 (1978).

Part 6
Variances

50-3-601. Temporary variances authorized.

  1. The commissioner of labor and workforce development may, upon written application by an employer, issue an order granting the employer a temporary variance from standards promulgated under this chapter.
  2. The order shall prescribe the practices, means, methods, operations and processes that the employer must adopt or use while the variance is in effect and state in detail a program for coming into compliance with the standard.

Acts 1972, ch. 561, § 13; 1974, ch. 585, § 36; 1977, ch. 111, § 27; T.C.A., § 50-546; Acts 1999, ch. 520, § 41.

50-3-602. Temporary variances — Notice — Duration — Renewals.

  1. The temporary variance provided for in § 50-3-601 may be granted only after notice to employees and interested parties and opportunity for hearing.
  2. The variance may be for a period of no longer than required to achieve compliance or one (1) year, whichever is shorter.
  3. The variance may be renewed only once; provided, that longer variances may be granted in the case of employers who undertake experimental programs in safety and health that are either in cooperation with state or federal agencies or approved by the commissioner.
  4. Application for renewal of a variance must be filed in accordance with provisions in the initial grant of the variance.

Acts 1972, ch. 561, § 13; 1974, ch. 585, § 36; 1977, ch. 111, § 28; T.C.A., § 50-547.

50-3-603. Temporary variances — Grounds.

An order granting a temporary variance shall be issued only if the employer establishes that:

    1. The employer is unable to comply with the standard by the effective date because of the unavailability of professional or technical personnel or materials and equipment required or necessary construction or alteration of facilities or technology;
    2. All available steps have been taken to safeguard the employer's employees against the hazards covered by the standard; and
    3. The employer has an effective program for coming into compliance with the standard as quickly as practicable; or
  1. The employer is engaged in an experimental program as described in § 50-3-602.

Acts 1972, ch. 561, § 13; 1974, ch. 585, § 36; T.C.A., § 50-548.

50-3-604. Temporary variances — Applications.

An application for a temporary variance shall contain:

  1. A specification of the standard or portion of the standard from which the employer seeks a variance;
  2. A detailed statement of the reasons why the employer is unable to comply with the standard, supported by representations by qualified personnel having firsthand knowledge of the facts represented;
  3. A statement of the steps the employer has taken and will take with specified dates, to protect employees against the hazard covered by the standard;
  4. A statement of when the employer expects to comply and what steps the employer has taken or will take with specified dates to come into compliance with the standard; and
  5. A certification that the employer has informed the employer's employees of the application by giving a copy of it to their authorized representatives, posting a statement summarizing the application, to include the location of a copy available for examination, at the places where employee notices are normally posted and by other appropriate means. The certification shall contain a description of the means actually employed to inform employees and that employees have been informed of their right to petition the commissioner for a hearing.

Acts 1972, ch. 561, § 13; 1974, ch. 585, § 36; T.C.A., § 50-549.

50-3-605. Permanent variances.

    1. Any affected employer may apply to the commissioner for a rule or order for a variance from a standard.
    2. Affected employees shall be given notice of each application and an opportunity to participate in a hearing.
  1. The commissioner shall issue the rule or order if the commissioner determines on the record, after opportunity for an inspection where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations or processes used or proposed to be used by an employer will provide employment and places of employment to the employer's employees that are as safe and healthful as those that would prevail if the employer complied with the standard.
  2. The rule or order issued shall prescribe the conditions the employer must maintain, and the practices, means, methods, operations and processes that the employer must adopt and utilize, to the extent they differ from the standard in question.
  3. The rule or order may be modified or revoked upon application by an employer, employees, or by the commissioner on the commissioner's own motion, in the manner prescribed for its issuance under this section at any time after six (6) months from its issuance.

Acts 1974, ch. 585, § 37; 1977, ch. 111, § 29; T.C.A., § 50-550; Acts 1999, ch. 520, § 41.

50-3-606. Interim variances.

  1. Upon receipt of an application for an order granting a variance, the commissioner may issue an interim order granting the variance for the purpose of permitting time for an orderly consideration of the application.
  2. No interim order may be effective for longer than one hundred eighty (180) days.

Acts 1972, ch. 561, § 13; 1974, ch. 585, § 37; 1977, ch. 111, § 30; T.C.A., § 50-551.

Part 7
Records and Reports

50-3-701. Records and reports generally.

Each employer shall make available to the commissioner of labor and workforce development, in the manner the commissioner requires, copies of the same records and reports regarding the employer's activities relating to this chapter as are required to be made, kept or preserved by 29 U.S.C. § 657(c) and regulations made pursuant to 29 U.S.C. § 657(c).

Acts 1972, ch. 561, § 14; 1974, ch. 585, § 37; T.C.A., § 50-552; Acts 1999, ch. 520, § 41.

50-3-702. Accident reports.

    1. Each employer shall, in addition to making available to the commissioner the records and reports required by § 50-3-701, report each and every accident resulting in a work-related death or personal injury as defined in § 50-6-102.
    2. Reports of accidents that result in death or personal injury of a nature that the injured person does not return to the person's employment within seven (7) days after the occurrence of the accident shall be submitted to the bureau of workers' compensation as soon as possible, but not later than fourteen (14) days after the accident. Reports of all accidents causing seven (7) days of disability or fewer shall be submitted to the bureau of workers' compensation on or before the fifteenth day of the month following the month covered by the report.
    3. The information required in the reports provided for in subdivision (a)(1) shall be prescribed by the commissioner and forms for making the reports shall be available on request.
    4. Special or additional reports shall be furnished, on written request of the commissioner, to provide any other necessary information.
    5. No report required by § 50-3-701 and this section shall be used in any judicial proceeding.
  1. The employer's first report of work injury records that are maintained by the bureau are confidential. After completing a standard authorization form, which shall be provided by the bureau, an employee or an employee's attorney may obtain a copy of any report that concerns the employee's work injury. An employer may inquire in writing of the bureau to determine whether a job applicant has responded truthfully concerning any prior work injury. Nothing contained in this subsection (b) shall be construed or implemented to alter or amend existing law pertaining to Occupational Safety and Health Administration (OSHA) Form 300 reports. This section does not apply to a collective bargaining agent as certified by the national labor relations board (NLRB).

Acts 1972, ch. 561, § 14; 1974, ch. 585, §§ 23, 37; 1978, ch. 503, § 1; impl. am. Acts 1980, ch. 534, § 1; T.C.A., § 50-553; Acts 1990, ch. 839, § 1; 1999, ch. 520, § 41; 2002, ch. 540, § 1; 2015, ch. 341, § 16.

Amendments. The 2015 amendment substituted “bureau of workers' compensation” for “division of workers' compensation” twice in (a)(2).

Effective Dates. Acts 2015, ch. 341, § 19. May 4, 2015.

Cross-References. Confidentiality of public records, § 10-7-504.

Part 8
Occupational Safety and Health Review Commission

50-3-801. Creation — Members.

  1. There is created the occupational safety and health review commission, consisting of three (3) members to be appointed by the governor, each member to serve for a period of three (3) years.
  2. The governor shall designate one (1) member to serve as chair.
  3. The members shall be chosen from persons qualified by education, training or experience to carry out the functions of the commission.
  4. Service on the commission for a term shall not render a person ineligible for reappointment.
  5. Each member shall be reimbursed for travel in accordance with the comprehensive travel regulations as approved by the attorney general and reporter and the commissioner of finance and administration.
  6. A per diem allowance of fifty dollars ($50.00) shall only be paid to members for meetings at which a quorum is present.
  7. In the event a member is unable to complete the member's term, the member's replacement shall serve only the remainder of the term of the member the replacement replaces, unless reappointed.

Acts 1972, ch. 561, § 15; 1974, ch. 585, § 37; 1976, ch. 707, § 1; 1976, ch. 806, § 1(74); T.C.A., § 50-554.

Code Commission Notes.

Former subsection (c), concerning terms to be served by members on initial appointment, was deleted as obsolete by the code commission in 2008.

Compiler's Notes. The occupational safety and health review commission, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

Law Reviews.

The Exclusiveness of an Employee's Workers Compensation Remedy Against His Employer (Joseph H. King, Jr.), 55 Tenn. L. Rev. 405 (1988).

50-3-802. Functions.

  1. The function of the commission shall be to review citations issued under § 50-3-307 and monetary penalties assessed under §§ 50-3-402 — 50-3-408.
  2. The commission may affirm, modify or revoke a citation or a monetary penalty.

Acts 1972, ch. 561, § 15; 1974, ch. 585, §§ 24, 37; T.C.A., § 50-555.

50-3-803. Hearings.

  1. The commission or its appointed hearing examiners may hold hearings at places of convenience to the parties concerned.
  2. The powers of the commission in the conduct of hearings, including the power to administer oaths and subpoena persons, may be exercised on its behalf by a member, members or a hearing examiner appointed by the chair of the commission.
  3. Hearings may be conducted on the basis of oral or written evidence.
  4. The commission may administer oaths and subpoena persons, including parties, as witnesses and may compel them to produce documentary evidence for hearings.
  5. Timely notice of the hearing and its time and place, as well as the future storage place for the hearing record, shall be given to the parties, and copies of the notice of the hearing shall be posted by the employer at places the commission shall require.
  6. The hearings shall be open to the public and the records of hearings shall be maintained and available for examination.
  7. For the orderly transaction of the hearings, the Tennessee Rules of Civil Procedure shall be used unless a different rule is adopted by the commission.
  8. The rules of the commission shall provide affected employees or their representatives an opportunity to participate as parties.

Acts 1972, ch. 561, § 15; 1974, ch. 585, § 37; T.C.A., § 50-556.

Attorney General Opinions. State agency assessment of penalty without jury trial, OAG 99-123 (6/18/99).

50-3-804. Quorum.

For the purpose of carrying out its functions under this chapter, two (2) members of the commission shall constitute a quorum, and official action can be taken only on the affirmative vote of at least two (2) members.

Acts 1972, ch. 561, § 15; 1974, ch. 585, § 37; T.C.A., § 50-557.

50-3-805. Facilities.

It is the duty of the department of labor and workforce development to provide equipment, supplies, clerical assistance, and the like, that the commission reasonably requires.

Acts 1972, ch. 561, § 15; 1974, ch. 585, § 37; T.C.A., § 50-558; Acts 1999, ch. 520, § 41.

50-3-806. Appeals.

  1. An appeal may be taken from any final order or other final determination of the commission by any person, including the commissioner, who is or may be adversely affected by the final order or other final determination.
  2. The appeal shall be processed in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1972, ch. 561, § 16; 1974, ch. 585, §§ 24, 25, 37; 1977, ch. 111, §§ 31, 32; T.C.A., §§ 50-559, 50-560.

Compiler's Notes. This section may be affected by T.R.A.P. 3(e).

Attorney General Opinions. State agency assessment of penalty without jury trial, OAG 99-123 (6/18/99).

Part 9
Miscellaneous Administrative and Enforcement Provisions

50-3-901. Delegation of powers and duties by the commissioner.

  1. The commissioner shall designate those persons in the commissioner's department responsible for carrying out the commissioner's powers, duties and responsibilities under this chapter.
  2. The persons designated shall be qualified by education, training and experience to ensure the effectiveness of this chapter.

Acts 1972, ch. 561, § 17; 1974, ch. 585, § 37; 1977, ch. 111, § 33; T.C.A., § 50-561.

50-3-902. Delegation of power of inspection.

The commissioner of labor and workforce development may delegate the power to conduct inspections under §§ 50-3-30150-3-306 to any other department of state government or to any local or regional health agency; provided, that the procedures employed by the department or agency are as effective as those employed by the commissioner.

Acts 1972, ch. 561, § 17; 1974, ch. 585, § 37; 1977, ch. 111, § 34; T.C.A., § 50-562; Acts 1999, ch. 520, § 41.

50-3-903. Limitation on delegation of powers.

  1. The commissioner of labor and workforce development shall not designate any person of a rank below division administrator to:
    1. Determine to institute an action under § 50-3-401;
    2. Seek judicial review under § 50-3-806;
    3. Recommend to a district attorney general the institution of a criminal proceeding under § 50-3-409 or part 5 of this chapter; or
    4. Permit the giving of advance notice of an inspection under §§ 50-3-301 — 50-3-306.
  2. The commissioner shall not designate any person of a rank below division director to assess penalties under §§ 50-3-402 — 50-3-408.

Acts 1972, ch. 561, § 17; 1974, ch. 585, §§ 26, 37; 1977, ch. 111, § 35; T.C.A., § 50-563; Acts 1999, ch. 520, § 41; 2000, ch. 637, § 1.

50-3-904. Educational programs authorized.

The commissioner of labor and workforce development may engage in educational programs to provide an adequate supply of qualified personnel to carry out the purposes of this chapter, and is authorized to conduct, directly or by grants or contracts, training of personnel engaged in work related to the commissioner's responsibilities under this chapter. In carrying out the commissioner's responsibilities under this chapter, the commissioner is authorized to:

  1. Use, with the consent of any state agency or agency of county or municipal government, the services, facilities and personnel of the agency, with or without reimbursement in accordance with existing regulations and procedures;
  2. Employ experts and consultants or organizations of experts and consultants; and compensate the individuals employed at rates determined by the commissioner and approved by the department of finance and administration, including travel time, and allow them travel expenses while employed;
  3. Engage in programs of research, demonstrations and experiments, directly, or by grant or contract, relating to occupational safety and health; and
  4. Provide to employers or employees, to the extent feasible, advice and assistance to enable them to improve occupational safety and health in their work places.

Acts 1972, ch. 561, § 17; 1974, ch. 585, § 37; 1977, ch. 111, § 36; T.C.A., § 50-565; Acts 1999, ch. 520, § 41.

50-3-905. Duties of attorney general and reporter and district attorneys general.

It is the duty of the attorney general and reporter and of the district attorneys general in the various districts of the state to assist the commissioner of labor and workforce development, upon the commissioner's request, and to act promptly upon the commissioner's recommendations for the prosecution of persons alleged to be subject to sanctions under § 50-3-409 or part 5 of this chapter.

Acts 1972, ch. 561, § 18; 1974, ch. 585, §§ 27, 37; 1977, ch. 111, § 37; 1979, ch. 422, § 24; T.C.A. § 50-566; Acts 1999, ch. 520, § 41.

Law Reviews.

The Tennessee Court Systems — Prosecution (Frederic S. LeClercq), 8 Mem. St. U.L. Rev. 477 (1978).

50-3-906. State departments and agencies — Responsibilities.

It is the responsibility of each administrative department, commission, board, division or other agency of the state to establish and maintain an effective and comprehensive occupational safety and health program consistent with the standards promulgated under this chapter. The head of each agency shall, in consultation with employees or representatives of employees of the agency:

  1. Provide a safe and healthful place and conditions of employment;
  2. Acquire, maintain and require the use of safety equipment, personal protective equipment and devices reasonably necessary to protect employees;
  3. Make, keep, preserve and make available to the commissioner of labor and workforce development, the commissioner's designated representative or persons within the agency to whom the responsibilities have been delegated, adequate records of all occupational accidents and personal injuries for proper evaluation and necessary corrective action as required under §§ 50-3-701 and 50-3-702;
  4. Consult with the commissioner with regard to the adequacy of the form and content of records kept pursuant to subdivision (3);
  5. By agreement with the commissioner, devise a program of inspection and sanctions required to carry out the purposes of the chapter;
  6. Consult with the commissioner regarding health and safety problems of the agency that are considered to be unusual or peculiar to its activities, or responsibilities that cannot be achieved under a standard required under this chapter;
  7. Make an annual report to the commissioner with respect to accidents and personal injuries and the agency's program under the chapter; and
  8. Provide reasonable opportunity for the participation of employees in the effectuation of the objectives of this section, including the opportunity to make anonymous complaints concerning conditions or practices injurious to employee safety and health.

Acts 1972, ch. 561, § 19; 1974, ch. 585, §§ 28, 37; 1977, ch. 111, § 38; T.C.A., § 50-567; Acts 1999, ch. 520, § 41.

Attorney General Opinions. Tennessee Occupational Safety and Health Administration has no statutory authority to investigate or prosecute a complaint of discrimination by an employee of a state government department or agency pursuant to this section, but such agencies may enter into agreements with the Department of Labor and Workforce Development allowing for investigations and sanctions, OAG 03-115 (9/10/03).

Commissioner of the Department of Labor and Workforce Development may issue written notification of noncompliance with the Tennessee Occupational Safety and Health Act to the head of the state department or agency which is the employer, and ultimately issue this notification to the governor, OAG 03-115 (9/10/03).

50-3-907. Annual report of state department and agency programs.

The commissioner shall submit annually to the governor and the general assembly a summary or digest of reports submitted to the commissioner under § 50-3-906(7), together with the commissioner's evaluations of the progress toward achievement of the purposes of this chapter, the needs and requirements in the field of occupational safety and health, any other relevant information, and the commissioner's recommendations derived from these reports.

Acts 1972, ch. 561, § 19; 1974, ch. 585, §§ 29, 37; T.C.A., § 50-568; Acts 1999, ch. 520, § 41.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

50-3-908. Violations by state departments or agencies — Notice.

  1. Whenever the commissioner has reason to believe that an agency or department is failing reasonably to abide by §§ 50-3-906 — 50-3-913, the commissioner may issue to the head of the agency or department a written notification stating in what respects the agency or department has not adequately met its responsibilities.
  2. If the agency or department does not advise the commissioner within twenty (20) days of its intention to contest the notification, the commissioner shall submit a copy of the notification to the governor, together with a request that action be taken to bring the agency or department into compliance with this chapter.
  3. If, within twenty (20) days of receipt of notification, the agency or department advises the commissioner of its intention to contest the notification, the commissioner shall promptly notify the commission, which shall afford an opportunity for a hearing and shall thereafter issue to the governor its findings of fact and recommendations for action.

Acts 1972, ch. 561, § 19; 1974, ch. 585, §§ 30, 37; 1977, ch. 111, § 39; T.C.A., § 50-569; Acts 1999, ch. 520, § 41; 2004, ch. 558, § 2.

Attorney General Opinions. Tennessee Occupational Safety and Health Administration has no statutory authority to investigate or prosecute a complaint of discrimination by an employee of a state government department or agency pursuant to this section, but such agencies may enter into agreements with the Department of Labor and Workforce Development allowing for investigations and sanctions, OAG 03-115 (9/10/03).

Commissioner of the Department of Labor and Workforce Development may issue written notification of noncompliance with the Tennessee Occupational Safety and Health Act to the head of the state department or agency which is the employer, and ultimately issue this notification to the governor, OAG 03-115 (9/10/03).

50-3-909. Conditions or practices by state departments or agencies endangering health — Abatement.

Whenever the commissioner of labor and workforce development has reason to believe that failure of an agency or department to meet its responsibilities under this chapter creates imminent danger of death or serious physical injury to any employee of this state, the commissioner shall immediately submit to the governor a statement of the reasons for the commissioner's belief, together with recommendations for the immediate abatement of the hazard.

Acts 1972, ch. 561, § 19; 1974, ch. 585, § 37; 1977, ch. 111, § 40; T.C.A., § 50-570; Acts 1999, ch. 520, § 41.

50-3-910. Local governments' duty to employees — Treatment as private employer.

  1. It is the duty of county, municipal and other local governments to provide their employees with conditions of employment consistent with the objectives of this chapter, and to comply with standards developed under § 50-3-201.
  2. On or before July 1, 2006, or in the case of local governments created after July 1, 2004, within two (2) years following the creation of the local government, each local government shall elect whether to:
    1. Be treated as a private employer; or
    2. Develop its own program of compliance.
  3. If a local government elects to develop its own program of compliance, it shall prepare a statement in writing of the program, including a description of methods of inspection, and shall register the program with the commissioner of labor and workforce development, by sending to the commissioner by certified mail a written notification that includes:
    1. A statement that the local government elects to develop its own program of compliance;
    2. A statement that the program has been developed and has been reduced to writing;
    3. A statement of where the writing may be inspected;
    4. A statement that employees of the local government have been informed of the program and have access to the writing;
    5. An assurance that the program incorporates standards developed under § 50-3-201; and
    6. An assurance that the program includes provisions for inspection and record keeping as effective as the provisions of this chapter.
  4. If a local government does not file the notification, it shall be considered to have elected to be treated as a private employer.
  5. On or before July 1, 2016, each utility district created by private act shall elect to either:
    1. Be treated as a private employer; or
    2. Develop its own program of compliance.

Acts 1972, ch. 561, § 19; 1974, ch. 513, § 1; 1974, ch. 585, § 37; impl. am. Acts 1977, ch. 111, § 44; T.C.A., § 50-571; Acts 1999, ch. 520, § 41; 2004, ch. 558, § 3; 2015, ch. 332, § 1.

Amendments. The 2015 amendment added (e).

Effective Dates. Acts 2015, ch. 332, § 2. April 28, 2015.

50-3-911. Inspection and enforcement of local government programs.

No action shall be taken with reference to an employer that is a local government, other than the performance of inspections under §§ 50-3-30150-3-306 performed for the purpose of determining the effectiveness of programs developed and registered by the employers under § 50-3-910, and other than investigation and enforcement actions under § 50-3-409, unless the local government has elected to be treated as a private employer.

Acts 1972, ch. 561, § 19; 1974, ch. 585, §§ 31, 37; T.C.A., § 50-572; Acts 2004, ch. 508, § 1.

50-3-912. Report of failure of government programs.

If the commissioner has reason to believe that any local government program of compliance is ineffective, the commissioner shall, after unsuccessfully seeking by negotiation to abate the failure, include this fact in the commissioner's annual report to the governor and the general assembly, together with the reasons for the belief that the local government program of compliance is ineffective, and may recommend legislation intended to correct the condition.

Acts 1972, ch. 561, § 19; 1974, ch. 585, § 37; T.C.A., § 50-573; Acts 1999, ch. 520, § 41.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

50-3-913. Local governments as private employers — Enforcement not affected by notice to develop own program.

If proceedings under §§ 50-3-307, 50-3-40150-3-404, 50-3-407 and 50-3-408 or 50-3-409, 50-3-50150-3-503, 50-3-505 and 50-3-506 have been commenced with reference to a local government that has elected to be treated as a private employer, the proceedings, including subsequent review, shall not be terminated by the filing of a notification of an election to develop its own program of compliance.

Acts 1972, ch. 561, § 19; 1974, ch. 585, §§ 32, 37; T.C.A., § 50-574.

50-3-914. Trade secrets confidential.

  1. All information obtained by or reported to the commissioner pursuant to any section of this chapter that contains or might reveal a trade secret or is otherwise privileged shall be considered confidential for the purpose of that section. The information may be disclosed to other officers or employees concerned with carrying out this chapter or when relevant in any proceeding under this chapter.
  2. A violation of this section is a Class A misdemeanor.

Acts 1972, ch. 561, § 20; 1974, ch. 585, §§ 33, 37; 1977, ch. 111, § 41; T.C.A., § 50-575; Acts 1989, ch. 591, § 111; 1999, ch. 520, § 41.

Cross-References. Confidentiality of public records, § 10-7-504.

Penalty for Class A misdemeanor, § 40-35-111.

Law Reviews.

Keep your Friends Close:  A Framework for Addressing Rights to Social Media Contacts, 67 Vand. L. Rev. 1459 (2014).

50-3-915. Compliance with chapter — Relation of chapter to other laws.

  1. Compliance with any other state law that regulates safety and health in employment and places of employment shall not excuse any employer or employee or any other person from compliance with this chapter or any standard or regulation promulgated pursuant to this chapter.
  2. Compliance with this chapter or any standard or regulation promulgated pursuant to this chapter shall not excuse any employer or employee or any other person from compliance with any state law regulating and promoting safety and health unless the state law is specifically repealed by this chapter or is repealed by subsequent legislation pursuant to this chapter.

Acts 1972, ch. 561, § 21; 1974, ch. 585, § 37; T.C.A., § 50-576.

50-3-916. Minimizing report burden.

  1. Records and reports required by this chapter shall be obtained with a minimum burden on employers, especially those operating small businesses.
  2. Unnecessary duplication will be avoided by encouraging and approving the use of existing substitute records for those required under §§ 50-3-701 and 50-3-702 to the maximum extent possible.

Acts 1972, ch. 561, § 22; 1974, ch. 585, § 37; T.C.A., § 50-577.

50-3-917. Cooperation with federal government.

The commissioner of labor and workforce development, subject to the direction and designation of the governor under § 4-4-116, is authorized, in accordance with § 18 of the federal Occupational Safety and Health Act of 1970, codified as 29 U.S.C. § 667 to:

  1. Submit a state plan for the state that provides for safe and healthful employment by the adoption of standards and means for enforcement of the standards that are at least as effective as those standards and means for enforcement of the standards as are provided by the federal Occupational Safety and Health Act of 1970, compiled in 29 U.S.C. §§ 651-678;
  2. Accept funds made available under that act and similar or related acts;
  3. Enter into agreements and make reports necessary to the acceptance of the funds; and
  4. Cooperate with the federal government in ways that are reasonably designed to carry out the purposes of the act.

Acts 1972, ch. 561, § 23; 1974, ch. 585, § 37; 1977, ch. 111, § 42; T.C.A., § 50-578; Acts 1999, ch. 520, § 41.

NOTES TO DECISIONS

1. Subcontractors.

Safety regulations adopted under authority of T.C.A. §§ 50-3-104, 50-3-201 and 50-3-917 and safety rules incorporated by reference in t. § 68-16-104 (now T.C.A. § 68-101-104) do not impose a nondelegable duty upon a municipal electric system to furnish a safe work place for employees of a subcontractor. Dempsey v. Correct Mfg. Corp., 755 S.W.2d 798, 1988 Tenn. App. LEXIS 245 (Tenn. Ct. App. 1988).

50-3-918. Hazardous condition — Action by commissioner — Emergency stop orders.

  1. If the commissioner of labor and workforce development, upon inspection or investigation, finds a hazardous condition at a place of employment that presents an imminent threat to life or limb of an employee, the commissioner may issue an emergency stop order requiring the immediate alleviation of the condition. This may require the discontinuation of a practice or the removal of all individuals from the threatened area. The stop order shall be in writing and is effective from the time it is posted in the place where the condition exists. Immediately after the order is posted, a copy shall be given to the employer. The commissioner shall fix a place and time, not later than twenty-four (24) hours thereafter, for a hearing to be held before the commissioner. Not more than twenty-four (24) hours after the start of the hearing, and without adjournment of the hearing, the commissioner shall affirm, modify or set aside the commissioner's previous order. The commissioner shall cause a transcript to be made of the proceedings in the hearing, copies of which shall be made available to all parties affected, at a reasonable cost.
  2. The action taken by the commissioner shall be subject to review by the chancery or circuit court of the county in which the condition is found to exist, upon petition for certiorari in the manner now provided for review of actions of boards and commissions in title 27, chapter 9. The review shall take precedence over all other matters on the docket except application for extraordinary process. Upon petition for certiorari, the stop order may be vacated by the reviewing court upon the giving of a bond as the court may find appropriate in the circumstances by the party seeking review.
  3. Should the commissioner fail to abide by the provision for affirming, modifying or setting aside of the commissioner's order, any work or project halted by the stop order may resume, it being the legislative intent that the stop order shall not serve to be a device to be used arbitrarily.

Acts 1973, ch. 29, §§ 1, 2; 1977, ch. 111, § 43; impl. am. Acts 1977, ch. 111, § 44; T.C.A., § 50-579; Acts 1999, ch. 520, § 41.

50-3-919. [Repealed.]

Acts 1988, ch. 722, § 1; 1999, ch. 520, §§ 41, 52, repealed by Acts 2011, ch. 61, § 3, effective April 11, 2011.

Compiler's Notes. Former § 50-3-919 concerned the occupational safety and health administration labor advisory council.

50-3-920. No regulation and enforcement of changes in federal regulations relating to child labor performed on farms.

On or after April 16, 2012, no public funds of this state or any political subdivision of this state shall be allocated to the regulation or enforcement of any change made after December 1, 2011, to the United States department of labor's Hazardous Occupations Orders for Agricultural Employment relating to children, compiled in 29 CFR part 570.

Acts 2012, ch. 757, § 1.

Part 10
High-Voltage Lines

50-3-1001. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Approved” means approved by the commissioner;
  2. “Commissioner” means the commissioner of labor and workforce development or any of the commissioner's authorized representatives;
  3. “Department” means the department of labor and workforce development;
  4. “High-voltage” means a voltage in excess of seven hundred fifty (750) volts between conductors or from any conductor to ground; and
  5. “Overhead lines” means all bare or insulated electrical conductors installed above ground, except those conductors that are enclosed in approved metal covering.

Acts 1955, ch. 289, § 1; T.C.A., §§ 53-2801, 68-21-101; Acts 1999, ch. 520, § 46; 2011, ch. 157, § 1; 2012, ch. 681, §§ 1, 4; T.C.A. § 68-103-101.

Compiler's Notes. Former § 68-103-101 was transferred to § 50-3-1001 by Acts 2012, ch. 681, § 4, effective July 1, 2012.

NOTES TO DECISIONS

1. Nature and Effect of Statute.

This chapter (now part) was not intended to relieve a company transmitting deadly energy through uninsulated wires from the consequences of its negligence but was designed merely as an additional safety measure. Martin v. McMinnville, 51 Tenn. App. 503, 369 S.W.2d 902, 1962 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1962).

Collateral References.

Applicability of rule of strict liability to injury from electrical current escaping from power line. 82 A.L.R.3d 218, 60 A.L.R.4th 732.

Liability of electric company to one other than employee for injury or death arising from commencement or resumption of service. 46 A.L.R.5th 423.

50-3-1002. Guarding against accidental contact by employee.

No person, firm, or corporation, or agent of a person, firm or corporation, shall require or permit any employee to perform any function in proximity to high-voltage overhead lines; to enter upon any land, building, or other premises and engage in any excavation, demolition, construction, repair or other operation; or to erect, install, operate, or store in or upon such premises any tools, machinery, equipment, materials, or structures, including house moving, well drilling, pile driving or hoisting equipment, unless and until danger from accidental contact with such high-voltage overhead  lines has been effectively guarded against in the manner prescribed in this part.

Acts 1955, ch. 289, § 2; T.C.A., §§ 53-2802, 68-21-102; Acts 2011, ch. 157, § 2; 2012, ch. 681, §§ 1, 4; T.C.A. § 68-103-102.

Compiler's Notes. Former § 68-103-102 was transferred to § 50-3-1002 by Acts 2012, ch. 681, § 4, effective July 1, 2012.

Law Reviews.

Workmen's Compensation — Subrogations in Action Against Third-Party Tort-feasor — Contributory Negligence — Intervening Cause, 31 Tenn. L. Rev. 275 (1964).

50-3-1003. Clearance or safeguard required.

  1. The operation, erection or transportation of any tools, machinery, or equipment, or any part of any tools, machinery, or equipment, capable of vertical, lateral or swinging motion, the handling, transportation or storage of any supplies, materials or apparatus, or the moving of any house or other building, or any part of any house or building, under, over, by or near high-voltage overhead lines, is expressly prohibited, if at any time during such operation, transportation or other manipulation it is possible to bring the equipment, tools, materials, building, or any part of the equipment, tools, materials or building, within ten feet (10') of the high-voltage overhead lines, or the distance required by an applicable standard of the Tennessee occupational health administration, except where the high-voltage overhead lines have been effectively guarded against danger from accidental contact, by either:
    1. The erection of mechanical barriers to prevent physical contact with high-voltage conductors;
    2. De-energizing the high-voltage conductors and grounding where necessary; or
    3. By insulating the lines.
  2. Only in the case of an exception referenced in subdivision (a)(1), (a)(2) or (a)(3) may the clearance required by subsection (a) be reduced. The clearance required by subsection (a) shall not be provided by movement of the conductors through strains impressed, by attachments or otherwise, upon the structures supporting the high-voltage overhead line nor upon any equipment, fixtures or attachments on the structures.
  3. If temporary relocation of the high-voltage conductors is necessary, appropriate arrangements shall be made with the owner or operator of the overhead line for such temporary relocation.

Acts 1955, ch. 289, § 3; T.C.A., §§ 53-2803, 68-21-103; Acts 2011, ch. 157, §§ 3, 4; 2012, ch. 681, § 4; T.C.A. § 68-103-103.

Compiler's Notes. Former § 68-103-103 was transferred to § 50-3-1003 and reenacted without change by Acts 2012, ch. 681, § 4, effective July 1, 2012.

50-3-1004. [Repealed.]

Acts 1955, ch. 289, § 4; T.C.A., §§ 53-2804, 68-21-104, repealed by Acts 2011, ch. 157, § 5, effective May 5, 2011; transferred by Acts 2012, ch. 681, § 4 from § 68-103-104, effective July 1, 2012.

Compiler's Notes. Former § 68-103-104 (transferred to § 50-3-1004) concerned a warning sign for high-voltage lines.

50-3-1005. Notification to power company and responsibility for safeguards.

When any operations are to be performed, tools or materials are to be handled, or equipment is to be moved or operated, within ten feet (10'), or the distance required by an applicable standard of the Tennessee occupational health administration, of any high-voltage overhead line, the person or persons responsible for the work to be done shall promptly notify the operator of the high-voltage overhead line of the work to be performed, and such person shall be responsible for the completion of the safety measures that are required by §§ 50-3-1002 and 50-3-1003, before proceeding with any work that would impair the clearance.

Acts 1955, ch. 289, § 5; T.C.A., §§ 53-2805, 68-21-105; Acts 2011, ch. 157, §§ 6, 7; 2012, ch. 681, §§ 2, 4; T.C.A. § 68-103-105.

Compiler's Notes. Former § 68-103-105 was transferred to § 50-3-1005 by Acts 2012, ch. 681, § 4, effective July 1, 2012.

NOTES TO DECISIONS

1. Liability.

Where state statutes were violated by a Tennessee subcontractor in a national park and as a result an independent contractor of the subcontractor was injured, the subcontractor, not the federal government, was liable for the injury. Morgan v. United States, 413 F. Supp. 72, 1976 U.S. Dist. LEXIS 16504 (E.D. Tenn. 1976).

50-3-1006. Enforcement.

The commissioner shall administer and enforce this part and the commissioner is empowered to prescribe and promulgate rules and regulations consistent with this part.

Acts 1955, ch. 289, § 6; T.C.A., §§ 53-2806, 68-21-106; Acts 2012, ch. 681, §§ 1, 4; T.C.A. § 68-103-106.

Compiler's Notes. Former § 68-103-106 was transferred to § 50-3-1006 by Acts 2012, ch. 681, § 4, effective July 1, 2012.

50-3-1007. Violation of part.

A violation of any provision of this part is a violation of § 50-3-105(1).

Acts 1955, ch. 289, § 7; T.C.A., § 53-2807; Acts 1989, ch. 591, § 112; T.C.A., § 68-21-107; Acts 2011, ch. 157, § 8; 2012, ch. 681, §§ 1, 4; T.C.A. § 68-103-107.

Compiler's Notes. Former § 68-103-107 was transferred to § 50-3-1007 by Acts 2012, ch. 681, § 4, effective July 1, 2012.

50-3-1008. Operations exempt.

This part shall not be construed as applying to, shall not apply to, and is not intended to apply to, the construction, reconstruction, operation, and maintenance of overhead electrical conductors and their supporting structures and associated equipment by authorized and qualified electrical workers; nor to the authorized and qualified employees of any person, firm or corporation engaged in the construction, reconstruction, operation, and maintenance of overhead electrical circuits or conductors and their supporting structures and associated equipment of rail transportation systems, or electrical generating, transmission, distribution, and communication systems. This exception, when applied to railway systems, shall be construed as permitting operation of standard rail equipment that is normally used in the transportation of freight or passengers or both and the operation of relief trains, or other equipment in emergencies, or in maintenance of way service, at a distance of less than ten feet (10'), or the distance required by an applicable standard of the Tennessee occupational health administration, from any high-voltage overhead conductor of such railway system; but this part shall be construed as prohibiting normal repair or construction operations at a distance of less than ten feet (10'), or the distance required by an applicable standard of the Tennessee occupational health administration, from any high-voltage overhead conductor by other than properly qualified and authorized persons or employees under the direct supervision of an authorized person who is familiar with the hazards involved, unless there has been compliance with the safety provisions of §§ 50-3-100250-3-1005.

Acts 1955, ch. 289, § 8; T.C.A., §§ 53-2808, 68-21-108; Acts 2011, ch. 157, § 9; 2012, ch. 681, §§ 1, 3, 4; T.C.A. § 68-103-108.

Compiler's Notes. Former § 68-103-108 was transferred to § 50-3-1008 by Acts 2012, ch. 681, § 4, effective July 1, 2012.

50-3-2001. Employer compliance with the federal hazard communication standard for chemicals and other compliance requirements.

Each employer shall comply with all of the requirements of the federal hazard communication standard codified in 29 CFR 1910.1200. In addition to the requirements set forth in 29 CFR 1910.1200 each employer must also comply with the following:

    1. Employers shall keep a record of the dates of training sessions given to their employees;
    2. The hazard communication program and employee information and training required of employers pursuant to 29 CFR 1910.1200 and the education and training program pursuant to subdivision (1) shall require annual refresher training after the initial training pursuant to 29 CFR 1910.1200 is conducted, unless the commissioner grants an exemption from annual refresher training. The exemption may be granted if the commissioner determines that the nature of the work assignment, the level of exposure or the nature of the hazardous chemical involved would not reasonably require annual refresher training;
    1. For the purposes of this section only, “workplace” means any workplace as defined in 29 CFR 1910.1200(c) that is located within the fire chief's actual jurisdiction or that is located in a jurisdiction to which the fire chief responds pursuant to a mutual aid pact;
    2. Employers and distributors who normally store a hazardous chemical in excess of fifty-five gallons (55 gal.) or five hundred pounds (500 lbs.) shall provide the fire chief, in writing, the names and telephone numbers of knowledgeable representatives of the manufacturing employer, non-manufacturing employer or distributor who can be contacted for further information or in the event of an emergency;
    3. Each employer and distributor shall provide a copy of the workplace chemical list to the fire chief and shall thereafter notify the fire chief of any significant changes that occur in the workplace chemical list;
    4. The fire chief or the fire chief's representative, upon request, shall be permitted on-site inspections of the hazardous chemicals on the workplace chemical list during normal business hours for the sole purpose of preplanning emergency fire department activities;
    5. Employers and distributors, upon written request, shall provide the fire chief a copy of the safety data sheet (SDS) for any chemical on their workplace chemical list;
    6. The fire chief shall, upon request, make the workplace chemical list and SDSs available to members of the fire chief's fire company having jurisdiction over the workplace, or their designated representatives, but shall not otherwise distribute the information without written approval of the manufacturing employer, nonmanufacturing employer or distributor who provided the workplace chemical list or SDSs; except that approval shall not be required in an emergency situation in which human life is at stake. In the event the workplace chemical list or SDSs are released under an emergency situation, the fire chief shall promptly notify the supplier of the workplace chemical list or SDSs, in writing, as to whom the information was released and the circumstances of the emergency. Persons receiving workplace chemical lists or SDSs from the fire chief shall hold the information contained in the workplace chemical lists or SDSs in confidence;
      1. Employers and distributors shall place one (1) sign in accordance with the NFPA704M series on the outside of any building that contains a class A explosive, class B explosive, poison gas (poison A), water-reactive flammable solid (flammable solid W), or radioactive material as listed in Table 1 of the federal department of transportation (DOT) regulations at 49 CFR, Part 172, and further defined in federal DOT regulations at 49 CFR, Part 173, or any other hazardous chemical in excess of the amounts listed in subdivision (2)(B);
      2. The commissioner shall promulgate rules in accordance with § 50-3-102(b)(3) to establish specifications on the size, color, lettering and posting requirements pursuant to the series. The regulations shall provide that the number used shall be determined by the hazardous chemical that presents the greatest danger;
      3. The commissioner shall exempt an employer from this subdivision (2)(G) who can satisfactorily demonstrate that:
  1. The employer maintains a trained fire or emergency preparedness team considered capable of handling workplace chemical or fire emergencies without external assistance; or
  2. The employer maintains twenty-four (24) hour security personnel who maintain accurate records of the location of chemicals and who can readily direct emergency personnel from outside sources to affected company facilities;

The department of labor and workforce development shall assist employers and fire personnel to effectuate the purposes of this section;

(A)  (i)  Manufacturing employers shall compile and maintain a list of the hazardous chemicals known to be present using a product identifier that is referenced on the appropriate safety data sheet and the work area or workplace in which the hazardous chemical is normally used or stored;

The manufacturing employer shall maintain the workplace chemical list for no less than thirty (30) years. The manufacturing employer shall send complete records pertinent to the workplace chemical list to the commissioner if the manufacturing employer generating the list ceases to operate a business within the state;

The workplace chemical list shall be filed with the commissioner within ninety-six (96) hours of a request by an authorized representative of the commissioner;

(i)  Nonmanufacturing employers shall compile and maintain a list of the hazardous chemicals known to be present using a product identifier that is referenced on the appropriate safety data sheet and the work area or workplace in which the hazardous chemical is normally used or stored. This subdivision (3)(B)(i) shall apply to employers who store such chemicals in excess of fifty-five gallons (55 gal.) or five hundred pounds (500 lbs.);

The nonmanufacturing employer shall maintain the workplace chemical list for no less than thirty (30) years. The nonmanufacturing employer shall send complete records pertinent to the workplace chemical list to the commissioner if the nonmanufacturing employer generating the list ceases to operate a business within the state;

The nonmanufacturing employer shall notify new or newly assigned employees about the workplace chemical list and its contents before working in a work area containing hazardous chemicals; and

The nonmanufacturing employer shall file the workplace chemical list with the commissioner within ninety-six (96) hours of a request by an authorized representative of the commissioner.

The workplace chemical list may consist of either a single listing prepared for the workplace as a whole or a collection of lists prepared for each work area individually;

The department of labor and workforce development shall provide the following information and services:

The CAS number for any hazardous chemical on the workplace chemical list that is not included by the manufacturing or nonmanufacturing employer pursuant to subdivision (3)(D)(i)(a)  or (b) , if:

The chemical is not a mixture; and

A CAS number exists for the chemical;

The employer shall make available a copy of the workplace chemical list for inspection by the public during regular office hours at the division's central office or any division field office. The copy must be requested by the public and received by the division as specified by this section;

Copies of any workplace chemical list may be obtained from the division of occupational safety and health upon written request and payment of a reasonable copying and mailing fee. The division shall provide the list within ten (10) business days of receipt of the written request;

It is the intention of the general assembly, pursuant to this section, to provide access to information concerning hazardous chemicals used and stored in this state to the citizens of this state who live and work in proximity to the chemicals to enable the citizens to make informed decisions concerning their health, safety and welfare.

Acts 2013, ch. 257, § 1; 2014, ch. 709, § 1.

Compiler's Notes. Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019 (Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4), concerning the Hazardous Chemical Right to Know Law, was repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Amendments. The 2014 amendment rewrote (3)(A)(i) and (B)(i) which read: “(3)(A)(i) Manufacturing employers shall compile and maintain a workplace chemical list, which shall contain the following information for each hazardous chemical known to be present in the workplace:“(a) The chemical name or common name used on the SDS or the container label, or both;“(b) The chemical abstract service (CAS) number for the hazardous chemical, if the number is included on the SDS; and“(c) The work area or workplace in which the hazardous chemical is normally used or stored;”“(B)(i) Nonmanufacturing employers shall compile and maintain a workplace chemical list, which shall contain the following information for each hazardous chemical normally used or stored in the workplace in excess of fifty-five gallons (55 gal.) or five hundred pounds (500 lbs.):“(a) The chemical name or the common name used on the SDS or container label, or both;“(b) The CAS number, if the number is included on the SDS; and“(c) The work area or workplace in which the hazardous chemical is normally stored or used;”

Effective Dates. Acts 2014, ch. 709, § 2. July 1, 2014.

Cross-References. Confidentiality of public records, § 10-7-504.

50-3-2002. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2003. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2004. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2005. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2006. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2007. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2008. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2009. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2010. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2011. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2012. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2013. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2014. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2015. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2016. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2017. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2018. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2019. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

Chapter 4
Administrative Inspections

50-4-101. Administrative inspection warrant available to department of labor and workforce development.

In the event that an employee or official of the department of labor and workforce development authorized to conduct inspections is denied permission to make that inspection, and a warrant is required by the constitution of the United States or the state of Tennessee, the employee or official may obtain an administrative inspection warrant in accordance with the procedures outlined in this chapter. Section 39-16-402 and title 40, chapter 6, part 1, do not apply to warrants issued pursuant to this chapter.

Acts 1979, ch. 345, § 2; T.C.A., § 50-601; Acts 1996, ch. 675, § 50; 1999, ch. 520, § 41.

Cross-References. Inspection under Occupational Safety and Health Act, title 50, ch. 3, part 3.

Search warrants, Tenn. R. Crim. P. 41.

NOTES TO DECISIONS

1. Application.

Child Labor Act provides authority to the Department of Labor and Workforce Development to immediately request the records that are required to be maintained by the Child Labor Act be produced for inspection, however, if the employer refuses an immediate inspection of the records, the appropriate recourse is for the Department to seek an administrative warrant pursuant to T.C.A. § 50-4-101, and the Department may not threaten an employer with a penalty for asserting its Fourth Amendment right. Publix Super Mkts., Inc. v. Tenn. Dep't of Labor & Workforce Dev., 402 S.W.3d 218, 2012 Tenn. App. LEXIS 799 (Tenn. Ct. App. Aug. 24, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 284 (Tenn. Mar. 5, 2013).

50-4-102. “Issuing officer” defined.

As used in this chapter, “issuing officer,” means either:

  1. Any official authorized by law to issue search warrants; or
  2. Any court of record in the county of residence of the agency making application for an administrative inspection warrant.

Acts 1979, ch. 345, § 3; T.C.A., § 50-602.

50-4-103. Grounds for issuing administrative inspection warrants — Probable cause.

The issuing officer is authorized to issue administrative inspection warrants authorizing an employee or official of the department of labor and workforce development to inspect named premises and seize certain items. In so doing, the issuing officer must determine from the affidavits filed by the agency requesting the warrant that:

  1. The agency and employee or official has the statutory authority to conduct the inspection;
  2. Probable cause exists to believe that a violation of law has occurred or is occurring. Probable cause in these cases is not the same standard as used in obtaining criminal search warrants. In addition to a showing of specific evidence of an existing violation, probable cause can be found upon a showing of facts justifying further inquiry, by inspection, to determine whether a violation of law is occurring. This finding can be based upon a showing that:
    1. The inspection of the premises in question was to be made pursuant to an administrative plan containing neutral criteria supporting the need for the inspection;
    2. Previous inspections have shown violations of law and the present inspection is necessary to determine whether those violations have been abated;
    3. The business, occupation, product, equipment, materials, wastes or other characteristics of a particular enterprise or class of enterprises, including the named premises, present a probability of violation of the law in excess of the general business community;
    4. Complaints have been received by the agency and presented to the issuing officer from persons who, by status or position, have personal knowledge of violations of law occurring on the named premises; or
    5. Any other showing consistent with constitutional standards for probable cause in administrative inspections;
  3. The inspection is reasonable and not intended to arbitrarily harass the persons or business involved;
  4. The areas and items to be inspected or seized are accurately described and are consistent with the statutory inspection authority; and
  5. The purpose of the inspection is not criminal in nature and the agency is not seeking sanctions against the person or business for refusing entry.

Acts 1979, ch. 345, § 4; T.C.A., § 50-603; Acts 1999, ch. 520, § 41.

50-4-104. Issuance of warrant — Notice not required.

  1. The issuing officer shall immediately make a finding as to whether an administrative inspection warrant should be issued and if the issuing officer so determines, issue the warrant.
  2. No notice shall be required prior to the issuance of the warrant.

Acts 1979, ch. 345, § 5; T.C.A., § 50-604.

50-4-105. Contents of warrant.

All warrants shall include at least the following:

  1. The name of the agency and employee or official requesting the warrant;
  2. The statutory authority for the inspection;
  3. The name of the person or persons submitting affidavits in support of the issuance of the warrants;
  4. The names of the persons who will conduct the inspection;
  5. A reasonable description of the property and items to be inspected and seized;
  6. A brief description of the purposes of the inspection; and
  7. Any other requirements or particularity required by the constitutions of the United States and the state of Tennessee, regarding administrative inspections.

Acts 1979, ch. 345, § 6; T.C.A., § 50-605.

50-4-106. Assistance of department of labor and workforce development representative — Execution of warrant.

  1. It is the duty of any representative of the department of labor and workforce development charged with the enforcement of the Occupational Safety and Health Act, compiled in chapter 3 of this title, upon the request of the inspecting person or persons, to accompany the person or persons and assist in the service and execution of an administrative inspection warrant issued pursuant to this chapter.
  2. All warrants shall be executed within ten (10) days of issuance.

Acts 1979, ch. 345, § 7; T.C.A., § 50-606; Acts 1999, ch. 520, § 41.

50-4-107. Obstruction of inspection — Misdemeanor.

Any person who willfully refuses to permit inspection, obstructs inspection or aids in the obstruction of an inspection of property described in an administrative inspection warrant commits a Class C misdemeanor.

Acts 1979, ch. 345, § 8; T.C.A., § 50-607; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

50-4-108. Suppression of evidence seized during unlawful inspection.

  1. Any person aggrieved by an unlawful inspection of premises named in an administrative inspection warrant may in any judicial or administrative proceeding move to suppress any evidence or information received, or move for the return of any item seized, by the agency pursuant to the inspection.
  2. If the court or the administrative agency finds that the inspection was unlawful, the evidence and information shall be suppressed and any item seized returned and not considered in the proceeding.

Acts 1979, ch. 345, § 9; T.C.A., § 50-608.

Chapter 5
Child Labor

Part 1
Child Labor Act of 1976

50-5-101. Short title.

This part shall be known and may be cited as the “Child Labor Act of 1976.”

Acts 1976, ch. 480, § 1; T.C.A., § 50-701.

Cross-References. Policy of employing young persons to work in state parks and recreation areas, § 11-1-116.

Law Reviews.

A Survey of Tennessee Labor Cases Since 1954 (D. Bruce Shine and Shelburne Ferguson, Jr.), 47 Tenn. L. Rev. 323 (1980).

It's No Revolution: Long Standing Legal Principles Mandate the Preemption of State Laws in Conflict with Section 3(o) of the Fair Labor Standards Act (Anna Wermuth and Jeremy Glenn), 40 U. Mem. L. Rev. 839 (2010).

Collateral References.

Constitutionality of child labor laws. 12 A.L.R. 1216, 21 A.L.R. 1437.

Constitutionality of statute limiting hours of labor of children and women in private industry. 90 A.L.R. 815.

Exhibitions or entertainments by children, construction and application of child labor law as regards. 72 A.L.R. 141.

Nonprofit charitable institutions as within operation of child labor acts. Stansberry v. McKenzie, 192 Tenn. 638, 241 S.W.2d 600, 1951 Tenn. LEXIS 310, 26 A.L.R.2d 1028 (1951).

Streets, construction and application of statutes or ordinances relating to child labor in. 152 A.L.R. 579.

50-5-102. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Agricultural work” includes farming in all its branches, and, among other things, includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural or horticultural commodities, the raising of livestock or poultry, and any practices performed by a farmer or on a farm as an incident to or in conjunction with the farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market;
  2. “Commissioner” means the commissioner of labor and workforce development or the commissioner's designated representative;
  3. “Department” means the department of labor and workforce development;
  4. “Director of schools” means the director of schools, or the director's designee, in the county, city, town or special school district in which a minor seeking employment resides or is to be employed; provided, that, with respect to a home school, as defined in § 49-6-3050, “director of schools” means the director of the local education agency (LEA) where the child who has been registered as a home schooled child would otherwise attend; and with respect to a home school that teaches kindergarten through grade twelve (K-12) where the parents are associated with an organization that conducts church-related schools, as defined in § 49-50-801, the “director of schools” means the director of the church-related school;
  5. “Employ” means to permit or suffer to work in employment or a gainful occupation;
  6. “Employer” includes, but is not limited to, any individual, partnership, association, corporation, business trust, legal representative or any organized group of persons, acting directly or indirectly in the interest of an employer in relation to an employee;
  7. “Employment or gainful occupation” means any work engaged in for compensation in money or other valuable consideration, whether paid to the minor or some other person, including, but not limited to, work as a servant, agent, subagent or independent contractor;
  8. “Minor” means a person of either sex under eighteen (18) years of age, unless otherwise provided;
  9. “School days” means any day when normal classes are in session during the regular school year in the school district;
  10. “School hours” means that period of time during a school day when school is in session and students are required to attend classes;
  11. “Self-employed” means earning income directly from one's own business, trade or profession rather than as a specified salary or wages from an employer;
  12. “Sexual conduct” means actual or simulated sexual intercourse, sodomy, sexual bestiality, masturbation, sadomasochistic abuse, excretion, or the exhibition of the male or female genitals;
  13. “Week” means a fixed and regularly recurring period of seven (7) consecutive days; and
  14. “Youth peddling” means the selling of merchandise by a minor under sixteen (16) years of age to customers at the customer's residence, at a customer's place of business, or in public places such as street corners or public transportation stations. “Youth peddling” does not include the activities of individuals who are self-employed or who volunteer to sell goods or services on behalf of not-for-profit organizations or governmental entities or for school functions.

Acts 1976, ch. 480, § 2; 1978, ch. 541, § 1; T.C.A., § 50-702; Acts 1998, ch. 781, § 2; 1999, ch. 203, § 1; 1999, ch. 520, § 41.

50-5-103. Employment of minor under 14 years of age — Penalty.

  1. A minor under fourteen (14) years of age may not be employed in any gainful occupation except as otherwise provided in § 50-5-107.
  2. Any person who violates subsection (a) commits a Class D felony.

Acts 1976, ch. 480, § 3; T.C.A., § 50-703; Acts 2001, ch. 378, § 1.

Cross-References. Penalty for Class D felony, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

50-5-104. Employment of minors fourteen or fifteen years of age.

  1. A minor who is either fourteen (14) or fifteen (15) years of age may be employed in connection with any gainful occupation that:
    1. Does not interfere with the minor's schooling, health or well-being;
    2. Is not prohibited by subsection (b); or
    3. Is not prohibited by § 50-5-106.
  2. A minor who is either fourteen (14) or fifteen (15) years of age may not be employed:
    1. During school hours;
    2. Between the hours of seven o'clock p.m. (7:00 p.m.) and seven o'clock a.m. (7:00 a.m.), if the next day is a school day;
    3. Between the hours of nine o'clock p.m. (9:00 p.m.) and six o'clock a.m. (6:00 a.m.);
    4. More than three (3) hours a day on school days;
    5. More than eighteen (18) hours a week during a school week;
    6. More than eight (8) hours a day on nonschool days; or
    7. More than forty (40) hours a week during nonschool weeks.

Acts 1976, ch. 480, § 4; 1978, ch. 541, § 2; T.C.A., § 50-704.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

Law Reviews.

Satisfying the State Interest in Education with Private Schools, 49 Tenn. L. Rev. 955 (1982).

50-5-105. Employment of minors sixteen or seventeen years of age.

  1. A minor who is sixteen (16) or seventeen (17) years of age may be employed in connection with any gainful occupation that:
    1. Does not interfere with the minor's health or well-being;
    2. Is not prohibited by subsection (b); or
    3. Is not prohibited by § 50-5-106.
  2. A minor who is sixteen (16) or seventeen (17) years of age and is enrolled in school may not be employed:
    1. During those hours when the minor is required to attend classes; or
    2. Between the hours of ten o'clock p.m. (10:00 p.m.) and six o'clock a.m. (6:00 a.m.), Sunday through Thursday evenings preceding a school day.
      1. If the parents or guardians of the minor submit to the employer a signed and notarized statement of consent, then the minor may be employed between the hours of ten o'clock p.m. (10:00 p.m.) and twelve o'clock midnight (12:00 a.m.), Sunday through Thursday evenings preceding a school day; provided, that under no circumstances shall the minor be employed between those hours on those evenings on more than three (3) occasions during any week.
      2. Each statement of consent shall be submitted to the employer on a carbonized form provided for the purpose by the department. Upon accepting the form, the employer shall promptly mail the carbon copy of the form to the commissioner.
      3. The form shall remain valid until the end of the school year during which it is submitted or until termination of the minor's employment, or until the minor reaches the age of majority, whichever occurs first; and the original copy of the form shall be maintained for the period of its effectiveness by the employer at the location of the minor's employment.
      4. At any time, consent may be rescinded by submission to the employer of a statement of rescission, signed by the parents or guardians of the minor.
  3. With respect to a student enrolled with a church-related school as defined in § 49-50-801, or who is home schooled in accordance with § 49-6-3050 and has the consent of the parent conducting the home school, subdivision (b)(1) shall not apply. However, to work during the hours identified in subdivision (b)(1), the student shall also present to the employer a letter signed by the director, as defined in § 50-5-102, confirming the student's enrollment and the authorization to work. The director of the church-related school shall send a copy of the letter to the director of the LEA of the school district in which the child resides.
  4. If the department discovers that an employer has violated this section or has violated § 50-5-111, by failing to maintain the required file record, including an accurate time record showing the hours of a minor's beginning and ending of work each day, then the department shall promptly take appropriate actions to ensure imposition of the sanctions prescribed by § 50-5-112.

Acts 1976, ch. 480, § 5; 1978, ch. 541, § 3; T.C.A., § 50-705; Acts 1990, ch. 787, § 1; 1998, ch. 781, § 1; 1999, ch. 520, § 41.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

Law Reviews.

Satisfying the State Interest in Education with Private Schools, 49 Tenn. L. Rev. 955 (1982).

50-5-106. Prohibited employment for minors.

A minor may not be employed in connection with the following:

  1. Occupations in or about plants or establishments manufacturing or storing explosives or articles containing explosive components;
  2. Motor vehicle driving occupations;
  3. Coal mine occupations;
  4. Logging occupations and occupations in the operation of any sawmill, lath mill, shingle mill or cooperage-stock mill;
  5. Occupations involved in the operation of power-driven woodworking machines;
  6. Occupations involving exposure to radioactive substances and to ionizing radiations;
  7. Occupations involved in the operation of elevator and other power-driven hoisting apparatus;
  8. Occupations involved in the operation of power-driven metal-forming, punching and shearing machines;
  9. Occupations in connection with mining elements other than coal;
  10. Occupations involving slaughtering, meat-packing, processing or rendering;
  11. Occupations involved in the operation of hazardous power-driven bakery machines;
  12. Occupations involved in the operation of hazardous power-driven paper products machines;
  13. Occupations involved in the manufacture of brick, tile and kindred products;
  14. Occupations involved in the operation of circular saws, band saws and guillotine shears;
  15. Occupations involved in wrecking, demolition and ship-breaking operations;
  16. Occupations involved in roofing operations;
  17. Occupations in excavation operations;
  18. Any occupation in a place of employment where the average monthly gross receipts from the sale of intoxicating beverages exceed twenty-five percent (25%) of the total gross receipts of the place of employment, or in any place of employment where a minor will be permitted to take orders for or serve intoxicating beverages, regardless of the amount of intoxicating beverages sold in the place of employment;
  19. Occupations that the commissioner shall by regulation, pursuant to this part, declare to be hazardous or injurious to the life, health, safety and welfare of minors;
    1. Occupations involving posing or modeling, alone or with others, while engaged in sexual conduct for the purpose of preparing a film, photograph, negative, slide or motion picture;
    2. As used in (20)(A), “sexual conduct” means actual or simulated conduct, sexual intercourse, sodomy, sexual bestiality, masturbation, sadomasochistic abuse, excretion, or the exhibition of the male or female genitals; and
  20. Occupations involved in youth peddling.

Acts 1976, ch. 480, § 7; 1977, ch. 227, § 1; T.C.A., § 50-707; Acts 1999, ch. 203, § 2.

Cross-References. Penalty for using children in pornography, § 50-5-113.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VII. Protection of Minors (Neil P. Cohen), 45 Tenn. L. Rev. 489 (1978).

Collateral References.

Lawn mowing by minors as violation of child labor statutes. 56 A.L.R.3d 1166.

50-5-107. Exempt minors.

This part shall not apply to any minor who:

  1. Is employed in housework in the minor's home;
  2. Is employed by a parent or guardian in a nonhazardous occupation, as defined by § 50-5-106;
  3. Is employed in agricultural work;
  4. Is employed in the distribution or sale of newspapers;
  5. Is employed in errand and delivery work by foot, bicycle or public transportation;
  6. Is self-employed;
  7. Is a musician or entertainer, except in cases covered by § 50-5-106(20);
  8. Has graduated from high school or has the equivalent of a high school diploma, but only if a copy of the minor's high school diploma or its equivalent is retained by the employer in the employer's personnel records;
  9. Is or has been lawfully married or is a parent, but only if a copy of either the minor's marriage license or the birth certificate of the minor's child is retained by the employer in the employer's personnel records;
  10. Is sixteen (16) or seventeen (17) years of age and is an apprentice employed in a craft recognized as an apprenticable trade and is registered by the bureau of apprenticeship and training of the United States department of labor and is employed in accordance with the standards established by that bureau;
  11. Is sixteen (16) or seventeen (17) years of age and is a student learner enrolled in a course of study and training in a cooperative vocational training program under a recognized state or local educational authority or in a course of study in a substantially similar program conducted by a private school. The student learner must be employed under a written agreement, a copy of which must be retained by the employer in the employer's personnel records;
  12. Is an enrollee in a public employment program that is conducted or funded by the federal government; provided, that the employer has on file in the employer's personnel records an unrevoked written statement from a representative of the federal agency administering that program certifying the enrollment of the minor in the program;
  13. Is sixteen (16) or seventeen (17) years of age and not enrolled in school, but only if the employer has on file in the employer's personnel records a written statement signed by the director of schools stating that the particular minor is not enrolled in school; or is lawfully excused from compulsory school attendance under § 49-6-3005, but only if the employer has on file in the employer's personnel records a written statement signed by the director of schools stating that the particular minor has been excused under § 49-6-3005; or
  14. Is fourteen (14) years of age or older and who is a student enrolled in a course of study and training in a cooperative career and technical training program, including a work experience and career exploration program, that is approved and authorized by the department of education and that complies with all applicable federal laws. The student learner must be employed under a written agreement, a copy of which must be retained by the employer in the employer's personnel records.

Acts 1976, ch. 480, § 8; 1977, ch 227, § 2; 1978, ch. 541, § 4; T.C.A., § 50-708; Acts 2008, ch. 888, § 1.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VII. Protection of Minors (Neil P. Cohen), 45 Tenn. L. Rev. 489 (1978).

50-5-108. Special exemptions.

  1. The commissioner may consider and grant special exemptions submitted in writing by the minor and the minor's parents or guardian from this part if it is found that to do so would be in the best interest of the minor involved, and present no danger to the life, health or safety, or schooling of the minor.
    1. Before granting a special exemption, the commissioner shall investigate and determine from all pertinent data available that there is reasonable cause to believe that the exemption is in the best interests of the minor.
    2. If the commissioner finds that the minor is entitled to a special exemption, the commissioner will immediately report, in writing, the commissioner's findings and reasons for granting the special exemption, to the director of schools in the county in which the minor resides.
  2. Failure by the commissioner to grant a special exemption within ten (10) days of submission shall be considered a refusal.
    1. When a special exemption has been refused, the commissioner shall, upon demand made within five (5) days after the refusal, furnish the minor and the minor's parents or guardian with a written statement of the reasons for the refusal.
    2. This written statement shall be furnished by the commissioner within ten (10) days of the commissioner's receipt of the demand by the minor and the minor's parents or guardian.
    1. Within ten (10) days after the receipt of the statement by the commissioner, the minor and the minor's parents or guardian may petition the court having jurisdiction over juvenile matters in the county in which the minor resides for an order directing the commissioner to grant a special exemption.
    2. The petition shall state the reasons why the court should issue an order, and the petitioner shall attach to the petition the statement of the commissioner obtained pursuant to subsection (d).
    1. The court shall hold a hearing and receive further testimony and evidence it deems necessary.
    2. If the court finds that the issuance or reissuance of a permit is in the best interest of the minor, it shall grant the petition.

Acts 1976, ch. 480, § 9; 1978, ch. 541, § 5; T.C.A., § 50-709.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

50-5-109. Proof of age required for employment or continued employment — Oath by parent or guardian if evidence unavailable.

Before any minor may be employed or continue to be employed in connection with any gainful occupation, the employer shall require proof of the age of the minor employee or prospective employee by requiring the minor to provide the employer with a copy of the minor's birth certificate, passport, driver's license or state issued identification. If the evidence is not available, the parents or guardian shall appear with the minor before the judge or other officer of the juvenile court of the county in which the minor resides and shall make an oath as to the age of the minor.

Acts 1976, ch. 480, § 10; 1977, ch. 198, § 1; 1978, ch. 541, § 6; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A., § 50-710; Acts 2001, ch. 378, § 2.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

50-5-110. Duties of department.

The department shall administer and enforce this part. In addition, the department shall:

  1. Supply employers of minors with printed copies of the regulations governing the employment and hours of work of minors and occupations prohibited to minors under this part;
  2. Inspect all places where minors may be employed and all pertinent records of employment, at any reasonable time, and as often as necessary to effectively enforce this part;
  3. Notify in writing any person charged with a violation of this part as to the nature of the violation;
  4. Bring a complaint before any court of competent jurisdiction against persons violating this part and prosecute these violations; and
  5. Make, keep and preserve a file record of all places where minors may be employed.

Acts 1976, ch. 480, § 13; 1978, ch. 541, § 7; T.C.A., § 50-713; Acts 1986, ch. 844, § 5.

NOTES TO DECISIONS

1. Records Request.

Tennessee Department of Labor and Workplace Development should not have assessed penalties against an employer for violations of T.C.A. § 50-5-111(1), (4), based on the employer's failure to provide records within an hour. Publix Super Mkts., Inc. v. Tenn. Dep't of Labor & Workforce Dev., 402 S.W.3d 218, 2012 Tenn. App. LEXIS 799 (Tenn. Ct. App. Aug. 24, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 284 (Tenn. Mar. 5, 2013).

50-5-111. Duties of employers of minors.

Employers of minors subject to regulation under this part shall:

  1. Make, keep and preserve a separate and independent file record for each minor employed, which shall be kept at the location of the minor's employment and shall include:
    1. An employment application;
    2. A copy of the minor's birth certificate or other evidence of the minor's age as provided in § 50-5-109;
    3. An accurate time record showing the hours of the minor's beginning and ending of work each day if the minor is one subject to § 50-5-104 or § 50-5-105; and
    4. Any records required under § 50-5-107(8)-(14);
  2. Allow the department to inspect, during regular working hours, any and all premises where minors are or could be employed and the contents of the individual file records specified in subdivision (1);
  3. Post and maintain in a conspicuous place on the business premises a printed notice, furnished by the department, stating the regulations governing the employment and hours of work of minors and employment prohibited to minors under this part; and
  4. Furnish to the department records relative to the employment of minors.

Acts 1976, ch. 480, § 15; 1978, ch. 541, § 8; T.C.A., § 50-715; Acts 1986, ch. 844, § 6; 1990, ch. 787, § 2; 2001, ch. 378, § 3.

NOTES TO DECISIONS

1. Records Request.

Tennessee Department of Labor and Workplace Development should not have assessed penalties against an employer for violations of T.C.A. § 50-5-111(1), (4), based on the employer's failure to provide records within an hour. Publix Super Mkts., Inc. v. Tenn. Dep't of Labor & Workforce Dev., 402 S.W.3d 218, 2012 Tenn. App. LEXIS 799 (Tenn. Ct. App. Aug. 24, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 284 (Tenn. Mar. 5, 2013).

Child Labor Act provides authority to the Department of Labor and Workforce Development to immediately request the records that are required to be maintained by the Child Labor Act be produced for inspection, however, if the employer refuses an immediate inspection of the records, the appropriate recourse is for the Department to seek an administrative warrant pursuant to T.C.A. § 50-4-101, and the Department may not threaten an employer with a penalty for asserting its Fourth Amendment right. Publix Super Mkts., Inc. v. Tenn. Dep't of Labor & Workforce Dev., 402 S.W.3d 218, 2012 Tenn. App. LEXIS 799 (Tenn. Ct. App. Aug. 24, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 284 (Tenn. Mar. 5, 2013).

50-5-112. Violations — Penalties.

    1. Except as provided in § 50-5-103, any employer, who violates this part, or hinders or obstructs the department in administering or enforcing this part, or any parent or guardian who permits a child under the parent's or guardian's control or custody to work in violation of this part, commits a Class A misdemeanor.
    2. At the discretion of the commissioner, the employer shall be subject to a civil penalty of not less than one hundred fifty dollars ($150) nor more than one thousand dollars ($1,000) for each instance of an employer's violation of this part. In determining the amount of the penalty, the appropriateness of the penalty to the size of the business of the person charged and the gravity of the violation shall be considered. If the commissioner determines that the violation was unintentional, there shall be a warning in lieu of a penalty on the first offense.
    3. On second or subsequent violations, the civil penalty is applicable and may be assessed at the discretion of the commissioner, or the commissioner's designated representative.
    4. It shall be at the sole discretion of the commissioner to elect to proceed either civilly or criminally upon any violation of this part; however, the employer shall not be charged both civilly and criminally for the same violation.
  1. Each day during which any violation of subsection (a) continues after notification by the department that a violation exists constitutes a separate punishable offense.
  2. Any person who engages a minor under sixteen (16) years of age in youth peddling and transports the minor more than five (5) miles from the minor's residence shall, at the discretion of the commissioner, be subject to a penalty of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000) if evidence of two (2) or more of the following factors is present:
    1. The minor is working more than three (3) hours a day on school days;
    2. The minor is working more than eighteen (18) hours a week during a school week;
    3. The minor is working more than eight (8) hours a day on nonschool days;
    4. The minor is working more than forty (40) hours a week during nonschool weeks;
    5. The minor is working after seven o'clock p.m. (7:00 p.m.) if the next day is a school day; or
    6. The employer fails to comply with the recordkeeping requirements of § 50-5-111.
  3. Any person who violates § 50-5-103 shall, at the discretion of the commissioner, be subject to a penalty of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000). Each instance of a minor working in violation of § 50-5-103 shall constitute a separate violation.
  4. Each instance of a minor under sixteen (16) years of age working in violation of the youth peddling provisions of this part shall be considered a separate violation.
  5. Any person who violates the youth peddling provisions of this part commits a Class D felony.
  6. If, within thirty (30) days from the receipt of written notification of penalties assessed pursuant to this part, an employer fails to notify the commissioner in writing of its intent to contest the imposition of the penalty, the assessment of a penalty as stated in the notification shall be deemed a final order of the commissioner, and not subject to further review.
  7. All penalties owed under this part shall be paid to the commissioner.

Acts 1977, ch. 60, § 1; T.C.A., § 50-716; Acts 1989, ch. 591, § 111; 1993, ch. 220, § 1; 1999, ch. 203, §§ 3, 4; 2001, ch. 378, §§ 4-6; 2003, ch. 286, §§ 1, 2.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Penalty for Class D felony, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VII. Protection of Minors (Neil P. Cohen), 45 Tenn. L. Rev. 489  (1978).

50-5-113. Using children in pornography — Class C felony.

Any person who violates § 50-5-106(20) or who violates § 50-5-103 by employing a child in an occupation that would violate § 50-5-106(20) if the child were over fourteen (14) years of age commits a Class C felony.

Acts 1977, ch. 227, § 3; T.C.A., § 50-717; Acts 1989, ch. 591, § 47.

Cross-References. Penalty for Class C felony, § 40-35-111.

50-5-114. Rules and regulations.

The commissioner may issue, amend and rescind all rules, regulations and procedures necessary to effectuate the purpose of this part.

Acts 1978, ch. 541, § 9; T.C.A., § 50-718; Acts 1986, ch. 844, § 10.

50-5-115. Breaks and meal periods for working minors.

A minor must have a thirty-minute unpaid break or meal period if scheduled to work six (6) hours consecutively. This break shall not be scheduled during or before the first hour of scheduled work activity.

Acts 1993, ch. 220, § 2.

Part 2
Tennessee Protection of Minor Performers Act

50-5-201. Short title.

This part shall be known and may be cited as the “Tennessee Protection of Minor Performers Act.”

Acts 2003, ch. 168, § 1.

Law Reviews.

Stand by Me: The Tennessee Protection of Minor Performers Act (Dorothy Kathryn Campbell), 40 No. 11 Tenn. B.J. 12 (2004).

50-5-202. Power to amend or repeal.

The general assembly shall have power to amend or repeal all or part of this part at any time and all persons subject to this part shall be governed by the amendment or repeal.

Acts 2003, ch. 168, § 1.

50-5-203. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Artistic or creative services” means, but is not limited to, services as an actor, actress, dancer, musician, comedian, vocalist, including demonstration recordings, stunt-person, voice-over artist, model, or other performer or entertainer, or as a songwriter, musical producer or arranger, writer, director, producer, production executive, choreographer, composer, conductor, or designer, or other performing artist; and
  2. “Minor” means any person who has not attained eighteen (18) years of age and has not had the disability of minority removed so as to make this part inapplicable.

Acts 2003, ch. 168, § 1.

Cross-References. Removal of disability of minors, title 29, chapter 31.

50-5-204. Construction.

This part does not repeal or affect the rights or powers under title 29, chapter 31, regarding the removal of disability of minors, and all provisions of that chapter shall remain in force and effect and applicable to the appropriate circumstances addressed in that chapter.

Acts 2003, ch. 168, § 1.

50-5-205. Approval not exemption from other law — Disability of non-age not removed generally.

Approval of a contract pursuant to this part shall not:

  1. Exempt any person from any other law with respect to licenses, consents, or authorizations required for any conduct, employment, use, or exhibition of the minor in this state, nor limit in any manner the discretion of the licensing authority or other persons charged with the administration of the requirements, nor dispense with any other requirement of law relating to the minor;
  2. Unless specifically so provided in the order, remove the disability of non-age for any other contract with the same minor that is not approved by the court pursuant to this section, nor, unless specifically so provided in the order, is the disability of non-age of the minor removed generally for the minor, nor is the minor emancipated for any other purpose or contract other than the performance of contracts approved pursuant to this section; and
  3. Be granted for a contract that provides for an employment, use, or exhibition of the minor, within or without the state, that is prohibited by law and in particular by any federal or state minor labor law, and could not be licensed to take place in this state.

Acts 2003, ch. 168, § 1.

Cross-References. Removal of disability of minors, title 29, chapter 31.

50-5-206. Applicability.

The chapters of this title shall apply to every minor person who desires to perform artistic or creative services in the state, including minor persons who reside in the state and minor persons not residing in the state, as long as some or all of the services are to be provided or delivered in the state, or at least one (1) of the other parties are doing business in the state.

Acts 2003, ch. 168, § 1.

50-5-207. Disaffirmance of approved contract on ground of minority.

If a contract is approved by the appropriate court pursuant to this part, then the minor may not, either during minority or after reaching majority, disaffirm the contract on the ground of minority, nor may the minor assert that the minor's parent or guardian lacked the authority to make the contract personally as an adult.

Acts 2003, ch. 168, § 1.

50-5-208. Who may apply for court order.

Application for an order pursuant to this part may be made by the minor, or the minor's parent, or legal guardian, or guardian ad litem appointed pursuant to this part. For the purposes of any proceeding under this part, a parent or legal guardian, as the case may be, entitled to the physical custody, care, and control of the minor at the time of the proceeding shall be considered the minor's guardian ad litem for the proceeding, unless the court determines that appointment of a different individual as guardian ad litem is required in the best interests of the minor.

Acts 2003, ch. 168, § 1.

50-5-209. Approval for contract that is executed, in existence or being performed — Effective date — Earnings.

  1. Approval under this part may be sought for a contract or agreement that is fully executed, is already in existence or under which the parties are currently performing. Approval may be effective as of the date upon which the contract has been executed, or the date when services were first performed by the minor, if specifically so ordered by the court. The parties may petition the court for approval to be effective within one (1) year of the contract's ratification by the court. The parties may also petition the court for approval of a contract effective date more than one (1) year after the ratification of the contract by the court, if good cause for the delayed effective date is shown by the petitioners.
  2. If a contract is approved pursuant to this part, all earnings, royalties, or other compensation earned or received by the minor pursuant to the approved contract shall become the sole property of the minor who will be authorized to execute any contracts relating to administration or investments of the earnings.

Acts 2003, ch. 168, § 1.

50-5-210. Where to file petition.

Petition for contract approval under this part shall be filed with and, when granted, approved by the court handling probate matters for the county in which the minor resides, where the minor is employed or where the minor performs or renders the minor's services, or intends to do so; or the county in this state where performance of the contract shall be conducted, if the minor is not a resident of the state where the majority of the services are performed and the non-minor party to the contract is either a resident of this state or has been qualified or licensed to do business in the state.

Acts 2003, ch. 168, § 1.

50-5-211. Notice and hearing.

After a petition is filed pursuant to § 50-5-208, and following reasonable notice to all parties to the contract as is fixed by the court, the court will provide all parties to the contract with the opportunity to appear and be heard. The court may approve the contract following the hearing.

Acts 2003, ch. 168, § 1.

50-5-212. Effect of court approval — Revocation of approval.

Court approval of a valid contract shall serve to bind the minor as if the minor executed the contract personally as an adult; and the minor shall be bound to all provisions including the permanent sale of intellectual property rights; provided, however, that the revocation of approval of the contract by the court shall not include the transfer back to the minor of intellectual property rights unless there has been a showing of fraud or misrepresentation by the employer; and, further, that the court approving the contract shall retain the authority to revoke approval of the contract, or modify its terms if assented to by both parties, if the court finds that the well being of the minor requires the disapproval.

Acts 2003, ch. 168, § 1.

50-5-213. Scope.

Contracts eligible for approval under this part shall include contracts pursuant to which a minor person is employed, employs, or agrees to perform or render artistic or creative services, either directly or through a third party including, without limitation, a personal services corporation, manager, booking agent, or producer. For purposes of this part, when a minor renders services as an extra, background performer, or in a similar capacity, through an agency or service that provides one (1) or more performers for a fee, the agency or service shall be considered the minor's employer.

Acts 2003, ch. 168, § 1.

50-5-214. Effect of modifications, amendments, or assignments of contracts.

  1. Modifications, amendments, or assignments of contracts previously approved by the court are deemed a new contract and require separate approval under this part.
  2. Notwithstanding subsection (a), this section does not require court approval if the employing company assigns its rights in the contract to a successor or affiliate entity.

Acts 2003, ch. 168, § 1.

50-5-215. Appointment of guardian ad litem — Court discretion — Criteria — Compensation.

  1. At any time after the filing of the petition, the court in its discretion may appoint a guardian ad litem to represent the interests of the minor or to oversee the minor's earnings related to the contract approved under this part. The court shall appoint a guardian ad litem as to any contract where the parent or guardian will receive remuneration or financial gain from the performance of the contract or if the court deems that the persons have any other conflict of interest with the minor. The court, in determining whether a guardian ad litem should be appointed, may consider the following criteria:
    1. The length of time the exclusive services of the minor are required;
    2. Whether the gross earnings of the minor under the contract are either contingent or unknown;
    3. The amount of gross earnings of the minor under the contract; and
    4. The age of the minor.
  2. The guardian ad litem shall be entitled to reasonable compensation. The court shall have the power to determine which party shall be responsible for the fee, whether the fee and any required bond shall be paid from the earnings of the minor pursuant to the contract sought to be approved, or may apportion the fee between the parties to the proceedings.

Acts 2003, ch. 168, § 1.

50-5-216. Custody of minor — Contents of petition.

  1. A parent, guardian, or legal custodian entitled to the physical custody, care, and control of a minor who enters into a contract of a type described in this part shall provide a certified copy of the minor's birth certificate indicating the minor's minority to the other party or parties to the contract.
  2. A guardian or a person with temporary legal custody must provide a certified copy of the court document appointing the person as the minor's legal guardian.
  3. A complete copy of the contract or proposed contract shall be attached to the petition. The petition shall also include the following information:
    1. The full name, residence, and date of birth of the minor;
    2. The name and residence of any living parent of the minor, the name and residence of the person who has care and custody of the minor, and the name and residence of the person with whom the minor resides;
    3. A statement that the minor is a resident of the state. If the minor is not a Tennessee resident, a statement that the petition is for approval of a contract for performance or rendering of services by the minor in the state, specifying the place in the state where the services are to be performed or rendered;
    4. A brief description of the minor's employment and compensation under the contract, including where services of the minor are to be performed, accompanied by a plan for the protection of the minor's earnings under the contract;
    5. The full name and residence of the petitioner, and the interest of the petitioner in the contract or proposed contract or in the minor's performance under the contract; and
    6. Other facts known by the petitioner regarding the minor and the minor's family and property that will show that the contract is reasonable, prudent, and in the best interests of the minor. The information shall include whether the minor has had at any time a guardian ad litem appointed by a court of any jurisdiction and an explanation of the facts regarding the previous appointment. Information regarding whether relief similar to the current petition has been sought on behalf of the minor, including whether a guardian ad litem was appointed for the previous application for court approval.
  4. Upon application by any party or by order of the court, the petition or any portion of the petition, including attachments, may be filed under seal.

Acts 2003, ch. 168, § 1.

50-5-217. Persons to be served with petition.

The following persons, other than one who is the petitioner or who joins in the petition, shall be served with the petition by formal notice, as prescribed by Rule 4 of the Tennessee Rules of Civil Procedure:

  1. The minor;
  2. The minor's legal custodian or guardian ad litem, if any, whether or not appointed or qualified in this state;
  3. Each party to the contract;
  4. The parent or parents of the minor;
  5. Any person having the care and custody of the minor;
  6. The person with whom the minor resides, if other than a parent or guardian; and
  7. If it appears that the minor is married, the minor's spouse.

Acts 2003, ch. 168, § 1.

50-5-218. Court's discretion for hearing in chambers or courtroom — Of record — Sealed.

At the court's discretion, the hearing may be held in the court's chambers or courtroom. The proceeding shall be of record and may be sealed, if the court determines that sealing the record will be in the best interests of the minor.

Acts 2003, ch. 168, § 1.

50-5-219. Minor's personal appearance.

The minor, unless excused by the court for good cause shown, shall attend personally before the court upon the hearing of the petition.

Acts 2003, ch. 168, § 1.

50-5-220. Options of the court.

  1. The court at the hearing or on an adjournment of the hearing, may by its order do any of the following:
    1. Approve or disapprove the contract or proposed contract;
    2. Approve the contract upon such conditions, with respect to modification of the terms of the contract or otherwise, as it shall determine;
    3. Appoint a guardian ad litem as provided by § 50-5-215;
    4. Appoint a trustee to administer the trust for earnings as provided by § 50-5-222; or
    5. Award reasonable attorney's fees and other expenses paid or to be paid by or on behalf of the minor in connection with the proceeding, approval of the contract, and its performance.
  2. The court shall consider the following factors in making its final determination:
    1. The best interest of the minor;
    2. Whether the minor is represented by a lawyer;
    3. The length of the contract;
    4. The age of the minor; and
    5. Any other matter that the court deems appropriate.

Acts 2003, ch. 168, § 1.

50-5-221. Court's review of contract — Protection of earnings.

  1. The court shall ensure that any contract it approves contains all the requirements for the rendering of services of the minor and that the petition includes a plan for the protection of earnings under the contract.
  2. The court shall consider the following when determining the protection of earnings:
    1. The interest of the petitioner in the contract or proposed contract or in the minor's performance under the contract;
    2. The parties who are entitled to the minor's earnings, and, if the minor is not so entitled, facts regarding the property and financial circumstances of the parent or parents, or legal custodian or guardian ad litem, or other third party;
    3. A bank or trust account used expressly for the deposit of fees generated under the contract and the relationship of any proposed trustee of the minor's funds;
    4. The percentage of fees generated that are intended for deposit; and
    5. The minor's financial advisor or other third party who will render investment advice and administer the bank or trust account.
  3. Notwithstanding any provision to the contrary, the creditors of any person, other than the minor, shall not be entitled to the earnings of the minor.

Acts 2003, ch. 168, § 1.

50-5-222. Requirement that portion of earnings be set aside in trust.

Notwithstanding any law to the contrary, in an order approving a minor's contract as described in this part, the court shall require that fifteen percent (15%) of the minor's gross earnings pursuant to the contract be set aside by the minor's employer in trust and shall be paid to the trustee appointed by the court so that it may be invested in an account or other savings plan, and preserved for the benefit of the minor until the minor reaches the age of majority. The court may also require that more than fifteen percent (15%) of the minor's gross earnings be set aside in trust, in an account or other savings plan, and preserved for the benefit of the minor, upon request of the minor's parent or legal guardian, or the minor, through the minor's guardian ad litem. Gross earnings for the purpose of this section refers to those funds earned and received by the minor pursuant to the terms of the contract and does not include those funds applied towards recoupment pursuant to the contract.

Acts 2003, ch. 168, § 1.

Chapter 6
Workers' Compensation Law

Compiler's Notes. Pursuant to § 50-6-101, as amended by the Workers’ Compensation Reform Act of 2013, Acts 2013, ch. 289, the amendments by that act apply to injuries occurring on and after July 1, 2014, and prior law governs  claims having a date of injury prior to July 1, 2014.  For ease of reference, the prior law has been maintained in this volume in a distinctive  typeface following each current law section, along with bracketed language following the section headings indicating that the section is applicable to injuries occurring prior to July 1, 2014.  Those sections that were not amended by Acts 2013, ch. 289 are indicated as applicable to injuries occurring both prior to and on and after July 1, 2014.

Part 1
General Provisions

50-6-101. Short title — Controlling law.

This chapter shall be cited to as the “Workers' Compensation Law” and shall be controlling for any claim for workers' compensation benefits for an injury, as defined in this chapter, when the date of injury is on or after July 1, 2014. All claims having a date of injury prior to July 1, 2014, shall be governed by prior law.

Acts 1919, ch. 123, § 1; Shan. Supp., § 3608a137; Code 1932, § 6851; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-901; Acts 2013, ch. 289, § 3.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, rewrote the section which read: “This chapter shall be known and may be cited as the ‘Workers' Compensation Law.’”.

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Cross-References. Ridesharing, applicability of workers’ compensation provisions, § 65-19-203.

Law Reviews.

The Deep Roots of Workers' Comp: Pirates, Prussians and Progressives Are All in the Family Tree, 49 Tenn. B.J.  10 (2013).

50-6-101. Short title. [Applicable to injuries occurring prior to July 1, 2014.]

This chapter shall be known and may be cited as the “Workers' Compensation Law.”

Acts 1919, ch. 123, § 1; Shan. Supp., § 3608a137; Code 1932, § 6851; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-901.

Cross-References. Ridesharing, applicability of workers' compensation provisions, § 65-19-203.

Law Reviews.

Employer not Liable for Manager's Egregious Misconduct (Timothy S. Bland and Licia M. Williams), 37 No. 10 Tenn. B.J. 17 (2001).

Long Arm: Does OSHA's Reach Extend to Employees Working at Home on Company-Provided Computers? (Linda S. Peterson), 36 No. 11 Tenn. B.J. 14 (2000).

Mass Tort Litigation in Tennessee (Paul Campbell, III and Hugh J. Moore, Jr.), 53 Tenn. L. Rev. 221 (1986).

Products Liability and Workers' Compensation — Malkiewicz v. R.R. Donnelley & Sons Co.: Shielding the Guarantor under the Tennessee Workers' Compensation Law, 22 Mem. St. U.L. Rev. 611 (1992).

The Exclusiveness of an Employee's Workers' Compensation Remedy Against his Employer (Joseph H. King, Jr.), 55 Tenn. L. Rev. 405 (1988).

The OSHA Hazard Communication Standard (Gary C. Shockley), 25 No. 5 Tenn. B.J. 22 (1989).

The Rights of Nonsmokers in Tennessee, 54 Tenn. L. Rev. 671 (1987).

1985 Tennessee Survey: Selected Developments in Tennessee Law, 53 Tenn. L. Rev. 415 (1986).

NOTES TO DECISIONS

1. Constitutionality.

This statute does not violate Tenn. Const., art. I, § 8, providing that no man shall be taken or disseized of his freehold, or in any manner deprived of his life, liberty or property but by the judgment of his peers or the law of the land. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

Constitutional prohibition against express repeal of laws without reciting in title or body substance of laws repealed does not render this statute invalid since it only repeals by implication. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute does not violate the provision of Tenn. Const., art. I, § 21 that no man's particular services or property shall be taken or applied to public use, without just compensation. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute is not violative of Tenn. Const., art. I, § 6, upon the ground that it denies trial by jury, because the parties by accepting the act waive the right of trial by jury, and hence are not deprived of that right, for the statute is elective and if its provisions are accepted, it thereby becomes a part of the contract of employment. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute does not deprive the employee of his property without due process of law in violation of U.S. Const., amend. 14. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute is not unconstitutional in that it undertakes to make an election for, and a binding contract upon, a minor employee, since the statute endows a minor, for its purpose, with power to elect. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

Constitutional prohibition against act containing two subjects was not contravened because both the original act and its title provided a system of workers' compensation and also a system of liability or accident insurance. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

Original act and title were not contrary to constitutional requirements that act and title contain only one subject, in that they provided revenue for the state and compensation to employees by providing for fines after conviction upon violation of certain of its provisions and by appropriating from state revenues sums necessary to effectuate the purpose of the act. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute is elective, and therefore cannot be declared to be discriminative. Vantrease v. Smith, 143 Tenn. 254, 227 S.W. 1023, 1920 Tenn. LEXIS 15 (1920).

This act is not invalid as contrary to Tenn. Const., art. II, § 17 or art. XI, § 8. Mitchell v. Usilton, 146 Tenn. 419, 242 S.W. 648, 1921 Tenn. LEXIS 24 (1921).

No action for punitive damages is allowable in a workers' compensation case. Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963).

2. —Invalid Provision — Elision.

This statute was not unconstitutional as a whole by reason of the invalidity of the provision allowing fees to county judges or chairmen of county courts, because such provision may be elided. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

3. Nature and Effect of Statute.

This statute deprived the employee coming under its provisions of the ordinary remedy for negligence resulting in injury, and substituted compensation for injury by accident arising out of and in course of employment, without reference to negligence, actual or imputed, on the part of the employer. Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, 295 S.W. 68, 1926 Tenn. LEXIS 64 (1927).

Negligence of employer is not taken into account in cases arising under this statute. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931).

The compensation law is both elective and contractual. Hammett v. Vogue, Inc., 179 Tenn. 284, 165 S.W.2d 577, 1942 Tenn. LEXIS 22 (1942).

The Workers' Compensation Act constitutes a complete substitute for the previous remedies in tort on the part of the employee. Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963).

The statute is not a social welfare law. Smith v. Tennessee Furniture Industries, Inc., 212 Tenn. 291, 369 S.W.2d 721, 1963 Tenn. LEXIS 423 (1963).

Workers' Compensation Law is a creature of the general assembly, and any change in its structure must come from the general assembly and not from the courts. Lindsey v. Hunt, 215 Tenn. 406, 384 S.W.2d 441, 1964 Tenn. LEXIS 527 (1964), rehearing denied, Lindsey v. Hunt, 215 Tenn. 406, 387 S.W.2d 344, 1965 Tenn. LEXIS 505 (1964), overruled, Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991); Cordell v. Sky Rides of Am., Inc., 218 Tenn. 485, 404 S.W.2d 488, 1966 Tenn. LEXIS 647 (1966), overruled, Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991); Aerosol Corp. of South v. Johnson, 222 Tenn. 339, 435 S.W.2d 832, 1968 Tenn. LEXIS 435 (1968).

Although Workers' Compensation Law is to be liberally construed to accomplish its intended purposes, it is not a social welfare statute. Smith v. Tennessee Furniture Industries, Inc., 212 Tenn. 291, 369 S.W.2d 721, 1963 Tenn. LEXIS 423 (1963); Bishop Baking Co. v. Forgey, 538 S.W.2d 602, 1976 Tenn. LEXIS 493 (Tenn. 1976).

4. Application and Scope.

Employees hired in another state could maintain an action in Tennessee for benefits under the Tennessee Workers' Compensation Act where they incurred accidental injury while in the scope and course of their employment in Tennessee. Millican v. Liberty Mut. Ins. Co., 224 Tenn. 604, 460 S.W.2d 842, 1970 Tenn. LEXIS 362 (1970).

The workers' compensation laws should be rationally but liberally construed to promote and adhere to the act's purposes of securing benefits to those workers who fall within its coverage. Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923, 1980 Tenn. LEXIS 472 (Tenn. 1980).

Supreme Court of Tennessee thinks that a physician discharging a patient to home, knowing that the patient will be confined to a bed and unable to ambulate or perform other functions without assistance, and knowing that the patient will require care such as changing wound dressings or requiring other such attention, must certainly contemplate that nursing services will be required. The statute requires only that a physician “order” the services, not that the order be reduced to writing. Long v. Mid-Tennessee Ford Truck Sales, Inc., 160 S.W.3d 504, 2005 Tenn. LEXIS 225 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 360 (Tenn. Apr. 18, 2005).

5. Election of Remedies.

Employee's execution of agreement that compensation would be payable until terminated in accordance with Indiana workers' compensation law and his acceptance of benefits thereunder constituted a valid and binding election to receive benefits under Indiana law, thus precluding him from the awarding of benefits under Tennessee law. Clevinger v. Burlington Motor Carriers, 925 S.W.2d 518, 1996 Tenn. LEXIS 462 (Tenn. Special Workers' Comp. App. Panel 1996).

6. Purpose.

The general purpose of compensation laws is to provide compensation for loss of earning power or capacity sustained by workers through injuries in industry. Mathis v. J. L. Forrest & Sons, 188 Tenn. 128, 216 S.W.2d 967, 1949 Tenn. LEXIS 323 (1949).

The Workers' Compensation Law was enacted simply to compensate for disability of the employee occurring under certain specified conditions while such employee is working for the employer, and the purpose of the Occupational Disease Statute is the same. Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 315 S.W.2d 245, 1958 Tenn. LEXIS 230 (1958); Smith v. Tennessee Furniture Industries, Inc., 212 Tenn. 291, 369 S.W.2d 721, 1963 Tenn. LEXIS 423 (1963).

The policy of the law is for a speedy trial on the issues of liability. Stovall v. General Shoe Corp., 204 Tenn. 358, 321 S.W.2d 559, 1959 Tenn. LEXIS 288 (1959).

One of the purposes of the statute is to increase the right of employees to be compensated for injuries growing out of their employment. W. S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493, 1961 Tenn. LEXIS 323 (1961).

7. What Constitutes Accident.

When a condition has developed gradually over a period of time resulting in a definite work-connected, unexpected, fortuitous injury, it is an “accident” within the Workers' Compensation Act, T.C.A. § 50-6-101 et seq., and is compensable. Conroy v. Carter Automotive Products Corp., 640 S.W.2d 831, 1982 Tenn. LEXIS 360 (Tenn. 1982).

Mental disability incurred when plaintiff, a driver's license examiner, was assaulted on the premises of her employer's driver's license testing center, was a sufficiently acute, sudden or unexpected emotional stress to support the finding of “injury by accident” which arose out of plaintiff's employment. Beck v. State, 779 S.W.2d 367, 1989 Tenn. LEXIS 467 (Tenn. 1989).

8. Statute as Part of Employment Contracts.

The provisions of this law are written into every contract of employment covered thereby. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919); Kennedy v. Columbian Casualty Co., 163 Tenn. 312, 43 S.W.2d 201, 1931 Tenn. LEXIS 118 (1931); Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221, 1931 Tenn. LEXIS 131 (1931), rehearing denied, 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931).

A widow, claiming the benefits of the act, is bound by all the terms which the law wrote into her husband's contract of employment. Battle Creek Coal & Coke Co. v. Martin, 155 Tenn. 34, 290 S.W. 18, 1926 Tenn. LEXIS 16 (1927).

Under this law the relation of employer and employee is contractual, and the terms of the law are to be read as a part of every contract of service between those subject to its terms. Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678, 1947 Tenn. LEXIS 407 (1947).

The Workers' Compensation Act of Tennessee imposes its terms upon all contracts of employment that it covers. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

9. Nature of Employment Contracts.

The agreement between an employer and an employee under this law is in the nature of an insurance contract. Hughes v. Elliott, 162 Tenn. 188, 35 S.W.2d 387, 1930 Tenn. LEXIS 78 (1931).

10. Disavowing Contractual Obligations.

An employee cannot be allowed to claim benefits paid by his employer under a contract providing for health care and at the same time be allowed to disavow key provisions of the contract. If the employee were permitted to do so, the logical result would be for the employer to delay any and all disability payments until it could be judicially determined whether its liability to the employee was under the disability plan contract or under the Workers' Compensation Act. There would be no other way for the employer to avoid the possibility of having to pay twice for the same disability. This procedure would result in a hardship to the employee, and thus defeat the purpose of both the Workers' Compensation Act and the disability plan, as it would inevitably delay payments and thus deprive the employee of sustenance at the time of his greatest need. Allen v. Consolidated Aluminum Corp., 688 S.W.2d 64, 1985 Tenn. LEXIS 495 (Tenn. 1985).

11. Federal Courts.

Federal court cannot give the Workers' Compensation Law a construction which conflicts with holdings of the Tennessee supreme court. Anderson v. Royal Indem. Co., 169 F. Supp. 122, 1958 U.S. Dist. LEXIS 3287 (D. Tenn. 1958).

12. Evidence.

Since negligence is not involved in workers' compensation proceedings, evidence of negligence of employer or employer's staff nurse in treating employee in clinic was irrelevant and inadmissible in compensation proceeding to recover for death of employee. Poe v. E. I. Dupont Denemours & Co., 224 Tenn. 683, 462 S.W.2d 480, 1970 Tenn. LEXIS 392 (1970).

Plaintiff introduced insufficient evidence for a jury to have concluded that she was discharged for asserting her rights under the workers' compensation law. Thomason v. Better-Bilt Aluminum Prods., Inc., 831 S.W.2d 291, 1992 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1992).

13. False Statement in Employment Application.

The following factors must be present before a false statement in an employment application will bar benefits: (1) the employee must have knowingly and willfully made a false representation as to his physical condition; (2) the employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring; and (3) there must have been a causal connection between the false representation and the injury. Federal Copper & Aluminum Co. v. Dickey, 493 S.W.2d 463, 1973 Tenn. LEXIS 503 (Tenn. 1973); Liberty Mut. Ins. Co. v. Taylor, 590 S.W.2d 920, 1979 Tenn. LEXIS 523 (Tenn. 1979).

The Workers' Compensation Law contains no explicit provisions relative to making of false statements by an applicant for employment, but an employee who has willfully misrepresented or failed to disclose material information regarding his physical condition should not be permitted recovery merely because the general assembly failed to anticipate the problem. Federal Copper & Aluminum Co. v. Dickey, 493 S.W.2d 463, 1973 Tenn. LEXIS 503 (Tenn. 1973).

14. Working Conditions.

Any recourse against employer for failure to furnish employee a safe place to work or to protect employee from third party assaults on parking lot was under Workers' Compensation Act. Thomas v. General Electric Co., 494 S.W.2d 493, 1973 Tenn. LEXIS 410 (Tenn. 1973).

15. Indemnity of Third-Party Tortfeasor by Employer.

An employer who has paid an injured employee benefits under the Workers' Compensation Law is not liable for indemnity to a third-party tortfeasor under the Tennessee active-passive negligence doctrine since, in view of § 50-6-108, the employer could share no common tort liability with the third-party tortfeasor. Dawn v. Essex Conveyors, Inc., 498 F.2d 921, 1974 U.S. App. LEXIS 8036 (6th Cir. Tenn. 1974), cert. denied, Process Equipment Engineering Co. v. Tennessee Eastman Co., 419 U.S. 1040, 95 S. Ct. 528, 42 L. Ed. 2d 317, 1974 U.S. LEXIS 3534 (1974).

16. Medical Experts.

Absolute certainty on the part of a medical expert is not necessary to support a workers' compensation award. Stratton-Warren Hardware v. Parker, 557 S.W.2d 494, 1977 Tenn. LEXIS 674 (Tenn. 1977).

17. Common Law Tort Rights.

A worker's common law right to bring a personal tort action against a person other than his employer was neither extinguished nor created by the Tennessee workers' compensation statute. Hodge v. Southern Ry., App. D.C., 415 A.2d 543, 1980 D.C. App. LEXIS 300 (1980).

18. Retaliatory Discharge.

The retaliatory discharge cause of action is intended to prevent employers from relieving themselves of their obligations under the workers' compensation laws. Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 1992 Tenn. App. LEXIS 403 (Tenn. Ct. App. 1992).

Tennessee courts do, in fact, have the equitable remedy of reinstatement available to them when an employee is discharged for seeking workers' compensation benefits. Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 1992 Tenn. App. LEXIS 403 (Tenn. Ct. App. 1992).

Employee did not allege that he was terminated because of his own exercise of a statutory or constitutional right, and he was not an injured employee attempting to exercise his right to see benefits under the Workers' Compensation Act as a result of a work-related accident; his insistence that his termination violated the clear public policy of the Act was at best a conclusory allegation and his allegations were insufficient to state a cause of action for common law retaliatory discharge. Patrick v. Nelson Global Prods., — S.W.3d —, 2014 Tenn. App. LEXIS 441 (Tenn. Ct. App. July 30, 2014).

19. Black Lung Benefits Act.

The Tennessee Workers' Compensation Law, T.C.A. § 50-6-101 et seq., incorporated by reference both the presumptions and standards created by the Black Lung Benefits Act of 1972 (30 U.S.C. §§ 901, 902, 921-925, 931-941 and 951) and the regulations used to determine eligibility for black lung disability payments. Solomon v. Old Republic Ins. Co., 664 S.W.2d 70, 1984 Tenn. LEXIS 726 (Tenn. 1984).

20. Punitive Damages.

Punitive damages are not recoverable in workers' compensation cases. Anderson v. Dean Truck Line, Inc., 682 S.W.2d 900, 1984 Tenn. LEXIS 897 (Tenn. 1984), superseded by statute as stated in, Arnold v. Travelers Ins. Co., — S.W.2d —, 1990 Tenn. LEXIS 440 (Tenn. Nov. 26, 1990).

21. Frivolous Appeals.

A factual or legal dispute will preclude an award of damages for frivolous appeals. Anderson v. Dean Truck Line, Inc., 682 S.W.2d 900, 1984 Tenn. LEXIS 897 (Tenn. 1984), superseded by statute as stated in, Arnold v. Travelers Ins. Co., — S.W.2d —, 1990 Tenn. LEXIS 440 (Tenn. Nov. 26, 1990).

22. Federal Employers' Liability Act.

An employee of a railroad engaged in interstate commerce would not be covered by this chapter if the federal courts' interpretation of the federal Employers' Liability Act (45 U.S.C. § 51 et seq.) would bring the employee within the coverage of that act. Petty v. Tennken R., Inc., 722 S.W.2d 386, 1986 Tenn. LEXIS 851 (Tenn. 1986).

23. Exhaustion of Remedies.

Although the Tennessee Workers'  Compensation Act, T.C.A. § 50-6-101 et seq., was a remedial statute and was to be equitably construed under T.C.A. § 50-6-116, an employee's administrative remedies were not effectively exhausted for T.C.A. §§ 50-6-203(a) and 50-6-225(a)(1) purposes by the Tennessee Department of Labor's long period of inaction on the employee's request for assistance under T.C.A. § 50-6-238. Chapman v. Davita, Inc., 380 S.W.3d 710, 2012 Tenn. LEXIS 643 (Tenn. Sept. 21, 2012).

Collateral References.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden stimuli involving nonpersonnel action — compensability under particular circumstances. 84 A.L.R.5th 249.

50-6-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Administrator” means the chief administrative officer of the bureau of workers' compensation of the department of labor and workforce development;
  2. “AMA guides”  means the 6th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, American Medical Association, until a new edition is designated by the general assembly in accordance with § 50-6-204(k)(2)(A). The edition that is in effect on the date the employee is injured is the edition that shall be applicable to the claim;
    1. “Average weekly wages” means the earnings of the injured employee in the employment in which the injured employee was working at the time of the injury during the period of fifty-two (52) weeks immediately preceding the date of the injury divided by fifty-two (52); but if the injured employee lost more than seven (7) days during the period when the injured employee did not work, although not in the same week, then the earnings for the remainder of the fifty-two (52) weeks shall be divided by the number of weeks remaining after the time so lost has been deducted;
    2. Where the employment prior to the injury extended over a period of less than fifty-two (52) weeks, the method of dividing the earnings during that period by the number of weeks and parts of weeks during which the employee earned wages shall be followed; provided, that results just and fair to both parties will be obtained;
    3. Where, by reason of the shortness of the time during which the employee has been in the employment of the employer, it is impracticable to compute the average weekly wages as defined in this subdivision (3), regard shall be had to the average weekly amount that, during the first fifty-two (52) weeks prior to the injury or death, was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no such person so employed, by a person in the same grade employed in the same class of employment in the same district;
    4. Wherever allowances of any character made to any employee in lieu of wages are specified as part of the wage contract, they shall be deemed a part of the employee's earnings;
  3. [Deleted by 2013 amendment, effective July 1, 2014.]
  4. “Bureau” or “bureau of workers' compensation” means the bureau of workers' compensation of the department of labor and workforce development;
  5. “Case management” means medical case management or the ongoing coordination of medical care services provided to an injured or disabled employee on all cases where medical care expenses are expected to exceed a threshold;
  6. “Commissioner” means the commissioner of labor and workforce development;
  7. “Construction design professional” means:
    1. Any person possessing a valid registration or license entitling that person to practice the technical profession of architecture, engineering, landscape architecture or land surveying in this state;
    2. Any corporation, partnership, firm or other legal entity authorized by law to engage in the technical profession of architecture, engineering, landscape architecture or land surveying in this state; or
    3. Any person, firm or corporation providing interior space planning or design in this state;
  8. “Court of workers' compensation claims” means the adjudicative function within the bureau of workers' compensation;
  9. “Department” means the department of labor and workforce development;
  10. [Deleted by 2015 amendment, effective May 4, 2015.]
    1. “Employee” includes every person, including a minor, whether lawfully or unlawfully employed, the president, any vice president, secretary, treasurer or other executive officer of a corporate employer without regard to the nature of the duties of the corporate officials, in the service of an employer, as employer is defined in subdivision (13), under any contract of hire or apprenticeship, written or implied. Any reference in this chapter to an employee who has been injured shall, where the employee is dead, also include the employee's legal representatives, dependents and other persons to whom compensation may be payable under this chapter;
    2. “Employee” includes a sole proprietor, a partner, or a member of a limited liability company who devotes full time to the proprietorship, partnership, or limited liability company, respectively, and who elects to be included in the definition of “employee” by filing written notice of the election on a form prescribed by the bureau with the insurer or, if there is no insurer, with the partnership, proprietorship, or limited liability company at least thirty (30) days before the occurrence of any injury or death. Such a proprietor, partner, or member may at any time withdraw the election by giving notice of the withdrawal to the insurer or, if there is no insurer, with the partnership, proprietorship, or limited liability company. Such a partner, proprietor, or limited liability company may at any time revoke the election for the term of the policy by giving notice in the same manner. Notification given pursuant to this subdivision (12)(B) does not become effective until it is filed with the proper entity;
    3. The provisions of this subdivision (12) allowing a sole proprietor or a partner to elect to come under this chapter shall not be construed to deny coverage of the sole proprietor or partner under any individual or group accident and sickness policy the sole proprietor or partner may have in effect, in cases where the sole proprietor or partner has elected not to be covered by this chapter, for injuries sustained by the sole proprietor or partner that would have been covered by this chapter had the election been made, notwithstanding any provision of the accident and sickness policy to the contrary. Nothing in this section shall require coverage of occupational injuries or sicknesses, if occupational injuries or sicknesses are not covered under the terms of the policy without reference to eligibility for workers' compensation benefits;
      1. In a work relationship, in order to determine whether an individual is an “employee,” or whether an individual is a “subcontractor” or an “independent contractor,” the following factors shall be considered:
  1. The right to control the conduct of the work;
  2. The right of termination;
  3. The method of payment;
  4. The freedom to select and hire helpers;
  5. The furnishing of tools and equipment;
  6. Self-scheduling of working hours; and
  7. The freedom to offer services to other entities; and

A premium shall not be charged by an insurance company for any individual determined to be an independent contractor pursuant to this subdivision (12)(D);

“Employee” does not include a construction services provider, as defined in § 50-6-901, if the construction services provider is:

Listed on the registry established pursuant to part 9 of this chapter as having a workers' compensation exemption and is working in the service of the business entity through which the provider obtained such an exemption;

Not covered under a policy of workers' compensation insurance maintained by the person or entity for whom the provider is providing services; and

Rendering services on a construction project that:

Is not a commercial construction project, as defined in § 50-6-901; or

Is a commercial construction project, as defined in § 50-6-901, and the general contractor for whom the construction services provider renders construction services complies with § 50-6-914(b)(2);

“Employer” includes any individual, firm, association or corporation, the receiver or trustee of the individual, firm, association or corporation, or the legal representative of a deceased employer, using the services of not less than five (5) persons for pay,  except as provided in § 50-6-902, and, in the case of an employer engaged in the mining and production of coal, one (1) employee for pay. If the employer is insured, it shall include the employer's insurer, unless otherwise provided in this chapter;

“Injury” and “personal injury” mean an injury by accident, a mental injury, occupational disease including diseases of the heart, lung and hypertension, or cumulative trauma conditions including hearing loss, carpal tunnel syndrome or any other repetitive motion conditions, arising primarily out of and in the course and scope of employment, that causes death, disablement or the need for medical treatment of the employee; provided, that:

An injury is “accidental” only if the injury is caused by a specific incident, or set of incidents, arising primarily out of and in the course and scope of employment, and is identifiable by time and place of occurrence, and shall not include the aggravation of a preexisting disease, condition or ailment unless it can be shown to a reasonable degree of medical certainty that the aggravation arose primarily out of and in the course and scope of employment;

An injury “arises primarily out of and in the course and scope of employment” only if it has been shown by a preponderance of the evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes;

An injury causes death, disablement or the need for medical treatment only if it has been shown to a reasonable degree of medical certainty that it contributed more than fifty percent (50%) in causing the death, disablement or need for medical treatment, considering all causes;

“Shown to a reasonable degree of medical certainty” means that, in the opinion of the physician, it is more likely than not considering all causes, as opposed to speculation or possibility;

The opinion of the treating physician, selected by the employee from the employer's designated panel of physicians pursuant to § 50-6-204(a)(3), shall be presumed correct on the issue of causation but this presumption shall be rebuttable by a preponderance of the evidence;

(A)  “Maximum total benefit” means the sum of all weekly benefits to which a worker may be entitled;

For injuries occurring on or after July 1, 1992, but before July 1, 2009, the maximum total benefit shall be four hundred (400) weeks times the maximum weekly benefit, except in instances of permanent total disability;

For injuries occurring on or after July 1, 2009, but before July 1, 2014, the maximum total benefit shall be four hundred (400) weeks times one hundred percent (100%) of the state's average weekly wage, as determined pursuant to subdivision (16)(B), except in instances of permanent total disability. Temporary total disability benefits paid to the injured worker shall not be included in calculating the maximum total benefit;

For injuries occurring on or after July 1, 2014, the maximum total benefit shall be four hundred fifty (450) weeks times one hundred percent (100%) of the state's average weekly wage, as determined pursuant to subdivision (16)(B), except in instances of permanent total disability. Temporary total disability benefits paid to the injured worker before the employee attains maximum medical improvement shall not be included in calculating the maximum total benefit;

(A)  (i)  “Maximum weekly benefit” means the maximum compensation payable to the worker per week;

For injuries occurring between July 1, 1990, and June 30, 1991, the maximum weekly benefit shall be two hundred seventy-three dollars ($273) per week;

For injuries occurring on or after July 1, 1991, and before August 1, 1992, the maximum weekly benefit shall be two hundred ninety-four dollars ($294) per week;

For injuries occurring on or after August 1, 1992, and through June 30, 1993, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to seventy-eight percent (78%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1993, and through June 30, 1994, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to eighty-two and four-tenths percent (82.4%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1994, and through June 30, 1995, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to eighty-six and eight-tenths percent (86.8%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1995, and through June 30, 1996, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to ninety-one and two-tenths percent (91.2%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1996, and through June 30, 1997, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to ninety-five and six-tenths percent (95.6%) of the state's average weekly wage as determined by the department;

For injuries occurring on or after July 1, 1997, and through June 30, 2004, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred percent (100%) of the state's average weekly wage as determined by the department;

For injuries occurring on or after July 1, 2004, the maximum weekly benefit for permanent disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred percent (100%) of the state's average weekly wage, as determined by the department; and

(a)  For injuries occurring on or after July 1, 2004, through June 30, 2005, the maximum weekly benefit for temporary disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred five percent (105%) of the state's average weekly wage, as determined by the department; and

For injuries occurring on or after July 1, 2005, the maximum weekly benefit for temporary disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred ten percent (110%) of the state's average weekly wage, as determined by the department;

As used in subdivision (15), the state average weekly wage shall be determined as of the preceding January 1, and shall be adjusted annually using the data from the bureau and shall be effective on July 1 of each year;

“Mental injury” means a loss of mental faculties or a mental or behavioral disorder, arising primarily out of a compensable physical injury or an identifiable work related event resulting in a sudden or unusual stimulus, and shall not include a psychological or psychiatric response due to the loss of employment or employment opportunities;

“Minimum weekly benefit” means the minimum compensation per week payable to the worker, which shall be fifteen percent (15%) of the state's average weekly wage, as determined by the department;

“Specialty practice group” means a group of Tennessee licensed physicians, surgeons, or chiropractors providing medical care services of the same or similar medical specialty as each other and operating out of the same physical location; and

“Utilization review” means evaluation of the necessity, appropriateness, efficiency and quality of medical care services, including the prescribing of one (1) or more Schedule II, III, or IV controlled substances for pain management for a period of time exceeding ninety (90) days from the initial prescription of such controlled substances, provided to an injured or disabled employee based on medically accepted standards and an objective evaluation of those services provided; provided, that “utilization review” does not include the establishment of approved payment levels, a review of medical charges or fees, or an initial evaluation of an injured or disabled employee by a physician specializing in pain management.

[Deleted by 2013 amendment, effective July 1, 2014.]

Acts 1919, ch. 123, § 2; 1923, ch. 84, § 2; Shan. Supp., § 3608a138; Code 1932, § 6852; Acts 1941, ch. 90, § 1; 1947, ch. 139, § 1; C. Supp. 1950, § 6852; Acts 1961, ch. 184, § 1; 1963, ch. 362, § 2; 1971, ch. 300, § 1; 1977, ch. 339, § 1; 1978, ch. 499, § 1; 1978, ch. 687, § 1; impl. am. Acts 1980, ch. 534, §§ 1, 3; Acts 1981, ch. 239, § 1; T.C.A. (orig. ed.), § 50-902; Acts 1985, ch. 393, § 1; 1988, ch. 923, § 1; 1990, ch. 990, § 1; 1991, ch. 225, § 1; 1992, ch. 900, §§ 2, 19, 20, 28; 1997, ch. 330, § 1; 1999, ch. 520, § 41; 2002, ch. 833, §§ 4, 5; 2004, ch. 962, §§ 22, 23, 32; 2008, ch. 1025, § 1; 2009, ch. 599, §§ 1-3; 2010, ch. 1149, §§ 3, 14; 2011, ch. 416, § 8; 2011, ch. 422, § 1; 2012, ch. 1100, § 1; 2013, ch. 282, § 2; 2013, ch. 289, §§ 4-9; 2014, ch. 903, § 1; 2015, ch. 188, § 3; 2015, ch. 341, §§ 14, 15, 18; 2016, ch. 816, § 1; 2017, ch. 344, § 2.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added subdivision (E) in the definition of “employee”. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2011, ch. 416, § 10 provided that §§ 3-9 of the act, which amended §§ 50-6-102(12), 50-6-204(a)(1) and (2), 50-6-206(a)(2) and (b)  and 50-6-301, shall apply to injuries occurring on or after June 6, 2011.

Acts 2011, ch. 422, § 13 provided that if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to the act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

Acts 2012, ch. 1100, § 5 provided that the act, which amended the definition of “utilization review”, shall apply to pain management, including the prescription of Schedule II, III, or IV controlled substances, prescribed on or after July 1, 2012.

Acts 2013, ch. 289, § 103 provided that the act, which amended the definitions of “AMA guides”, “injury”, “maximum total benefit”, “mental injury” and “minimum weekly benefit”, deleted the definition of “workers' compensation specialist”, and added the definition of “court of workers' compensation claims”, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, deleted the definition of “Benefit review conference” which read: “ ‘Benefit review conference’ means a nonadversarial, informal dispute resolution proceeding to mediate and resolve workers' compensation disputes as provided in this chapter;”.

The 2013 amendment by ch. 289, effective July 1, 2014, substituted “§ 50-6-204(k)(1)(A)” for “§ 50-6-204(d)(3)(C)” in the definition of “AMA guides”; rewrote the definition of “injury” which read: “ ‘Injury’ and ‘personal injury’:“(A) Mean an injury by accident, arising out of and in the course of employment, that causes either disablement or death of the employee; provided, that:“(i) An injury is ‘accidental’ only if the injury is caused by a specific incident, or set of incidents, arising out of and in the course of employment, and is identifiable by time and place of occurrence; and “(ii) The opinion of the physician, selected by the employee from the employer's designated panel of physicians pursuant to  §§ 50-6-204(a)(4)(A) or (a)(4)(B), shall be presumed correct on the issue of causation but said presumption shall be rebutted by a preponderance of the evidence;“(B) Include a mental injury arising out of and in the course of employment; and“(C) Do not include:“(i) A disease in any form, except when the disease arises out of and in the course and scope of employment; or“(ii) Cumulative trauma conditions, hearing loss, carpal tunnel syndrome, or any other repetitive motion conditions unless such conditions arose primarily out of and in the course and scope of employment;”; rewrote the definition of “maximum total benefit” which read: “ ‘Maximum total benefit’ means the sum of all weekly benefits to which a worker may be entitled; “(A) For injuries occurring between July 1, 1990, and June 30, 1991, the maximum total benefit shall be one hundred nine thousand two hundred dollars ($109,200);“(B) For injuries occurring on or after July 1, 1991, and before August 1, 1992, the maximum total benefit shall be one hundred seventeen thousand six hundred dollars ($117,600);“(C) For injuries occurring on or after July 1, 1992, the maximum total benefit shall be four hundred (400) weeks times the maximum weekly benefit except in instances of permanent total disability; and “(D) For injuries occurring on or after July 1, 2009, the maximum total benefit shall be four hundred (400) times one hundred percent (100%) of the state's average weekly wage, as determined pursuant to subdivision (14)(B), except in instances of permanent total disability. Temporary total disability benefits paid to the injured worker shall not be included in calculating the maximum total benefit;”; rewrote the definition of “ minimum weekly benefit” which read: “ ‘Minimum weekly benefit’ means the minimum compensation per week payable to the worker;“(A) For injuries occurring between July 1, 1985, and June 30, 1986, the minimum weekly benefit shall be twenty dollars ($20.00) per week;“(B) For injuries occurring between July 1, 1986, and June 30, 1987, the minimum weekly benefit shall be twenty-five dollars ($25.00) per week;“(C) For injuries occurring between July 1, 1987, and June 30, 1988, the minimum weekly benefit shall be thirty dollars ($30.00) per week;“(D) For injuries occurring on or after July 1, 1988, and before July 1, 1993, the minimum weekly benefit shall be thirty-five dollars ($35.00) per week; and“(E) For injuries occurring on or after July 1, 1993, the minimum weekly benefit shall be fifteen percent (15%) of the state's average weekly wage, as determined by the department;”; rewrote the definition of “mental injury” which read: “ ‘Mental injury’ means a loss of mental faculties or a mental or behavioral disorder where the proximate cause is a compensable physical injury resulting in a permanent disability, or an identifiable work-related event resulting in a sudden or unusual mental stimulus. A mental injury shall not include a psychological or psychiatric response due to the loss of employment or employment opportunities;”; and deleted the definition of “workers' compensation specialist” or “specialist” which read: “ ‘Workers' compensation specialist’ or ‘specialist’ means a department employee who provides information and communication services regarding workers' compensation for employees and employers, and who conducts benefit review conferences and performs other duties as provided in this chapter.”; and added the definition of “court of workers' compensation claims”.

The 2014 amendment added the definition of “specialty practice group”.

The 2015 amendment by ch. 188, in the definition of “employee”, made stylistic changes throughout (D) and added “A premium shall not be charged by an insurance company for any individual determined to be an independent contractor pursuant to this subdivision (12)(D)”.

The 2015 amendment by ch. 341, effective May 4, 2015, deleted the definition of “Division” or “division of workers' compensation” which read: “Division” or “division of workers' compensation” means the division of workers' compensation of the department of labor and workforce development;”; substituted “bureau” for “division” throughout the section; and added the definition of “Bureau” or “bureau of workers' compensation”.

The 2016 amendment substituted “a sole proprietor, a partner, or a member of a limited liability company who devotes full time to the proprietorship, partnership, or limited liability company, respectively,” for “a sole proprietor or a partner who devotes full time to the proprietorship or partnership” in (B) of the definition of “employee”.

The 2017 amendment in (B) in the definition of “Employee”, inserted “who” preceding “elects”, inserted “on a form prescribed by the bureau” substituted “insurer or, if there is no insurer, with the partnership, proprietorship, or limited liability company” for “bureau” near the end and substituted a period for “, and” at the end of the first sentence, in the second sentence, added “Such a proprietor, partner, or member”  at the beginning and substituted “insurer or, if there is no insurer, with the partnership, proprietorship, or limited liability company.” for “bureau” at the end, and added the third sentence.

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2014, ch. 903, § 14. July 1, 2014.

Acts 2015, ch. 188, § 4. April 22, 2015.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2016, ch. 816, § 11. April 14, 2016.

Acts 2017, ch. 344, § 12. May 9, 2017.

Attorney General Opinions. A member of the Underground Storage Tanks and Solid Waste Disposal Control Board is a state official.  While state officials are treated as “state employees” for some purposes, state officials are not treated as “state employees” for the purpose of procuring a public contract.  If a contractor has an employee or subcontractor who serves as a member of the Underground Storage Tanks and Solid Waste Disposal Control Board, the contractor may respond to a request for proposal or a request for qualifications to provide services under a contract with a state agency whose services are not overseen by the Board when the Board member does not have a duty “to vote for, let out, overlook, or in any manner superintend any work or any contract” in which the state agency is interested.  The contractor may not contract with a state agency if the Board member has a duty “to vote for, let out, overlook, or in any manner superintend any work or any contract” in which the state agency is interested and the Board member is “directly interested” in the contract).  The only exception is the “sole supplier” provision.  If the Board member is “directly interested” in the contract but is the sole supplier of the services in a municipality or county, the Board member is treated as being only “indirectly interested” in the contract.  In that instance, for the contract to be valid, the Board member must publically acknowledge his or her interest. OAG 18-20, 2018 Tenn. AG LEXIS 19 (4/23/2018).

Workers' Compensation Appeals Board Decisions. An employee was hired as a seasonal worker at the employer's distribution center. During the recruiting process, the employee was informed that transportation to and from the distribution center would be available through a third party, but a fee would be charged for this service. During a ride from the distribution center to her hometown, the bus on which the employee was riding caught fire and, while evacuating the bus, the employee was allegedly injured. She sought medical and temporary disability benefits at an expedited hearing. The Workers' Compensation Appeals Board held that the employee did not come forward with sufficient evidence at the expedited hearing to show she would likely prevail at trial in proving the case falls within an exception to the general rule of non-compensability in “coming and going” cases. Smith v. Macy’s Corporate Services, 2019 TN Wrk Comp App Bd LEXIS 2.

It was undisputed that the employer did not provide transportation or reimburse transportation costs for its seasonal employees. Moreover, the employee was not "on the clock" at the time of the injury, but was returning home after her shift was over. In addition, the trip between her home and the employer's facility was not a substantial part of the service for which the employee was employed and compensated. Furthermore, the employer did not require the employee to use the bus but merely facilitated the use of that service to its seasonal workers as a convenience. Smith v. Macy’s Corporate Services, 2019 TN Wrk Comp App Bd LEXIS 2.

The trial court’s expedited hearing order determining the employee presented sufficient proof that she is likely to succeed at trial and ordering the employer to authorize the revision surgery to the employee’s pre-existing knee replacement was affirmed, where there was no basis in this record to determine that the trial court erred in accepting the causation opinion of the authorized treating physician  over that of the employer's medical expert. Foster v. Andy Frain Services, Inc., 2019 TN Wrk Comp App Bd LEXIS 10.

An employee, a mental health aid employed in a residential group home for teens, alleged suffering  injuries as a result of physical altercations occurring in the group home. The employer did not dispute the occurrence of the incidents and acknowledged that the employee reported suffering headaches  as a result, but denied that the employee's need for recommended  psychiatric treatment arose primarily out of and in the course and scope of her employment. Based upon the authorized physician's referral of the employee to specialists for additional treatment and his taking the employee out of work until she is seen by such specialists, the Workers Compensation Appeal Board concluded the evidence supported the trial court's determination that the employee is entitled to the medical benefits and temporary disability benefits ordered by the trial court. Gautreaux v. Hermitage Hall, 2019 TN Wrk Comp App Bd LEXIS 12.

The employee, a supervisor at a grain processing facility, suffered a heart attack and died while at work. The employee's surviving spouse brought a claim for death benefits, asserting the employee's heart attack  was due to work-related  physical exertion, environmental  exposures, and mental stress. However, she could not prevail on her contention that physical exertion caused the employee's heart attack because there was no evidence he performed any physical labor on the day of his heart attack. Additionally, the mental stress alleged by the surviving spouse, namely pressure to learn the new computer program, was the type of ordinary stress associated with the employee's job and was therefore not compensable.  Further, the medical experts' testimony on dust inhalation's connection to heart attacks was inconclusive and the lay witness testimony on the level of dust at the employer's facility was similarly equivocal.  The medical proof viewed as a whole fell short of that required to establish a compensable injury. Mitchell v. Bunge North America, 2019 TN Wrk Comp App Bd LEXIS 15.

NOTES TO DECISIONS

1. Evidence Sufficiency.

Claimant failed to produce sufficient evidence to show that his left-foot condition arose primarily out of and in the course and scope of his employment, where the claimant submitted no medical evidence showing that it was more likely than not that his employment contributed more than 50 percent to his injury. The treating physician's statement that the claimant's workplace accident was at least part of the cause of his foot problems did not establish by a preponderance of the evidence that the claimant's employment contributed more than 50 percent in causing the injury. Payne v. D & D Elec., — S.W.3d —, 2017 Tenn. LEXIS 215 (Tenn. Apr. 18, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 213 (Tenn. Apr. 18, 2017).

Treating physician's opinion that a claimant's injury was not work-related was entitled to a presumption of correctness, and the claimant did not present sufficient medical evidence to overcome the presumption. Thysavathdy v. Bridgestone Ams. Tire Operations, — S.W.3d —, 2018 Tenn. LEXIS 313 (Tenn. June 8, 2018).

2. Causation.

Workers'  Compensation Appeals Board properly reversed the trial court's order which found that the employee's injury was compensable because, in applying the correct standard to the employee's injury that occurred after July 1, 2014, the evidence preponderated against the trial court's finding that the employment of the employee contributed more than 50% in causing his patellar dislocation as the employee's doctor was unable to state with any reasonable degree of medical certainty that dragging heavy rolls of material at work contributed to the employee's injury in any way; and the doctor stated that the employee had patella alta, a condition that predisposed him to patellar dislocations. Willis v. All Staff, — S.W.3d —, 2017 Tenn. LEXIS 455 (Tenn. Aug. 3, 2017).

It was proper to deny an employee's claim for workers'  compensation because the evidence did not preponderate against the trial court's finding that the employee failed to sustain his burden of proof that his injury arose primarily out of his employment; a doctor did not testify within a reasonable degree of medical certainty, either directly or indirectly, that the employee's work activity more likely than not contributed more than fifty percent in causing the injury. Panzarella v. Amazon.Com, Inc., — S.W.3d —, 2018 Tenn. LEXIS 244 (Tenn. May 16, 2018).

Injury that is caused by an employer's failure to provide reasonable medical assistance arises out of and in the course of employment when an employee becomes helpless at work because of illness or other cause unrelated to her employment, the employee needs medical assistance to prevent further injury, the employer knows of the employee's helplessness, and the employer can provide reasonable medical assistance but does not do so. Chaney v. Team Techs., Inc., — S.W.3d —, 2019 Tenn. LEXIS 20 (Tenn. Jan. 31, 2019).

3. Failure to Show Compensable Accident.

Employee's October 2008 shoulder and neck injuries were not compensable because the first doctor testified that the January 2009 MRI of the employee's shoulder showed degenerative changes that had existed for quite some time, and that the cysts appearing in the MRI were evidence of a chronic condition and could not have formed since October 2008; and the second doctor testified that he consulted with a radiologist who interpreted both the employee's 2003 spinal images and his 2012 spinal images and, based on the comparison of those images, the second doctor opined that the employee had only slight progression of his spondylosis over that time and there was no anatomical change due to an acute injury that occurred between 2003 and 2012. T & B Trucking v. Pigue, — S.W.3d —, 2017 Tenn. LEXIS 788 (Tenn. Dec. 14, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 789 (Tenn. Dec. 14, 2017).

4. Independent Contractor's Employee.

Material evidence supported the jury's determination that a worker was the employee of a non-party independent contractor, rather than the property owner, where the contractor had been hired by the owner to construct a house and had the right to control the conduct of the work, the right to schedule working hours, the freedom to select and hire helpers, and the right of termination. Helton v. Lawson, — S.W.3d —, 2019 Tenn. App. LEXIS 613 (Tenn. Ct. App. Dec. 18, 2019).

50-6-102. Chapter definitions. [Applicable to injuries occurring prior to July 1, 2014.]

As used in this chapter, unless the context otherwise requires:

  1. “Administrator” means the chief administrative officer of the division of workers' compensation of the department of labor and workforce development;
  2. “AMA guides”  means the 6th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, American Medical Association, until a new edition is designated by the general assembly in accordance with § 50-6-204(d)(3)(C). The edition that is in effect on the date the employee is injured is the edition that shall be applicable to the claim;
    1. “Average weekly wages” means the earnings of the injured employee in the employment in which the injured employee was working at the time of the injury during the period of fifty-two (52) weeks immediately preceding the date of the injury divided by fifty-two (52); but if the injured employee lost more than seven (7) days during the period when the injured employee did not work, although not in the same week, then the earnings for the remainder of the fifty-two (52) weeks shall be divided by the number of weeks remaining after the time so lost has been deducted;
    2. Where the employment prior to the injury extended over a period of less than fifty-two (52) weeks, the method of dividing the earnings during that period by the number of weeks and parts of weeks during which the employee earned wages shall be followed; provided, that results just and fair to both parties will be obtained;
    3. Where, by reason of the shortness of the time during which the employee has been in the employment of the employer, it is impracticable to compute the average weekly wages as defined in this subdivision (3), regard shall be had to the average weekly amount that, during the first fifty-two (52) weeks prior to the injury or death, was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no such person so employed, by a person in the same grade employed in the same class of employment in the same district;
    4. Wherever allowances of any character made to any employee in lieu of wages are specified as part of the wage contract, they shall be deemed a part of the employee's earnings;
  3. “Benefit review conference” means a nonadversarial, informal dispute resolution proceeding to mediate and resolve workers' compensation disputes as provided in this chapter;
  4. “Case management” means medical case management or the ongoing coordination of medical care services provided to an injured or disabled employee on all cases where medical care expenses are expected to exceed a threshold;
  5. “Commissioner” means the commissioner of labor and workforce development;
  6. “Construction design professional” means:
    1. Any person possessing a valid registration or license entitling that person to practice the technical profession of architecture, engineering, landscape architecture or land surveying in this state;
    2. Any corporation, partnership, firm or other legal entity authorized by law to engage in the technical profession of architecture, engineering, landscape architecture or land surveying in this state; or
    3. Any person, firm or corporation providing interior space planning or design in this state;
  7. “Department” means the department of labor and workforce development;
  8. “Division” or “division of workers' compensation” means the division of workers' compensation of the department of labor and workforce development;
    1. “Employee” includes every person, including a minor, whether lawfully or unlawfully employed, the president, any vice president, secretary, treasurer or other executive officer of a corporate employer without regard to the nature of the duties of the corporate officials, in the service of an employer, as employer is defined in subdivision (11), under any contract of hire or apprenticeship, written or implied. Any reference in this chapter to an employee who has been injured shall, where the employee is dead, also include the employee's legal representatives, dependents and other persons to whom compensation may be payable under this chapter;
    2. “Employee” includes a sole proprietor or a partner who devotes full time to the proprietorship or partnership and elects to be included in the definition of employee by filing written notice of the election with the division at least thirty (30) days before the occurrence of any injury or death, and may at any time withdraw the election by giving notice of the withdrawal to the division;
    3. The provisions of this subdivision (10), allowing a sole proprietor or a partner to elect to come under this chapter, shall not be construed to deny coverage of the sole proprietor or partner under any individual or group accident and sickness policy the sole proprietor or partner may have in effect, in cases where the sole proprietor or partner has elected not to be covered by this chapter, for injuries sustained by the sole proprietor or partner that would have been covered by this chapter had the election been made, notwithstanding any provision of the accident and sickness policy to the contrary. Nothing in this section shall require coverage of occupational injuries or sicknesses, if occupational injuries or sicknesses are not covered under the terms of the policy without reference to eligibility for workers' compensation benefits;
    4. In a work relationship, in order to determine whether an individual is an “employee,” or whether an individual is a “subcontractor” or an “independent contractor,” the following factors shall be considered:
      1. The right to control the conduct of the work;
      2. The right of termination;
      3. The method of payment;
      4. The freedom to select and hire helpers;
      5. The furnishing of tools and equipment;
      6. Self-scheduling of working hours; and
      7. The freedom to offer services to other entities;
    5. “Employee” does not include a construction services provider, as defined in § 50-6-901, if the construction services provider is:
      1. Listed on the registry established pursuant to part 9 of this chapter as having a workers' compensation exemption and is working in the service of the business entity through which the provider obtained such an exemption;
      2. Not covered under a policy of workers' compensation insurance maintained by the person or entity for whom the provider is providing services; and
      3. Rendering services on a construction project that:
  1. Is not a commercial construction project, as defined in § 50-6-901; or
  2. Is a commercial construction project, as defined in § 50-6-901, and the general contractor for whom the construction services provider renders construction services complies with § 50-6-914(b)(2);

“Employer” includes any individual, firm, association or corporation, the receiver or trustee of the individual, firm, association or corporation, or the legal representative of a deceased employer, using the services of not less than five (5) persons for pay,  except as provided in § 50-6-902, and, in the case of an employer engaged in the mining and production of coal, one (1) employee for pay. If the employer is insured, it shall include the employer's insurer, unless otherwise provided in this chapter;

“Injury” and “personal injury”:

Mean an injury by accident, arising out of and in the course of employment, that causes either disablement or death of the employee; provided, that:

An injury is “accidental” only if the injury is caused by a specific incident, or set of incidents, arising out of and in the course of employment, and is identifiable by time and place of occurrence; and

The opinion of the physician, selected by the employee from the employer's designated panel of physicians pursuant to §§ 50-6-204(a)(4)(A) or (a)(4)(B), shall be presumed correct on the issue of causation but said presumption shall be rebutted by a preponderance of the evidence;

Include a mental injury arising out of and in the course of employment; and

Do not include:

A disease in any form, except when the disease arises out of and in the course and scope of employment; or

Cumulative trauma conditions, hearing loss, carpal tunnel syndrome, or any other repetitive motion conditions unless such conditions arose primarily out of and in the course and scope of employment;

(A)  “Maximum total benefit” means the sum of all weekly benefits to which a worker may be entitled;

For injuries occurring between July 1, 1990, and June 30, 1991, the maximum total benefit shall be one hundred nine thousand two hundred dollars ($109,200);

For injuries occurring on or after July 1, 1991, and before August 1, 1992, the maximum total benefit shall be one hundred seventeen thousand six hundred dollars ($117,600);

For injuries occurring on or after July 1, 1992, the maximum total benefit shall be four hundred (400) weeks times the maximum weekly benefit except in instances of permanent total disability; and

For injuries occurring on or after July 1, 2009, the maximum total benefit shall be four hundred (400) times one hundred percent (100%) of the state's average weekly wage, as determined pursuant to subdivision (14)(B), except in instances of permanent total disability. Temporary total disability benefits paid to the injured worker shall not be included in calculating the maximum total benefit;

(A)  (i)  “Maximum weekly benefit” means the maximum compensation payable to the worker per week;

For injuries occurring between July 1, 1990, and June 30, 1991, the maximum weekly benefit shall be two hundred seventy-three dollars ($273) per week;

For injuries occurring on or after July 1, 1991, and before August 1, 1992, the maximum weekly benefit shall be two hundred ninety-four dollars ($294) per week;

For injuries occurring on or after August 1, 1992, and through June 30, 1993, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to seventy-eight percent (78%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1993, and through June 30, 1994, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to eighty-two and four-tenths percent (82.4%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1994, and through June 30, 1995, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to eighty-six and eight-tenths percent (86.8%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1995, and through June 30, 1996, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to ninety-one and two-tenths percent (91.2%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1996, and through June 30, 1997, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to ninety-five and six-tenths percent (95.6%) of the state's average weekly wage as determined by the department;

For injuries occurring on or after July 1, 1997, and through June 30, 2004, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred percent (100%) of the state's average weekly wage as determined by the department;

For injuries occurring on or after July 1, 2004, the maximum weekly benefit for permanent disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred percent (100%) of the state's average weekly wage, as determined by the department; and

(a)  For injuries occurring on or after July 1, 2004, through June 30, 2005, the maximum weekly benefit for temporary disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred five percent (105%) of the state's average weekly wage, as determined by the department; and

For injuries occurring on or after July 1, 2005, the maximum weekly benefit for temporary disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred ten percent (110%) of the state's average weekly wage, as determined by the department;

As used in subdivision (14)(A), the state average weekly wage shall be determined as of the preceding January 1, and shall be adjusted annually using the data from the division and shall be effective on July 1 of each year;

“Mental injury” means a loss of mental faculties or a mental or behavioral disorder where the proximate cause is a compensable physical injury resulting in a permanent disability, or an identifiable work-related event resulting in a sudden or unusual mental stimulus. A mental injury shall not include a psychological or psychiatric response due to the loss of employment or employment opportunities;

(A)  “Minimum weekly benefit” means the minimum compensation per week payable to the worker;

For injuries occurring between July 1, 1985, and June 30, 1986, the minimum weekly benefit shall be twenty dollars ($20.00) per week;

For injuries occurring between July 1, 1986, and June 30, 1987, the minimum weekly benefit shall be twenty-five dollars ($25.00) per week;

For injuries occurring between July 1, 1987, and June 30, 1988, the minimum weekly benefit shall be thirty dollars ($30.00) per week;

For injuries occurring on or after July 1, 1988, and before July 1, 1993, the minimum weekly benefit shall be thirty-five dollars ($35.00) per week; and

For injuries occurring on or after July 1, 1993, the minimum weekly benefit shall be fifteen percent (15%) of the state's average weekly wage, as determined by the department;

“Utilization review” means evaluation of the necessity, appropriateness, efficiency and quality of medical care services, including the prescribing of one (1) or more Schedule II, III, or IV controlled substances for pain management for a period of time exceeding ninety (90) days from the initial prescription of such controlled substances, provided to an injured or disabled employee based on medically accepted standards and an objective evaluation of those services provided; provided, that “utilization review” does not include the establishment of approved payment levels, a review of medical charges or fees, or an initial evaluation of an injured or disabled employee by a physician specializing in pain management; and

“Workers' compensation specialist” or “specialist” means a department employee who provides information and communication services regarding workers' compensation for employees and employers, and who conducts benefit review conferences and performs other duties as provided in this chapter.

Acts 1919, ch. 123, § 2; 1923, ch. 84, § 2; Shan. Supp., § 3608a138; Code 1932, § 6852; Acts 1941, ch. 90, § 1; 1947, ch. 139, § 1; C. Supp. 1950, § 6852; Acts 1961, ch. 184, § 1; 1963, ch. 362, § 2; 1971, ch. 300, § 1; 1977, ch. 339, § 1; 1978, ch. 499, § 1; 1978, ch. 687, § 1; impl. am. Acts 1980, ch. 534, §§ 1, 3; Acts 1981, ch. 239, § 1; T.C.A. (orig. ed.), § 50-902; Acts 1985, ch. 393, § 1; 1988, ch. 923, § 1; 1990, ch. 990, § 1; 1991, ch. 225, § 1; 1992, ch. 900, §§ 2, 19, 20, 28; 1997, ch. 330, § 1; 1999, ch. 520, § 41; 2002, ch. 833, §§ 4, 5; 2004, ch. 962, §§ 22, 23, 32; 2008, ch. 1025, § 1; 2009, ch. 599, §§ 1-3; 2010, ch. 1149, §§ 3, 14; 2011, ch. 416, § 8; 2011, ch. 422, § 1; 2012, ch. 1100, § 1.

Compiler's Notes. Acts 2002, ch. 833, § 6 provided that the amendment by that act shall apply to injuries occurring on or after July 1, 2002.

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added subdivision (E) in the definition of “employee”. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2011, ch. 416, § 10 provided that §§ 3-9 of the act, which amended §§ 50-6-102(12), 50-6-204(a)(1) and (2), 50-6-206(a)(2) and (b)  and 50-6-301, shall apply to injuries occurring on or after June 6, 2011.

Acts 2011, ch. 422, § 13 provided that if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to the act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

Acts 2012, ch. 1100, § 5 provided that the act, which amended the definition of “utilization review”, shall apply to pain management, including the prescription of Schedule II, III, or IV controlled substances, prescribed on or after July 1, 2012.

The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

Cross-References. Community-based screening agency members, medical consultants, ineligibility for benefits, § 8-42-101.

Effect on insurance policies of sole proprietor or partner's election against coverage under Workers' Compensation Law, § 56-26-133.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 529.

Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, §§ 5, 7, 15, 33.

Law Reviews.

A Package of Problems: A Suspicious Package Can Raise More Than Fears of Anthrax. It Could Also Present a Potential Liability for an Employer. (James K. Simms IV), 38 No. 2 Tenn. B.J. 12 (2002).

The Faragher and Ellerth Problem: Lower Courts' Confusion Regarding the Definition of “Supervisor,” 54 Vand. L. Rev. 123 (2001).

What Part of “No” Don't You Understand?: Recent Developments in Workplace Sexual Harassment Law (William D. Evans Jr.), 36 No. 5 Tenn. B.J. 14 (2000).

Workers' Compensation — “Arising Out of Employment” Defined, 48 Tenn. L. Rev. 515 (1981).

Attorney General Opinions. Fringe benefits, such as employer contributions to an employee's pension or retirement savings plan, are not considered earnings for purposes of computing an employee's rate of compensation under the Workers' Compensation Act, OAG 01-037 (3/19/01).

Disaster recovery volunteers sent to a Compact state by the Tennessee Emergency Management Agency are not entitled to Tennessee workers' compensation benefits in the event of death or injury, OAG 04-174 (12/17/04)

NOTES TO DECISIONS

1. Employer.

Sawmill operator employing 12 workers was subject to the Workers' Compensation Law. Shoaf v. Fitzpatrick, 104 F.2d 290, 1939 U.S. App. LEXIS 4129 (6th Cir. Tenn. 1939), cert. denied, 308 U.S. 620, 60 S. Ct. 295, 84 L. Ed. 518, 1939 U.S. LEXIS 29 (Tenn. Dec. 11, 1939).

Husband and wife were engaged in building business where they purchased several old houses for building material from which they constructed several new houses, though first house constructed was a house used as a residence for defendants, and were subject to the Workers' Compensation Act. Brady v. Reed, 186 Tenn. 556, 212 S.W.2d 378, 1948 Tenn. LEXIS 581 (1948).

Defendant who operated sawmill as his regular business was not liable for compensation to employee of coal mine operated in addition to mill where he never employed over four men at any time at the mine. Threet v. Cox, 189 Tenn. 477, 226 S.W.2d 86, 1949 Tenn. LEXIS 451 (1949).

Partnership, which operated coal mine under a lease, but which subleased to another without recording sublease and without securing consent of lessor as provided by lease, paid premiums on insurance policy issued in its name, retained entire output of mine, and carried insurance protection for employees of mine, was the employer of a miner killed in accident at the mine. Douglas v. Sharp, 194 Tenn. 11, 249 S.W.2d 999, 1952 Tenn. LEXIS 346 (1952).

An employer's business may embrace two occupations, both within the Workers' Compensation Law. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

Where the record showed that Illinois employer brought only two employees to Tennessee to help erect towers, hired only two local men, and at no time had more than four employees in Tennessee, employer was not required to qualify under Tennessee Workers' Compensation Law defining “employer,” as those using not less than five persons for pay. Mooney v. Stainless, Inc., 338 F.2d 127, 1964 U.S. App. LEXIS 4741 (6th Cir. Tenn. 1964), cert. denied, 381 U.S. 925, 85 S. Ct. 1561, 14 L. Ed. 2d 684, 1965 U.S. LEXIS 1173 (1965).

Where decedent was an employee of a wholly owned subsidiary of the parent corporation, the parent company is an employer for purposes of workers' compensation only where the two corporations are so completely integrated and commingled that neither party can realistically be viewed as a separate economic entity. Latham v. Technar, Inc., 390 F. Supp. 1031, 1974 U.S. Dist. LEXIS 6079 (E.D. Tenn. 1974).

Where plaintiff was employee of supplier of temporary manpower and was supplied to defendant who requested some temporary day labor, defendant was a coemployer with employment agency at the time of plaintiff's injury and plaintiff was limited to a cause of action under title 50, chapter 6 and precluded from bringing an action in negligence against defendant. Bennett v. Mid-South Terminals Corp., 660 S.W.2d 799, 1983 Tenn. App. LEXIS 627 (Tenn. Ct. App. 1983).

The definition of “employer” under the Workers' Compensation Act, T.C.A. § 50-6-101 et seq., which includes the compensation insurance carrier, also includes the employees of the insurance carrier. Spears v. Morris & Wallace Elevator Co., 684 S.W.2d 620, 1984 Tenn. App. LEXIS 3047 (Tenn. Ct. App. 1984).

Where a Comprehensive Employment Training Act worker is assigned by an agency to a business for job training and supervision, both the agency and the business are the CETA worker's employer under the provisions of the Workers' Compensation Act, T.C.A. § 50-6-101 et seq.Jackson Housing Authority v. Auto-Owners Ins. Co., 686 S.W.2d 917, 1984 Tenn. App. LEXIS 3363 (Tenn. Ct. App. 1984).

Parent corporation and subsidiary were treated as one employer under T.C.A. § 50-6-101 where the subsidiary functioned as the manufacturing and sales distribution agent of the parent corporation. Stigall v. Wickes Machinery, Div. of Wickes Corp., 801 S.W.2d 507, 1990 Tenn. LEXIS 430 (Tenn. 1990).

2. —Basis of Liability.

The basis of liability under the Workers' Compensation Law is the employer-employee relation. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960).

Liability under the statute is based on the existence of an employment relationship and there is no imposition of liability where the alleged employee is either an independent contractor or a casual employee. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Insured was liable to insurers for workers'  compensation premiums for physical therapists with whom the insured contracted under a risk of loss provision in the parties'  insurance contract because: (1) the clause did not only apply when T.C.A. § 50-6-113 might apply; and (2) the insurers had to defend any suit in which a therapist sought workers'  compensation from the insured, even if only to find the therapist's status as an employee or independent contractor, so the insured was liable for premiums for shifting this litigation risk to the insurers. Cont'l Cas. Co. v. Theraco, Inc., 437 S.W.3d 841, 2014 Tenn. App. LEXIS 16 (Tenn. Ct. App. Jan. 14, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 451 (Tenn. May 28, 2014).

3. —Employment of Five Persons.

The five persons referred to need not be regularly engaged in work at the place of the injury, and need not work in the same county to make one an employer under act. The contract of employment and not place of accident governs recovery. Vantrease v. Smith, 143 Tenn. 254, 227 S.W. 1023, 1920 Tenn. LEXIS 15 (1920).

The statute was amended by Acts 1923, ch. 84, § 2, so that its every section applies to employers who employ not less than five persons for pay. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

The burden of proof is on petitioner to show that employer had five or more employees. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927); Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

Workers' compensation coverage attaches on the first day that five or more persons who may be classified as regular employees work for an employer. Ganus v. Asher, 561 S.W.2d 756, 1978 Tenn. LEXIS 580 (Tenn. 1978); Garner v. Reed, 856 S.W.2d 698, 1993 Tenn. LEXIS 196 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 249 (Tenn. June 28, 1993).

Once coverage attaches to an employer of five or more persons it may not be withdrawn solely by the device of reducing the work force to four or fewer regular employees. Ganus v. Asher, 561 S.W.2d 756, 1978 Tenn. LEXIS 580 (Tenn. 1978).

The five-employee limitation for workers' compensation liability was not applicable to principle contractor liable because subcontractor failed to secure workers' compensation insurance. Brown v. Canterbury Corp., 844 S.W.2d 134, 1992 Tenn. LEXIS 609 (Tenn. 1992).

4. —Insurer as “Employer.”

In view of the definition of employer herein as including his insurer, notice of employer's insurer of willingness to pay compensation is sufficient to start running of the period of limitation within which suit may be brought, as provided in former § 50-6-224. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

Employee had the right to sue the insurance carrier without joining the employer and the mere fact that the statute of limitations barred his right to bring suit against the employer would not prevent his suing and recovering from the carrier where limitations had been tolled as to the carrier. General Acci. Fire & Life Assurance Corp. v. Kirkland, 210 Tenn. 39, 356 S.W.2d 283, 1962 Tenn. LEXIS 410 (1962).

The employer and insurer are each principals and are jointly and severally liable to the employee. General Acci. Fire & Life Assurance Corp. v. Kirkland, 210 Tenn. 39, 356 S.W.2d 283, 1962 Tenn. LEXIS 410 (1962).

The insurer may be sued directly by the employee for compensation benefits. General Guaranty Ins. Co. v. Scudginton, 213 Tenn. 532, 376 S.W.2d 464, 1964 Tenn. LEXIS 420 (1964).

5. Guarantor.

The guarantor of a self-insured employer's obligations is entitled to the same immunity as a workers' compensation insurer. Malkiewicz v. R.R. Donnelley & Sons Co., 703 F. Supp. 49, 1989 U.S. Dist. LEXIS 290 (M.D. Tenn. 1989), aff'd without opinion, 932 F.2d 968, 1991 U.S. App. LEXIS 14568 (6th Cir. Tenn. 1991).

There is no principled distinction between the status of a workers' compensation insurer and that of a guarantor who guarantees the employer's financial ability to comply with the workers' compensation statutes. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

Inclusion of a guarantor within the definition of “employer” so as to afford it the benefit of exclusive remedy provisions is consistent with the legislative purpose of insuring solvent and responsible sources of recovery under the compensation program. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

6. —Insurer's Act as Tolling Statute of Limitations.

Insurer's acts being for and in behalf of the employer under subsection (a), an agreement between an insurer and an employee tolled the statute of limitations, so that action by employee against employer was not barred. Moore v. Hines, 170 Tenn. 456, 95 S.W.2d 928, 1936 Tenn. LEXIS 15 (1936).

7. —Charities.

An educational institution constructing a reservoir, not necessary for its own water supply but to provide the needs of a municipality for profit, is liable for compensation to a worker thereon. Lincoln Memorial University v. Sutton, 163 Tenn. 298, 43 S.W.2d 195, 1931 Tenn. LEXIS 115 (1931).

A university which was a charitable educational institution operating under a welfare charter was an employer within the meaning of this section. Smith v. Lincoln Memorial University, 202 Tenn. 238, 304 S.W.2d 70, 1957 Tenn. LEXIS 386 (1957).

8. —Sufficiency of Evidence.

In suit for workers' compensation, evidence showed that the employers had as many as five employees at time of injury, notwithstanding employer's claim that part of their business had been sold or leased to another. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

9. —Jury Question.

Submitting to the jury the question of whether the defendant corporation was an employer of decedent where decedent was killed while employed by a wholly owned subsidiary of defendant was not prejudicial where substantial evidence in the record supported the jury's finding that the parent corporation was not an employer and where decedent was not a special employee of defendant corporation. Latham v. Technar, Inc., 390 F. Supp. 1031, 1974 U.S. Dist. LEXIS 6079 (E.D. Tenn. 1974).

10. Employees.

The ordinary and usual meaning of the word “employee” is one who is employed by another and works for wages or salary without regard to whether the employment is legal or illegal. American Surety Co. v. Clarksville, 204 Tenn. 67, 315 S.W.2d 509, 1958 Tenn. LEXIS 247 (1958).

In defining the term “employee” the general assembly intended to cover contracts for hire the making of which is prohibited (such as employment in certain cases of minors) but not those contracts, even though legal contracts of hire, where the acts required of the employee are themselves a violation of the penal statutes and the employee receives injuries in the performance of the required illegal acts. Bowers v. General Guaranty Ins. Co., 221 Tenn. 719, 430 S.W.2d 871, 1968 Tenn. LEXIS 499 (1968).

Employee who as part of his employment knowingly violated penal statutes against illegal sale of intoxicating liquor and who was injured in the course of making such a sale was not an “employee” under the statute and was not entitled to compensation. Bowers v. General Guaranty Ins. Co., 221 Tenn. 719, 430 S.W.2d 871, 1968 Tenn. LEXIS 499 (1968).

Whether a workers' compensation claimant was an employee depends upon the nature of the defendant's business, the way it was conducted and the claimant's relationship to the business. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

Farmer who brought load of tobacco to warehouse and who was told by owner that if he unloaded the tobacco he would be paid for it was an employee of the warehouse when injured while unloading the tobacco. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

The question of whether a claimant is an employee under this section and of whether he is a casual employee under § 50-6-106 are separate and distinct questions. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

For one to be an employee of another there must be an express or implied agreement for the alleged employer to remunerate the alleged employee for his services in behalf of the former. Black v. Dance, 643 S.W.2d 654, 1982 Tenn. LEXIS 372 (Tenn. 1982).

For comprehensive enumeration of what constitutes employees for hire and volunteer or gratuitous employees, see Hill v. King, 663 S.W.2d 435, 1983 Tenn. App. LEXIS 650 (Tenn. Ct. App. 1983).

Where volunteer deputy received occasional meal and reimbursement for mileage and expenses, the court might stretch the definition of “hire” if the question was whether or not workers' compensation was due, but would not impute or imply a waiver of the common-law right to recover full compensation or the statutory right to recover within the limits of the Governmental Tort Liability Act (title 29, ch. 20) without real, palpable and substantial consideration; the law will not presume that the deputy sold his birthright for a mess of pottage. Hill v. King, 663 S.W.2d 435, 1983 Tenn. App. LEXIS 650 (Tenn. Ct. App. 1983).

A Comprehensive Employment Training Act worker was an employee both of the local referring agency and of the business which provided the training. Jackson Housing Authority v. Auto-Owners Ins. Co., 686 S.W.2d 917, 1984 Tenn. App. LEXIS 3363 (Tenn. Ct. App. 1984).

A convict cannot make an employment contract with the authorities who confine him, and is not entitled to workers' compensation benefits. Howard v. Uselton, 774 S.W.2d 925, 1989 Tenn. LEXIS 383 (Tenn. 1989).

Job applicant does not have a cause of action under the Tennessee Workers'  Compensation Act against a prospective employer for failure to hire if the prospective employer failed to hire the job applicant because that applicant had filed, or is likely to file, a workers'  compensation claim against a previous employer; moreover, the Second Injury Fund does not show a legislative intent to allow job applicants who have been previously injured to sue prospective employers for failure to hire. Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 2015 Tenn. LEXIS 630 (Tenn. Aug. 21, 2015).

11. —Independent Contractors and Employees Distinguished.

One employed to do work according to his own methods, free from control of employer, was an independent contractor. Siskin v. Johnson, 151 Tenn. 93, 268 S.W. 630, 1924 Tenn. LEXIS 47 (1925).

Where the power to direct and supervise the work is reserved, the contractee is a servant and not an independent contractor. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924); Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

The mere fact that the laborer is receiving so much by the piece or job does not control the question as to whether the contractee was an independent contractor or a servant. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924); Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

One employed at certain price per thousand feet “to cut and haul said timber as directed by said first party,” the employer having power to direct and supervise the cutting, was a servant, obliged to do the work strictly according to instructions, and not an independent contractor. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924).

Under contract of employment whereby employer simply agreed to pay one for hauling lumber according to the amount hauled, with no relinquishment by the employer of the right to control the means and method by which the hauling was done, or to terminate the employment, the hauler was an employee within meaning of this section and not an independent contractor. Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W.2d 860, 1928 Tenn. LEXIS 119 (1928).

The relationship of employer and employee arises where the former selects the latter, and may discharge him and may order not only that the work shall be done but also the mode of its performance. Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

Where petitioner agreed to paint a roof at rate of $50.00 per hour and at a maximum labor cost of $15.00 for himself and helper and where there was no evidence to show any relinquishment by employer of his right to control the means and methods by which the painting was to be done, there was material evidence to support the chancellor's finding that petitioner was an employee and not an independent contractor. Welch v. Reiling, 170 Tenn. 698, 99 S.W.2d 216, 1936 Tenn. LEXIS 51 (1936).

Where owner of candy company paid social security tax and carried compensation insurance on traveling salesman who was compensated on a basis of five percent of his gross sales and paid his own expenses and at times as a sideline sold goods for other companies with the consent of the candy company but did not so do in the state of Georgia where his death occurred, such salesman was an employee of the candy company and not an independent contractor and was covered by the compensation statute. Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

In ascertaining whether a given contract establishes an employer-employee status or that of an independent contractor, the decisive fact always is whether the party for whom the work was being done had the right of control in the doing of that work. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

Individual injured hauling logs in own truck was entitled to compensation as an employee, rather than an independent contractor, where he was hired for an indefinite time and amount of work with some control of the manner of working, even though he is paid by the piece, particularly where indorsement blank on salary checks states the parties are subject to fair labor standards act. Bond Bros., Inc. v. Spence, 198 Tenn. 316, 279 S.W.2d 509, 1955 Tenn. LEXIS 374 (1955).

There is no absolute formula whereby it can be determined whether a party is an employee or independent contractor but the facts of each particular case have to be taken into consideration and from these facts a determination made. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956); Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959); Smart v. Embry, 208 Tenn. 686, 348 S.W.2d 322, 1961 Tenn. LEXIS 340 (1961).

One of the most widely accepted definitions of an independent contractor is: “One who contracts to do a piece of work according to his own methods without being subject to the control of his employer, except as to the result of the work, and who has the right to employ and direct the action of the worker independent of his employer, and free from any superior authority in the employer to say how specified work shall be done, or what the laborers shall do as the work progresses; one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.” Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956); Smart v. Embry, 208 Tenn. 686, 348 S.W.2d 322, 1961 Tenn. LEXIS 340 (1961); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

In determining whether one is an employee or an independent contractor, it is the duty of the court to give the Workers' Compensation Law a liberal construction in favor of the fact that he is an employee, rather than a strict construction. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956).

Where petitioner contracted with coal company to mine coal at stated price per ton with the company to furnish certain equipment and the petitioner to furnish the labor and certain other equipment, and where petitioner paid social security, withheld income tax and paid into miner's pension fund as to his employees but the coal company reserved and exercised full control of where and how the coal was to be mined as well as the quantity of coal and the place at which it was to be delivered and petitioner could have been discharged at any time, evidence supported finding of the trial court that petitioner was an employee rather than an independent contractor. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956).

Where ice cream vendor was furnished with pushcart and products to sell at retail with unsold products being returned to company at close of each day, and company at all times kept control of equipment and products and could seize the products and equipment at any time and terminate contract with vendor, vendor was an employee rather than an independent contractor even though his compensation was the difference between the wholesale and retail prices of the products. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The right of a company to terminate relationship with claimant at will is strong evidence that claimant is an employee rather than an independent contractor. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959); Owens v. Turner, 211 Tenn. 121, 362 S.W.2d 793, 1962 Tenn. LEXIS 348 (1962); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Whether claimant is an employee or independent contractor depends upon the nature of business of the alleged employer, the way it is conducted and the claimant's relationship to that business. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The method of payment for services supposed to be rendered by claimant is not controlling on question of whether he is an employee or independent contractor. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The mere fact that employee was paid at rate of so much per thousand brick laid would not make him an independent contractor or prevent him from being an employee within the meaning of the Act. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960).

In determining whether an individual is an employee or an independent contractor, the test is whether employer had the right to control the employee in doing his work and not whether that right was exercised. Owens v. Turner, 211 Tenn. 121, 362 S.W.2d 793, 1962 Tenn. LEXIS 348 (1962).

Carpenter hired for purpose of repairing garage door by owner of motor company who worked by the hour and intended to submit bill when job was complete was independent contractor and not an employee of the garage owner. Federated Mut. Implement & Hardware Co. v. Shoemaker, 211 Tenn. 523, 366 S.W.2d 129, 1963 Tenn. LEXIS 377 (1963).

For determining whether worker is an employee or an independent contractor in workers' compensation cases, one test is whether employer had a right to control employee in doing the work, and another, the right to terminate the employment at any time, such rights being incompatible with full control of the work usually enjoyed by independent contractor. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Painter was employee rather than independent contractor where he was directed by farm operator to paint trim on house on a particular day and complied, employment could be terminated at any time, regular employees were directed from time to time to paint farm buildings, and painting was an expectable, routine and inherent part of the farming operation. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Factors to be considered in determining whether claimant is an employee or an independent contractor include right or exercise of control by asserted employer, method of payment, furnishing of equipment and right to fire. Fisher v. J. F. G. Coffee Co., 221 Tenn. 333, 426 S.W.2d 502, 1967 Tenn. LEXIS 360 (1967).

Where there is a contract of employment either express or implied the burden is on the employer to show that the claimant is an independent contractor rather than an employee. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

Plaintiff who was engaged to clean bricks on new buildings by the job or by number of bricks, who was not controlled as to means of accomplishment of end result, furnished major portion of tools and materials and frequently hired and paid his own employees, although on occasion he received help from contractor's employees without charge, was, on the facts of the case, an independent contractor rather than an employee, even though plaintiff and building contractor may have engaged in some occasional consultation and experimentation with reference to cleaning solution to be used. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Among the tests for determining whether a work relationship is that of employer-employee or of independent contractor are: (1) Right to control conduct of work; (2) Right of termination; (3) Method of payment between alleged employer and employee; (4) Whether or not alleged employee furnishes his own helpers; and (5) whether or not the alleged employee furnishes his own tools, but these tests are not absolute and are not to be applied abstractly. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969); Carver v. Sparta Electric System, 690 S.W.2d 218, 1985 Tenn. LEXIS 499 (Tenn. 1985); Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 1985 Tenn. LEXIS 591 (Tenn. 1985).

So-called “relative nature of the work” test is of vital significance on the issue of whether an individual is an employee or casual employee but is of less significance where the question is whether the injured person is an employee or independent contractor. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Where only practical difference between truck drivers delivering manufacturer's products as employees and as “contract haulers” was that contract haulers stood to make more money and both types of drivers worked same hours, performed same duties and contracts of contract haulers could be terminated at any time, action of trial judge in finding that “contract hauler” was employee would be sustained. Curtis v. Hamilton Block Co., 225 Tenn. 275, 466 S.W.2d 220, 1971 Tenn. LEXIS 300 (1971).

Where worker had leased a tractor from corporation to be used by worker in delivering gasoline and petroleum products for corporation, and where the lease agreement had provided that the leased equipment would be operated by the corporation's exclusive direction and control and that corporation would have the right to terminate the services of any driver, the worker was an employee of the corporation rather than an independent contractor for workers' compensation purposes. Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858, 1976 Tenn. LEXIS 587 (Tenn. 1976).

Where defendant held a franchise to operate a taxicab company, and where a taxicab driver was seriously injured while answering one of defendant's radio dispatches, the fact that the name of the company and other business information was painted on the vehicles, that all of the cabs were radio dispatched, that gasoline purchases were made by the drivers from defendant, that defendant supplied oil for each vehicle, and that defendant's supervisors checked cabs for cleanliness, constituted sufficient evidence of an employer-employee relationship rather than of independent contractors, and defendant was required to compensate plaintiff under § 50-6-112. Nesbit v. Powell, 558 S.W.2d 436, 1977 Tenn. LEXIS 659 (Tenn. 1977).

Where man and his wife worked on painting and papering homes for mortgage company and painting was sometimes paid for by the hour and sometimes on square foot basis and papering was paid for by the roll, and he could set his own working hours, provide his own tools and hire additional helpers if he wished, he was an independent contractor and not an employee. Barnes v. National Mortg. Co., 581 S.W.2d 957, 1979 Tenn. LEXIS 442 (Tenn. 1979).

Where: (1) Injured person was a member of a partnership and was working on the construction of a house for a general contractor; (2) The general contractor inspected the work to the extent necessary to see that the end result would be according to plan but did not control the methods and details of the work; (3) Payment was negotiated on the square foot of completion basis; and (4) Such injured person hired and paid his own helpers and did not use the workers of the general contractor, such injured person was an independent contractor rather than an employee of the general contractor. Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923, 1980 Tenn. LEXIS 472 (Tenn. 1980).

Where defendant supplied all his own tools and workers, and plaintiff had no right to termination and did not deduct social security or income taxes from defendant's paychecks, defendant was an independent contractor. Jackson Sawmill, Inc. v. West, 619 S.W.2d 105, 1981 Tenn. LEXIS 453 (Tenn. 1981).

The fact that a company did not deduct social security or income taxes was not controlling in deciding whether an employer-employee or independent contractor relationship existed. Carver v. Sparta Electric System, 690 S.W.2d 218, 1985 Tenn. LEXIS 499 (Tenn. 1985).

The following are to be considered as means of analysis, not as absolutes, in the determination of an independent contractor or employee relationship: (1) The right to control the conduct of the work; (2) The right of termination; (3) The method of payment; (4) The freedom to select and hire helpers; (5) The furnishing of tools and equipment; (6) Self scheduling of work hours; and (7) Being free to render services to other entities. German v. Whaley, 760 S.W.2d 627, 1988 Tenn. LEXIS 201 (Tenn. 1988).

The method of payment, the freedom to select and hire helpers, the furnishing of tools and equipment, and the freedom to render services to other entities unequivocally established defendant as an independent contractor, and evidence on issues of termination and control did not persuasively indicate an employer-employee relationship. German v. Whaley, 760 S.W.2d 627, 1988 Tenn. LEXIS 201 (Tenn. 1988); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

A party to a contract can exercise direction and control over the results of the work without destroying the independence of the contract or creating an employer-employee relationship. Wright v. Knox Vinyl & Aluminum Co., 779 S.W.2d 371, 1989 Tenn. LEXIS 465 (Tenn. 1989).

While no single factor is determinative, the supreme court has repeatedly emphasized the importance of the right to control when distinguishing employees and independent contractors, the relevant inquiry being whether the right existed, not whether it was exercised. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Method of payment does weigh toward finding an independent contractor relationship, but it is one factor among many to be considered. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Where truck leasing company required driver to sign contract emphasizing driver's status as “independent contractor” rather than “employee,” but could effectively terminate its relationship with driver at will, retained the responsibility for selecting the routes to be driven, required driver to take the most commercially reasonable route and offset any equipment operating costs due to a deviation in route against driver's earnings, penalized driver if he failed to meet pickup or delivery times, required driver to report daily, and required driver to obtain company approval before taking time off from work, evidence supported chancellor's findings that relationship was that of employer-employee. Boruff v. CNA Ins. Co., 795 S.W.2d 125, 1990 Tenn. LEXIS 277 (Tenn. 1990).

Independent contractor status did not place the defendant outside the purview of T.C.A. § 50-6-102 as the defendant was performing a non-delegable duty of the workers' compensation carrier when it failed to pay plaintiff's claim. Davis v. Alexsis, Inc., 2 S.W.3d 228, 1999 Tenn. App. LEXIS 203 (Tenn. Ct. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 449 (Tenn. Sept. 13, 1999).

Courier, who was denied insurance benefits for an injury sustained while making a delivery, was an employee under T.C.A. § 50-6-102, rather than an independent contractor as designated in his employment contract, where the employer controlled the method of payment, the courier was required to pay for an insurance program that he did not want to participate in, the courier did not have control of his vacation schedule, the employer set the courier's work schedule, the courier did not have time or permission to offer his services to other entities, and the employer had the right to terminate the courier. Dillon v. NICA, Inc., — S.W.3d —, 2011 Tenn. App. LEXIS 669 (Tenn. Ct. App. Dec. 14, 2011).

When physical therapists were required to supervise the therapists'  assistance, such requirement did not make the physical therapists the employees of an insured with whom the therapists contracted, for purposes of making the insured liable to insurers for workers'  compensation premiums for the therapists, because this was a requirement imposed by law that did not show whether the insured could exercise the requisite control over the therapists. Cont'l Cas. Co. v. Theraco, Inc., 437 S.W.3d 841, 2014 Tenn. App. LEXIS 16 (Tenn. Ct. App. Jan. 14, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 451 (Tenn. May 28, 2014).

Insured was not liable to insurers for workers'  compensation premiums for physical therapists with whom the insured contracted on the theory that the therapists were the insured's employees because the therapists were independent contractors, as there was insufficient evidence that the insured had the right to control how the therapists provided therapy. Cont'l Cas. Co. v. Theraco, Inc., 437 S.W.3d 841, 2014 Tenn. App. LEXIS 16 (Tenn. Ct. App. Jan. 14, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 451 (Tenn. May 28, 2014).

12. —Status of Claimant — Nature of Question.

If facts surrounding oral contract of employment are undisputed the question of determining whether claimant is an employee or an independent contractor is one of law. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

If facts are undisputed question of whether claimant is an employee or an independent contractor is one of law. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

A convict performing work for the county during his imprisonment was not under any contract, express or implied, and was therefore not an employee for purposes of the Workers' Compensation Laws. Abrams v. Madison County Highway Dep't, 495 S.W.2d 539, 1973 Tenn. LEXIS 492 (Tenn. 1973).

Where the new hire was injured in an automobile accident while traveling to a training facility, she was an employee for purposes of T.C.A. § 50-6-102. The new hire was being paid for her time at orientation; as soon as the orientation was over, she was to report to the nursing home to begin her work as a hostess at that facility. Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 2006 Tenn. LEXIS 301 (Tenn. 2006).

13. —Burden of Proof.

The burden of proof is on the employer to show that status of alleged employee was that of an independent contractor. Sledge v. Hunt, 157 Tenn. 606, 12 S.W.2d 529, 1928 Tenn. LEXIS 227 (1928).

Any doubt as to whether an injured worker is an employee or an independent contractor must be resolved in favor of the former. Kamarad v. Parkes, 201 Tenn. 566, 300 S.W.2d 922, 1957 Tenn. LEXIS 335 (1957); Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

Where a business relation or contract of employment, either express or implied, is shown, the burden is on the employer to show that claimant is an independent contractor rather than an employee. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Because the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., must be rationally but liberally construed to promote and adhere to the purpose of securing benefits to those workers who fall within its coverage, the supreme court will resolve doubts in favor of a finding that a worker is an employee rather than an independent contractor. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Burden of proof is upon the employee to establish that the employer “had the requisite number of employees to bring it within the application of Tennessee's compensation statute.” Mooney v. Stainless, Inc., 338 F.2d 127, 1964 U.S. App. LEXIS 4741 (6th Cir. Tenn. 1964), cert. denied, 381 U.S. 925, 85 S. Ct. 1561, 14 L. Ed. 2d 684, 1965 U.S. LEXIS 1173 (1965).

14. —Presumption.

There is a rebuttable presumption that one performing work for another is his employee. Sledge v. Hunt, 157 Tenn. 606, 12 S.W.2d 529, 1928 Tenn. LEXIS 227 (1928); Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930); Phillips v. Tennessee Eastman Corp., 160 Tenn. 538, 26 S.W.2d 1051, 1929 Tenn. LEXIS 130 (1929).

Where employment appears, the presumption is that one doing work is an employee and the burden is on the employer who seeks to be relieved from the liability arising from such relationship to establish an independent contractual relationship and to show that he has relinquished his right to control the other and that the other did not have to take orders and instructions from him. Welch v. Reiling, 170 Tenn. 698, 99 S.W.2d 216, 1936 Tenn. LEXIS 51 (1936); Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

15. —Necessity of Contract.

No action will lie unless the parties are bound by contract, express or implied. Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 1932 Tenn. LEXIS 86 (1933); Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

Recovery under the Workers' Compensation Act, whether by an adult or a minor, is recovery as under a contract. Moore v. Nashville Union Stock Yards, Inc., 169 Tenn. 638, 90 S.W.2d 524, 1935 Tenn. LEXIS 91 (1936).

16. —Regular Employee.

The amount of compensation paid and the length of time one is employed are not determinative of whether he is a regular or a casual employee, nor is it material that an alleged employee is related to his employer. Brady v. Reed, 186 Tenn. 556, 212 S.W.2d 378, 1948 Tenn. LEXIS 581 (1948); American Surety Co. v. Clarksville, 204 Tenn. 67, 315 S.W.2d 509, 1958 Tenn. LEXIS 247 (1958).

The mere fact that some of the persons who were in the defendants' service were minors and were “picked up” from day to day and not used for a specified time does not exclude them from the class of regular employees as defined by state statutes. So long as they were members of the class who were doing some work that was necessary in carrying on the particular business, they fall within the classification of those “regularly employed.” Brady v. Reed, 186 Tenn. 556, 212 S.W.2d 378, 1948 Tenn. LEXIS 581 (1948).

The nature of the employment rather than its frequency or infrequency or its duration determines whether the employment is casual or regular. American Surety Co. v. Clarksville, 204 Tenn. 67, 315 S.W.2d 509, 1958 Tenn. LEXIS 247 (1958).

So long as compensation claimant was a member of a class doing some work necessary in carrying on defendant's business he fell within the classification of those regularly employed. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

17. —Part-time.

Evidence was sufficient to show that claimant was a part-time employee. Jones v. Crenshaw, 645 S.W.2d 238, 1983 Tenn. LEXIS 604 (Tenn. 1983).

18. —Temporary Work for Another Employer.

Where employer authorized its employee to execute trucking “trip lease” with another trucking company, employer remained liable for employee's injuries even though trip lease worked to sole benefit of other company. Argonaut Ins. Co. v. Vanatta, 539 S.W.2d 35, 1976 Tenn. LEXIS 571 (Tenn. 1976).

19. —Last Date Worked Rule.

The “last date worked” rule was adopted to prevent workers with gradual and repetitive injuries from losing the opportunity to bring claims due to the statute of limitations; thus, where evidence supported a causal connection between plaintiff's injury and her employment, her failure to miss work was not fatal to her claim. Story v. Legion Ins. Co., 3 S.W.3d 450, 1999 Tenn. LEXIS 434 (Tenn. 1999).

Last day worked rule does not apply when determining an employee's compensation rate if the employee gives the employer actual notice of a gradually occurring injury prior to missing time from work on account of the injury. Accordingly, the judgment of the trial court was modified to reflect an award based on a weekly compensation rate calculated as of the date the employee reported her gradually occurring injury to her employer, rather than on the date of her surgery, the latter date being the date she finally stopped working. Bone v. Saturn Corp., 148 S.W.3d 69, 2004 Tenn. LEXIS 907 (Tenn. 2004), overruled in part, Bldg. Materials Corp. v. Britt, 211 S.W.3d 706, 2007 Tenn. LEXIS 21 (Tenn. 2007), overruled, Shoulders v. TRW Commer. Steering Div., — S.W.3d —, 2007 Tenn. LEXIS 351 (Tenn. Apr. 3, 2007), overruled, Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 2007 Tenn. LEXIS 741 (Tenn. Aug. 30, 2007), overruled in part, Mathenia v. Milan Seating Sys., 254 S.W.3d 313, 2007 Tenn. LEXIS 896 (Tenn. 2007), overruled, Buckingham v. Fid. & Guar. Ins. Co., — S.W.3d —, 2007 Tenn. LEXIS 910 (Tenn. Oct. 25, 2007), overruled, Pickens v. Delta Faucet, — S.W.3d —, 2007 Tenn. LEXIS 914 (Tenn. Oct. 29, 2007), overruled, Aerospace Testing Alliance v. Anderson, — S.W.3d —, 2008 Tenn. LEXIS 369 (Tenn. May 23, 2008), overruled in part, Edwards v. Saturn Corp., — S.W.3d —, 2008 Tenn. LEXIS 617 (Tenn. Sept. 25, 2008).

20. —Loaned Employees.

Although during the year immediately preceding an employee's death, he was loaned to another company by his employer, and worked for the other company three weeks, he should be treated as a regular employee of his employer during the year, and comes under subdivision (a)(1), in determining the amount of compensation. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

Where truck owner loaned drivers to contractor for hauling of material to state highway and contractor supervised hauling and paid wages though deducting amount of wages from amount due truck owner, the contractor was a special employer and was liable to injured truck driver for compensation. Wardrep v. Houston, 168 Tenn. 170, 76 S.W.2d 328, 1934 Tenn. LEXIS 36 (1934).

In determining whether an employee in a particular instance should be regarded as a loaned employee in the service of a special employer or whether he should be regarded as remaining in the service of his general employer the question of whose work the employee was engaged in at the time of the injury is a test to be considered. Owen v. St. Louis Spring Co., 175 Tenn. 543, 136 S.W.2d 498, 1939 Tenn. LEXIS 72 (1940).

Where it was the duty of the seller of a machine to furnish a man to install the machine and to instruct the buyer's employees in the use of it and where the buyer could instruct such person what to do but not how to do it, a worker who was injured while engaged in such operations was not a loaned employee even though he was at the time on the payroll of the buyer but was in the employ of the general employer. Owen v. St. Louis Spring Co., 175 Tenn. 543, 136 S.W.2d 498, 1939 Tenn. LEXIS 72 (1940).

Employee loaned by employer to foreman for personal use outside of working hours, where employer continues to pay wages, is not injured in course of employment where accidental death occurred in employer's truck, even though employee had finished job, delivered helper home, and was returning truck to employer. Kempkau v. Cathey, 198 Tenn. 17, 277 S.W.2d 392, 1955 Tenn. LEXIS 339 (1955).

The rule was adopted in Tennessee that where a general employer lends an employee to a special employer the special employer becomes liable for workers' compensation only if: (1) The employee has made a contract of hire express or implied with the special employer; (2) The work being done is essentially that of the special employer; and (3) The special employer has the right to control the details of the work. Winchester v. Seay, 219 Tenn. 321, 409 S.W.2d 378, 1966 Tenn. LEXIS 531 (1966).

Where worker was injured while cutting metal strip to fit under air conditioner over door of restaurant, such employee was engaged in maintenance and repair work so as to be entitled to compensation from restaurant owner rather than from his regular employer even though he was regularly employed at nearby hotel where at time of injury he was working under direction of owner of restaurant and not of his regular employer. Winchester v. Seay, 219 Tenn. 321, 409 S.W.2d 378, 1966 Tenn. LEXIS 531 (1966).

Where four separate equipment rental corporations had common president, vice president and general manager who supervised all operations and exercised control over all employees who at different times performed work for all corporations, employee of one corporation who was injured while performing work for a second of the corporations was engaged in dual employment and his remedy was against second corporation under the Workers' Compensation Law rather than by common law tort action. Potts v. Knox-Tenn Rental, Inc., 62 Tenn. App. 699, 467 S.W.2d 796, 1971 Tenn. App. LEXIS 205 (Tenn. Ct. App. 1970).

Decedent was not a loaned employee where she was employed by the wholly owned subsidiary of a parent corporation, although at the time of her death in an industrial explosion she was doing work for the parent company which controlled the details of her work, due to fact that decedent was not transferred to a new payroll and that the evidence at trial failed to show that decedent expressly or impliedly consented to a change of employers. Latham v. Technar, Inc., 390 F. Supp. 1031, 1974 U.S. Dist. LEXIS 6079 (E.D. Tenn. 1974).

Where plaintiff was injured while he was working on a crew which had been requested by defendant from plaintiff's regular employer, and where this crew was working under the direction of one of defendant's supervisors, plaintiff was a “loaned servant” and defendant was consequently plaintiff's employer for the purposes of recovery. Carpenter v. Hooker Chemical & Plastics Corp., 553 S.W.2d 356, 1977 Tenn. App. LEXIS 286 (Tenn. Ct. App. 1977).

Employee found to be “loaned servant.” Catlett v. Indemnity Ins. Co., 813 S.W.2d 411, 1991 Tenn. LEXIS 270 (Tenn. 1991).

21. —Employee of Independent Contractor.

Plaintiff who worked for general contractor was employee of general contractor where latter constructed a home for third party on a flat fee of five percent of cost, though plaintiff was paid directly by third party. Edwards v. Harvey, 194 Tenn. 603, 253 S.W.2d 766, 1952 Tenn. LEXIS 428 (1952).

Evidence that contractor had actual knowledge and notice of accident, and that claimant was contractor's employee, was sufficient to uphold award of compensation. Rote v. Walls, 197 Tenn. 463, 274 S.W.2d 1, 1954 Tenn. LEXIS 508 (1954).

Where contractor was engaged on a cost plus basis to make certain changes in manufacturing plant and such contractor employed and supervised its own workers and acted in its own discretion as to the manner of accomplishing the alterations provided for in the contract, worker injured on the construction project was an employee of the contractor and not of the manufacturing corporation and was entitled to maintain common law action against manufacturing corporation as third party tort feasor. Bowaters Southern Paper Corp. v. Brown, 253 F.2d 631, 1958 U.S. App. LEXIS 5205 (6th Cir. Tenn. 1958).

Where evidence showed that deceased was killed more than three months after his employment was terminated by defendant manufacturing company and that at the time of the accident he was driving a truck owned and operated by and under the instructions of a third party, he was not an employee of defendant manufacturing company even though at the time of the accident the truck was carrying property of defendant manufacturing company. Gluck Bros., Inc. v. Turner, 205 Tenn. 691, 330 S.W.2d 311, 1959 Tenn. LEXIS 409 (1959).

22. —Minors.

Every injured employee must give notice of injury as prescribed by statute even though he is a minor, unless there is a reasonable excuse for not doing so. Moore v. Nashville Union Stock Yards, Inc., 169 Tenn. 638, 90 S.W.2d 524, 1935 Tenn. LEXIS 91 (1936).

23. — —Validity of Provisions as to.

This statute is not invalid as undertaking to make an election for and a binding contract upon a minor employee when, by reason of such minority, he is unable to make such election or contract, since the act makes him sui juris as to power of election for purpose of the act. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

24. — —Illegal Employment — Effect.

Prior to the 1961 amendment, subdivision (a)(2) (now (a)(3)(A)) did not include the words “whether lawfully or unlawfully employed” following the word “minor.” Under the law prior to such amendment it was held that a minor unlawfully employed was not covered by the Workers' Compensation Law and therefore could maintain an action at common law for damages in the cases of Manning v. American Clothing Co., 147 Tenn. 274, 247 S.W. 103, 1922 Tenn. LEXIS 39 (1922); Western Union Tel. Co. v. Ausbrooks, 148 Tenn. 615, 257 S.W. 858, 1923 Tenn. LEXIS 47, 33 A.L.R. 330 (1924); Knoxville News Co. v. Spitzer, 152 Tenn. 614, 279 S.W. 1043, 1925 Tenn. LEXIS 108 (1926). It was held otherwise, however, with respect to employment in violation of municipal ordinance in Walsh v. Myer Hotel Co., 161 Tenn. 355, 30 S.W.2d 225, 1929 Tenn. LEXIS 64 (1930).

It was also indicated that a minor unlawfully employed could elect whether to seek recovery under the act or sue for damages at common law in the cases of Western Union Tel. Co. v. Ausbrooks, 148 Tenn. 615, 257 S.W. 858, 1923 Tenn. LEXIS 47, 33 A.L.R. 330 (1924); American Surety Co. v. Clarksville, 204 Tenn. 67, 315 S.W.2d 509, 1958 Tenn. LEXIS 247 (1958).

Where death of minor occurred prior to effective date of 1961 amendment extending definition of employee to a minor whether lawfully or unlawfully employed, administrator of minor's estate was entitled to maintain suit against employer of minor for wrongful death and amendment had no retroactive effect so as to preclude actions at law arising prior to the time the amendment became effective. Pigg v. Stacey, 210 Tenn. 144, 356 S.W.2d 593, 1962 Tenn. LEXIS 414 (1962); Mills v. Pigg, 54 Tenn. App. 612, 393 S.W.2d 28, 1965 Tenn. App. LEXIS 281 (Tenn. Ct. App. 1965).

In common law action for wrongful death arising prior to 1961 amendment to this section making compensation law applicable to minors whether lawfully or unlawfully employed, exclusion of evidence offered by defendants to show that decedent minor was lawfully employed at time of death and that common law action was thereby precluded was improper. Mills v. Pigg, 54 Tenn. App. 612, 393 S.W.2d 28, 1965 Tenn. App. LEXIS 281 (Tenn. Ct. App. 1965).

25. Leased Operators.

Grant of summary judgment in favor of the alleged employer was proper pursuant to T.C.A. § 50-6-106(1)(A) where it was not, as a matter of law, the alleged employees' employer so as to subject it to liability under the Workers' Compensation Law, T.C.A. § 50-6-101 et seq.; in a service agreement executed by the alleged employer and company, the company agreed to provide drivers to the alleged employer and the agreement stated that the personnel supplied to the alleged employer would be employees of the company only. Honsa v. Tombigbee Transp. Corp., 141 S.W.3d 540, 2004 Tenn. LEXIS 632 (Tenn. 2004), rehearing denied, — S.W.3d —, 2004 Tenn. LEXIS 826 (Tenn. Aug. 18, 2004).

26. — —Limitations.

Since subdivision (a)(2) (now (a)(3)(A)) expressly includes a minor within the definition of an employee and § 50-6-224(4) (now 50-6-224(a)(4)), expressly excludes minors from those entitled to extension of the statute of limitations for reasons of physical or mental incapacity to assert their rights, a minor is subject to the one year statute of limitations with reference to making his claim under the Workers' Compensation Law. Franse v. Knox Porcelain Corp., 171 Tenn. 49, 100 S.W.2d 647, 1936 Tenn. LEXIS 59 (1937).

27. —Associations — Status of Members.

Where incorporated rural education association paid plaintiff hourly wages before she signed paper stating that she was a member of the association and that thereafter she was to be paid “merely for the purpose of subsistence,” that she was not an employee and that any sums she received were not to constitute wages, but where she was continually paid a wage thereafter until the time of her injury, plaintiff was an employee of the association and the association was not relieved from liability under the compensation statute. Schroader v. Rural Educational Ass'n, 33 Tenn. App. 36, 228 S.W.2d 491, 1950 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1950).

28. —Corporate Officers.

Prior to the 1963 amendment subdivision (a)(2) (now (a)(3)(A)) did not include the words “the president, any vice president, secretary, treasurer, or other executive officer of a corporate employer” in the definition of “employee.” Cases decided prior to such amendment and determining whether the specific duties of such officials would constitute them employees are Alsup v. Murfreesboro Bread & Ice Cream Co., 165 Tenn. 591, 56 S.W.2d 746, 1932 Tenn. LEXIS 91 (1933); Alperin v. Eagle Indem. Co., 169 Tenn. 215, 84 S.W.2d 101, 1935 Tenn. LEXIS 34 (1935).

29. —Municipal Officers and Employees.

A policeman of a city is a civil officer and not “under any contract of hire” so as to be an employee. Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 1932 Tenn. LEXIS 86 (1933); Woods v. La Follette, 185 Tenn. 655, 207 S.W.2d 572, 1947 Tenn. LEXIS 370 (1947). However, see insurance company would cover a police officer when the provisions of the contract clearly provided for such coverage.

Where the injured employee seeking compensation was employed and paid by the federal emergency relief administration, and received the injury to his eye when engaged in emergency work, in the extension of a street, under a foreman furnished by the city, he is not entitled to compensation under the Workers' Compensation Act as against the city, since the work was being prosecuted by the federal emergency relief administration. Shelton v. Greeneville, 169 Tenn. 366, 87 S.W.2d 1016, 1935 Tenn. LEXIS 56 (1935).

Where there was material evidence to sustain the finding of the trial judge that the primary duties of municipal employee suing the municipality under the Workers' Compensation Law were those of a street superintendent or foreman and that he was acting in that capacity at the time of the accidental injury such finding was upheld even though there was some evidence in the record to show that petitioner served as an arresting officer or policeman. Shelbyville v. Hamilton, 170 Tenn. 297, 95 S.W.2d 43, 1935 Tenn. LEXIS 136 (1936).

30. —Stockholder of Employer.

The fact that an employee was a stockholder in the employer corporation is immaterial on question of his right to compensation. Alsup v. Murfreesboro Bread & Ice Cream Co., 165 Tenn. 591, 56 S.W.2d 746, 1932 Tenn. LEXIS 91 (1933).

31. —Partners.

A member of a partnership who receives wages is not an employee. An employee must be under the control of the employer. Gebers v. Murfreesboro Laundry Co., 159 Tenn. 51, 15 S.W.2d 737, 1928 Tenn. LEXIS 61 (1929).

Where decedent mined coal under an agreement of mutual understanding of partnership or joint venture, and each controlled his own work, and after the expenses were determined and deducted from the proceeds of the coal, the balance was divided up between the members in accordance with the amount of time each worked, deceased was not an employee. Tidwell v. Walden, 205 Tenn. 705, 330 S.W.2d 317, 1959 Tenn. LEXIS 411 (1959).

32. —Payment of Social Security Tax — Effect.

The payment by the employer of social security tax on the earnings of a traveling salesman was a recognition of the fact that such person was an employee so that the employer was in no position to deny the fact of employment. Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

Lumber company which provided plans and specifications for house, guaranteed owner that house would be erected to FHA or GI specifications, paid for labor on house, withheld social security and withholding taxes for all laborers except injured worker, relied on mechanics' and materialmen's statute, made statements at various times that it was the builder and furnisher and supervised job from beginning to end was employer of injured workman where proof showed that there was no difference between such worker and the other employees working on construction of the house except for fact that social security and withholding taxes were not withheld as to him. Kamarad v. Parkes, 201 Tenn. 566, 300 S.W.2d 922, 1957 Tenn. LEXIS 335 (1957).

The fact that neither social security taxes nor withholding taxes are deducted is not controlling on question of whether or not claimant is an employee. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

33. —Carrying Compensation Insurance — Effect.

Where an employer carries workers' compensation insurance and the earnings of the employee are included in computing the premiums paid for such insurance, neither the employer nor the insurer is in a position to question the relationship of the parties under the compensation law. Employers' Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837, 1937 Tenn. LEXIS 89 (1938) (decision under Kentucky statute); Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

Fact that building corporation included window washer in social security list which insurance company used to determine premium on policy covering employees of corporation was a factor to be considered in determining whether window washer was an employee or an independent contractor. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

Independent contractor was not covered by workers' compensation although deductions for workers' compensation insurance were deducted from checks paid to independent contractor. Barnes v. National Mortg. Co., 581 S.W.2d 957, 1979 Tenn. LEXIS 442 (Tenn. 1979).

34. —Admissibility of Evidence.

Testimony of municipal officers and others tending to show the character of work required of petitioner and petitioner's contract of employment with town was admissible in suit by municipal employee against town under the Workers' Compensation Law as showing that petitioner was an employee subject to the statute rather than a policeman with the weight of such testimony being for the trial judge. Shelbyville v. Hamilton, 170 Tenn. 297, 95 S.W.2d 43, 1935 Tenn. LEXIS 136 (1936).

35. Maximum Total Benefit.

The 1985 amendment to T.C.A. § 50-6-208(b)(2) does not authorize an exception to the maximum total benefit limitation of T.C.A. § 50-6-102 so that an employee who has been awarded temporary total disability benefits and permanent total disability benefits can recover more than the statutory maximum. Smith v. Liberty Mut. Ins. Co., 762 S.W.2d 883, 1988 Tenn. LEXIS 266 (Tenn. 1988).

When an injury is confined to a scheduled member, ordinarily only the statutory benefits for that particular member can be awarded. Onley v. National Union Fire Ins. Co., 785 S.W.2d 348, 1990 Tenn. LEXIS 81 (Tenn. 1990).

Award of permanent total disability benefits under T.C.A. § 50-6-207(4)(A)(i) are payable to age 65 without regard to the monetary cap imposed by the maximum total benefit provisions of T.C.A. § 50-6-102. Love v. American Olean Tile Co., 970 S.W.2d 440, 1998 Tenn. LEXIS 296 (Tenn. 1998).

Awards of permanent and total disability are not subject to the monetary cap imposed by the 400 week maximum total benefit provision of T.C.A. § 50-6-102. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

Because the statutory definition of maximum total benefit exempts permanent total disability awards from the 400 week limitation, such benefits are to be paid until age 65 under T.C.A. § 50-6-207(4)(A)(i) without regard to the monetary cap imposed by the maximum total benefit provision of T.C.A. § 50-6-102. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

As awards of permanent total disability under T.C.A. § 50-6-207(4)(A)(i) are not subject to the monetary cap imposed by the definition contained in T.C.A. § 50-6-102, once the employee was reclassified as being “100 percent permanently and totally disabled,” the employer and the workers' compensation insurer were liable for the total disability award without any credit for temporary total disability benefits previously paid to the employee. Vinson v. UPS, 92 S.W.3d 380, 2002 Tenn. LEXIS 706 (Tenn. 2002).

The 400-week statutory limitation applied to temporary total disability benefits as the statutory definition of maximum total benefit was clear; the only category of disability benefits exempted from this 400-week limitation was permanent total disability benefits and the maximum total benefit 400-week limitation applied to temporary total disability benefits. Thus, trial court erred in ordering the insurer to pay temporary total disability benefits in excess of the statutory 400-week limitation. Wausau Ins. Co. v. Dorsett, 172 S.W.3d 538, 2005 Tenn. LEXIS 660 (Tenn. 2005).

36. Maximum Weekly Benefit.

In the case of an employee who died with dependents in February 1993, the “maximum weekly benefit” was determined based upon the employee's average weekly wage; not until 662/3% of the employee's average weekly wage equals or exceeds 78% of the state's average weekly wage would that figure be used to determine the amount of compensation benefits payable to the dependents. Spencer v. Towson Moving & Storage, 922 S.W.2d 508, 1996 Tenn. LEXIS 306 (Tenn. 1996).

In a workers'  compensation case where the employee alleged she sustained injuries to her ankle and knee while lifting a patient, the trial court awarded 291 weeks of temporary disability benefits and a 65% permanent partial disability to the leg which resulted in a total award of 421 weeks of benefits. The trial court erred by awarding benefits in excess of the statutory maximum set out in T.C.A. § 50-6-102 because the employee's recovery of permanent and temporary disability benefits was subject to the 400-week maximum. Collier v. Life Care Ctrs. of Collegedale, — S.W.3d —, 2012 Tenn. LEXIS 736 (Tenn. Oct. 8, 2012), aff'd, — S.W.3d —, 2012 Tenn. LEXIS 737 (Tenn. Oct. 8, 2012).

37. Average Weekly Wages.

The court must ascertain the average weekly wages of petitioner by past earnings and not by what he may earn in the future. White v. Pinkerton Co., 155 Tenn. 229, 291 S.W. 448, 1926 Tenn. LEXIS 40 (1927); Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

The three methods of ascertaining the average weekly wage discussed. White v. Pinkerton Co., 155 Tenn. 229, 291 S.W. 448, 1926 Tenn. LEXIS 40 (1927); Bragg's Quarry v. Smith, 161 Tenn. 682, 33 S.W.2d 87, 1930 Tenn. LEXIS 55 (1930).

Ascertainment of average weekly wages as a basis of workers' compensation where employed over a year prior to the injury is constitutional under equal protection and due process clauses of U.S. Const., amend. 14 and Tenn. Const., art. I, § 8, where total wages for year are divided by 52, less weeks involuntarily laid off but not less weeks voluntarily laid off such as strike for employee's benefit. Hartley v. Liberty Mut. Ins. Co., 197 Tenn. 504, 276 S.W.2d 1, 1954 Tenn. LEXIS 519 (1954).

The average weekly wage of a claimant in workers' compensation must be ascertained by past earnings and not by what he may earn in the future. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Where employee was injured while engaged in part time work of unloading truck for carrier as loaned employee, award would be based on employee's part time earnings rather than on basis of standard hourly wage. Johnson v. Aero Mayflower Transit Co., 221 Tenn. 219, 425 S.W.2d 757, 1968 Tenn. LEXIS 458 (1968).

The compensation award is determined by the amount of wages the employee earns and not by the rate of the wage. Johnson v. Aero Mayflower Transit Co., 221 Tenn. 219, 425 S.W.2d 757, 1968 Tenn. LEXIS 458 (1968).

A computation of the “average weekly wage” of a part-time employee, such as the plaintiff, must be based upon his actual part-time earnings rather than upon the basis of the standard hourly wage or the standard work week of 40 hours. McKinney v. Feldspar Corp., 612 S.W.2d 157, 1981 Tenn. LEXIS 405 (Tenn. 1981).

Except in those cases where the claimant earns a given sum for a normal week, actual wages should be used in computing the claimant's average weekly wages. Russell v. Genesco, Inc., 651 S.W.2d 206, 1983 Tenn. LEXIS 653 (Tenn. 1983).

In computing an injured employee's average weekly wage, the court considers only the earnings of the injured employee in the employment in which he was working when injured. Acklie v. Carrier, 785 S.W.2d 355, 1990 Tenn. LEXIS 69 (Tenn. 1990).

The value of fringe benefits is not included in the calculation of an employee's average weekly wage. Pollard v. Knox County, 886 S.W.2d 759, 1994 Tenn. LEXIS 295 (Tenn. 1994).

Trial court erred in ruling that weeks an injured employee spent on strike should be excluded from the employee's average weekly wage because time spent away from work due to a strike was a voluntary absence. Goodman v. HBD Indus., 208 S.W.3d 373, 2006 Tenn. LEXIS 991 (Tenn. 2006), cert. denied, 550 U.S. 918, 127 S. Ct. 2130, 167 L. Ed. 2d 863, 2007 U.S. LEXIS 4558 (2007).

38. —What Constitutes Earnings.

The earnings of an employee include anything received by him under the terms of his employment contract from which he realizes economic gain. P & L Constr. Co. v. Lankford, 559 S.W.2d 793, 1978 Tenn. LEXIS 702 (Tenn. 1978).

Where an employee-shareholder foregoes any direct monetary compensation for his labors, a measure of his earnings would be the compensation paid by the same company to another employee performing the same or similar duties. P & L Constr. Co. v. Lankford, 559 S.W.2d 793, 1978 Tenn. LEXIS 702 (Tenn. 1978).

In certain situations involving closely held corporations, an employee-shareholder's earnings may include the implicit increase in the value of the stock held by such employee-shareholder which occurs when he foregoes any direct monetary compensation for his labors. P & L Constr. Co. v. Lankford, 559 S.W.2d 793, 1978 Tenn. LEXIS 702 (Tenn. 1978).

Gifts are not “earnings” within the meaning of of T.C.A. § 50-6-102. Jones v. Crenshaw, 645 S.W.2d 238, 1983 Tenn. LEXIS 604 (Tenn. 1983).

39. —Wages for Year as Basis of Computation.

It is only when the employment has been regular and continuous for a year or longer that the average weekly wage is determined by dividing the total wages received during the year by 52. Bragg's Quarry v. Smith, 161 Tenn. 682, 33 S.W.2d 87, 1930 Tenn. LEXIS 55 (1930).

In a compensation proceeding, where the chancellor found that the injured employee's total earnings for 52 weeks were $1,030.74, and during the year preceding the injury decedent lost six and 5/7 weeks of work, his average weekly wage was $22.76, on which compensation was properly based. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

40. —Time Lost as Incident to Employment.

Where worker had been employed regularly and continuously for several years, and such employment varied from week to week as to the number of hours per day and days per week, but since variation in weekly wages and amount of time worked per week was a normal and recognized incident of the employment and not due to chance happenings or uncontemplated circumstances, the proper test for determining worker's weekly wage was a division of the total annual amount earned by 52. Carter v. Victor Chemical Works, 171 Tenn. 141, 101 S.W.2d 462, 1936 Tenn. LEXIS 73 (1937).

Time lost by chance or accident is deducted, but time lost because of incidental events common and natural to the type or kind of employment, is not deducted. Strikes and “mine creep” are natural incidents of coal mining, and injured employee's average weekly wage was computed by dividing wages for the 52 weeks immediately preceding injury by 52, without deductions for 10 weeks lost because of a strike and “mine creep.” New Jellico Coal Co. v. Kenner, 172 Tenn. 185, 110 S.W.2d 476, 1937 Tenn. LEXIS 68 (1937).

41. —Loaned Employee.

Deceased was an employee for 52 week period prior to death though he was loaned to another company for three weeks during that period. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

42. —Wages Divided by Weeks Employed.

Average weekly wage of grocery store clerk who worked during holidays and Saturday afternoons and nights for 10 weeks was properly computed by dividing the total wages received by number of weeks employed. White v. Pinkerton Co., 155 Tenn. 229, 291 S.W. 448, 1926 Tenn. LEXIS 40 (1927).

Average wage determined by dividing wages received by number of weeks worked. Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

Where employment covered a period of several years but the employee did not work regularly and continuously, compensation will be based on average weekly wages actually earned during time of actual employment, the statute not specifically covering such a case. Bragg's Quarry v. Smith, 161 Tenn. 682, 33 S.W.2d 87, 1930 Tenn. LEXIS 55 (1930).

Where deceased lost six and 5/7 weeks out of 52 week period prior to death, proper method of determining average weekly wage was to divide total amount earned by 45 and 2/7 weeks. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

Where injured employee worked intermittently for a total of 14 weeks during the year preceding his injury, with the time worked being dependent on the amount of work his employer had available, such employee was not regularly employed within the meaning of this section and his average weekly wages should have been determined by dividing the total amount earned during the year by the number of weeks worked. Toler v. Nashville, C. & S. L. Ry., 173 Tenn. 378, 117 S.W.2d 751, 1937 Tenn. LEXIS 36 (1938).

Where time lost from work was not because of the fault of employee but because of shortage of material or lack of orders, average weekly wage would be determined on the basis of the number of weeks actually worked. Bryant v. McAllister, 202 Tenn. 654, 308 S.W.2d 412, 1957 Tenn. LEXIS 451 (1957).

Where injured employee was only employed part-time, the correct method of computing his average weekly wage was to divide the total wages received during the year by the number of weeks during which the employee received wages. Gaw v. Raymer, 553 S.W.2d 576, 1977 Tenn. LEXIS 584 (Tenn. 1977).

The average weekly wage of a part-time employee is found by dividing the total wages received during the year by the number of weeks during which the employee received wages. McKinney v. Feldspar Corp., 612 S.W.2d 157, 1981 Tenn. LEXIS 405 (Tenn. 1981).

The proper method of computing the average wages of a regular employee is to total his earnings and divide by 52, and in deciding which “lost” days can be deducted from the 52 weeks, only sickness, other disabilities and fortuitous events can be considered. Russell v. Genesco, Inc., 651 S.W.2d 206, 1983 Tenn. LEXIS 653 (Tenn. 1983).

43. —Wages of Person of Same Grade in Same Work.

A finding by the trial court that, because of the short duration of employment, it was impracticable to calculate compensation otherwise than by having regard to the available wages received by a person of the same grade, employed at the same work by the same employer, is one of fact binding on the supreme court when not appealed from. United States Fidelity & Guaranty Co. v. McBride, 165 Tenn. 580, 56 S.W.2d 736, 1932 Tenn. LEXIS 89 (1933).

Where employee worked only a few weeks before injury, finding as to amount of compensation due such employee based on wages of employee during such period including overtime and Sunday work was improper, and such finding should have been based on the average weekly wages of other employees in the same grade of work and class of employment. United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184, 1937 Tenn. LEXIS 112 (Tenn. Mar. 7, 1938).

Where deceased railroad switchman who worked only a day and a half during the preceding year was working under the “extra board” system when killed and evidence showed that switchmen working under such system averaged 20 days per month, the average weekly wage of other switchmen working under the system was to be used in determining compensation under the statute. A. G. S. R. Co. v. Wright, 175 Tenn. 138, 133 S.W.2d 457, 1939 Tenn. LEXIS 23 (1939).

44. —Evidence of Average Weekly Wage.

Where injured employee testified that his earnings had been $16.50 per week, agreement of employer and employee upon payment of $8.25 per week as compensation and payment thereof for 13 weeks afforded some evidence of employee's average weekly earnings for 52 weeks preceding injury. Cambria Coal Mining Co. v. Wilson, 156 Tenn. 64, 299 S.W. 811, 1927 Tenn. LEXIS 84 (1927).

Where plaintiff was paid a gross salary out of which he had to deduct his expenses, it was impossible to use any of the methods described in this section to determine his average weekly wage, and therefore resort to the average weekly amount being earned by a person in the same grade employed in the same class of employment in the same district was proper. American Mut. Liability Ins. Co. v. Bradshaw, 568 S.W.2d 97, 1978 Tenn. LEXIS 608 (Tenn. 1978).

Where the eight weeks during which the workers'  compensation claimant was on a leave of absence constituted lost days due to sickness or disability, those days and the disability benefits received, those days were properly excluded by the trial court from the computation of the claimant's average weekly wage under T.C.A. § 50-6-102. Cantrell v. Carrier Corp., 193 S.W.3d 467, 2006 Tenn. LEXIS 447 (Tenn. May 30, 2006).

45. —Bonuses and Allowances.

Bonus received by refiner of aluminum ore for doing a certain amount of work and working a certain number of days each week was a part of his compensation to be included in the computation of his average weekly pay. Otherwise the employer might escape his burdens by paying small wages and large bonuses. Moss v. Aluminum Co. of America, 152 Tenn. 249, 276 S.W. 1052, 1925 Tenn. LEXIS 69 (1925).

Provision that “wherever allowances of any character made to an employee in lieu of wages are specified as part of the wage contract, they shall be deemed a part of his earnings” is inapplicable where bonuses are not claimed to have been made in lieu of wages, the only question being whether the bonus was a part of the wages. Moss v. Aluminum Co. of America, 152 Tenn. 249, 276 S.W. 1052, 1925 Tenn. LEXIS 69 (1925).

“Meals” and “tips” are not part of the wage contract unless specifically made a part by the contract of employment. Crane Co. v. Jamieson, 192 Tenn. 41, 237 S.W.2d 546, 1951 Tenn. LEXIS 378 (1951).

When it is within the contemplation of the parties that tips received by an employee should be retained by him as part of his compensation such tips should be taken into account in determining average weekly wages. Bryson v. Benton, 217 Tenn. 116, 395 S.W.2d 794, 1965 Tenn. LEXIS 523 (1965).

Where employer and waitress in restaurant both treated tips as part of wages, such tips were “in lieu of wages” and within meaning of this section and were to be taken into account in computing average weekly wages. Bryson v. Benton, 217 Tenn. 116, 395 S.W.2d 794, 1965 Tenn. LEXIS 523 (1965).

46. Injury by Accident.

The word “accident” implies that the injury must partake of the unusual, casual, or fortuitous. Meade Fiber Corp. v. Starnes, 147 Tenn. 362, 247 S.W. 989, 1922 Tenn. LEXIS 48 (1923).

An injury need not be traumatic, it may be accidental whether occasioned by heat, germs or more abrupt or perceptible physical force. Whether an infection is an accidental injury must be determined on the facts of the case. Hartford Acci. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904, 1928 Tenn. LEXIS 76 (1929); Sears-Roebuck & Co. v. Starnes, 160 Tenn. 504, 26 S.W.2d 128, 1929 Tenn. LEXIS 126 (1930).

The statute is only applicable to cases of accidental injury, which is one unforeseen, unexpected and fortuitous. An element of unexpected casualty must be present. Other injuries are for common law action. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931).

An award is sustainable if death has been the result of, or shall at least have been substantially contributed to by, a compensable injury. Lenoir Car Works v. Hill, 163 Tenn. 578, 44 S.W.2d 321, 1931 Tenn. LEXIS 151 (1931).

The word “injury” as used in this chapter is synonymous with the word “accident” as used herein. Franse v. Knox Porcelain Corp., 171 Tenn. 49, 100 S.W.2d 647, 1936 Tenn. LEXIS 59 (1937).

Employee who for 18 months was required to stand over a melting pot in connection with his duties, and on specified date became sick, was not entitled to recover compensation for alleged ailment, since ailment was the gradual result of breathing fumes for a period of 18 months, and not the result of a single occurrence. Gabbard v. Proctor & Gamble Defense Corp., 184 Tenn. 464, 201 S.W.2d 651, 1947 Tenn. LEXIS 398 (1947).

An accident is an event or happening in the nature of a misfortune, casual or fortuitous. Benjamin F. Shaw Co. v. Musgrave, 189 Tenn. 1, 222 S.W.2d 22, 1949 Tenn. LEXIS 394 (1949); Railway Express Agency, Inc. v. Clark, 194 F.2d 29, 1952 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1952).

Employee was not entitled to recover for loss of vision due to removal of eye after rock struck the eye where medical evidence showed that removal of eye was due to diseased blood vessel. Craig v. Marquette Cement Mfg. Co., 190 Tenn. 234, 229 S.W.2d 148, 1950 Tenn. LEXIS 473 (1950).

Neurosis due to being struck on neck by employer's truck while engaged in moving barricade was compensable. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

Stroke sustained at home by employee in failing health after doing normal work during day was not compensable though he had headache on the job. McMahan v. Travelers Ins. Co., 114 F. Supp. 286, 1953 U.S. Dist. LEXIS 3960 (D. Tenn. 1953).

Where deceased suffered a heart attack and died while unloading plumbing fixtures, his death was attributable to an accidental injury arising out of and in the course of his employment and was compensable under this act. Patterson Transf. Co. v. Lewis, 195 Tenn. 474, 260 S.W.2d 182, 1953 Tenn. LEXIS 417 (1953).

Under Tennessee law, a heart attack brought about or aggravated by the exertion of work of an employee is an accident within the meaning of this statute. Aetna Casualty & Surety Co. v. Johnson, 278 F.2d 200, 1960 U.S. App. LEXIS 4678 (6th Cir. Tenn. 1960).

An accident is generally an unlooked for mishap, an untoward event, which is not expected or designed. Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65, 1961 Tenn. LEXIS 353 (1961).

Gradually occurring traumatic injury to ulnar nerve as a result of repeated movement of such nerve in and out of groove it normally occupied while employee was operating machine as required by his employment was an accidental injury and not an occupational disease. Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65, 1961 Tenn. LEXIS 353 (1961).

“Injury” as applied to a personal injury to a human being includes whatever lesion or change to any part of the system produces harm or lessened facility of the natural use of any bodily activity or capability. Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65, 1961 Tenn. LEXIS 353 (1961).

If ordinary exertion or usual strain produces an unusual result, the resulting injury is by accident and is compensable. Huey Bros. Lumber Co. v. Kirk, 210 Tenn. 170, 357 S.W.2d 50, 1962 Tenn. LEXIS 420 (1962); Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964).

When a condition has developed gradually over a period of time resulting in a definite work-connected, unexpected, fortuitous injury, it is an “accident” within the terms of the statute. Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964).

Where employee gradually developed a protruded or herniated disc as a result of strain or exertion involved in lifting heavy freight, such injury was compensable. Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964).

An accidental injury is an unusual, fortuitous or unexpected happening causing an injury which is accidental in character. Travelers Ins. Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 1965 Tenn. LEXIS 543 (1965); Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968); Electro--Voice, Inc. v. O'Dell, 519 S.W.2d 395, 1975 Tenn. LEXIS 705 (Tenn. 1975).

Where handling of heavy hides in tanning operation resulted in disability from pressure on nerve of hand of employee, such disability constituted injury by accident. A. C. Lawrence Leather Co. v. Britt, 220 Tenn. 444, 414 S.W.2d 830, 1967 Tenn. LEXIS 425 (1967), rehearing denied, 220 Tenn. 457, 418 S.W.2d 660, 1967 Tenn. LEXIS 426 (1967).

The courts will not attempt to lay down an exclusive definition of the word “accident” although they will observe certain boundaries including the requirement that the injury must be unexpected. Kroger Co. v. Johnson, 221 Tenn. 649, 430 S.W.2d 130, 1967 Tenn. LEXIS 363 (1967).

Severe cramping and pain in feet and legs which resulted from standing and lifting were conditions which would normally be expected to develop in person having flat feet and such cramping and pain would not be considered as result of injury by accident to employee having such foot condition even though standing and lifting was part of his employment. Kroger Co. v. Johnson, 221 Tenn. 649, 430 S.W.2d 130, 1967 Tenn. LEXIS 363 (1967).

The mere manifestation of a heart condition without proof of any strain or over-exertion at work does not show an accidental injury even though the development of the heart disease may have been hastened by the employee's usual and ordinary work. Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968); Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760, 1968 Tenn. LEXIS 470 (1968).

When an employee's work exposes him to an elemental force and requires him to continue to work under the risk of the hazard which the elemental force creates, the employee is to be compensated for injuries which result therefrom. Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969).

An employee who was required to assume a certain posture by her employment which increased the pain of a previously suffered injury which was not related to her employment, did not sustain an “accident” within the meaning of this section. Boling v. Raytheon Co., 223 Tenn. 528, 448 S.W.2d 405, 1969 Tenn. LEXIS 439 (1969).

An accidental injury is one which cannot be reasonably anticipated, is unexpected and is precipitated by unusual combinations of fortuitous circumstances. A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141, 1970 Tenn. LEXIS 329 (1970).

If the usual strain or exertion of work produces an unusual result, the resulting injury is by accident. A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141, 1970 Tenn. LEXIS 329 (1970).

Where employee was required to assume an unusual position in digging a ditch and such strain resulted in back injury, employee suffered injury by accident. A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141, 1970 Tenn. LEXIS 329 (1970).

Compensation is allowable for conditions which do not occur instantaneously as the result of one accident but develop gradually over varying periods of time resulting from repeated work related incidents. St. Paul Ins. Co. v. Waller, 524 S.W.2d 478, 1975 Tenn. LEXIS 666 (Tenn. 1975).

Where the usual strain or exertion of work causes an unusual result, such an injury is “by accident” under this section. Continental Ins. Co. v. Dowdy, 560 S.W.2d 619, 1978 Tenn. LEXIS 570 (Tenn. 1978).

“Injury by accident” does not embrace every stress or strain of daily living or every undesirable experience encountered in carrying out the duties of a contract of employment. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

Workers' compensation coverage is not as broad as general, comprehensive health and accident insurance. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

A very liberal interpretation has been given in this state to the statutory requirement of “injury by accident.” Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979); Mays v. United States Fed. & Guar. Co., 672 S.W.2d 773, 1984 Tenn. LEXIS 819 (Tenn. 1981).

47. —Failure to Show Compensable Accident.

Where plaintiff claimed that long hours and work stress of a general nature exacerbated his heart condition, he failed to show that he suffered a compensable “accident” within the meaning of the Workers' Compensation Law, T.C.A. § 50-6-101 et seq.Sexton v. Scott County, 785 S.W.2d 814, 1990 Tenn. LEXIS 122 (Tenn. 1990).

48. —False Medical Information.

False medical information will bar recovery under the workers' compensation statute if employer shows: (1) That the employee knowingly and willfully made a false representation of his physical condition; (2) That the employer relied on the false representation and that this reliance was a substantial factor in the decision to hire; and (3) That there is a causal connection between the false representation and the injury subsequently suffered by the employee. Bane v. Daniel Constr. Co., 793 S.W.2d 256, 1990 Tenn. LEXIS 278 (Tenn. 1990).

49. —Causal Connection — Meaning.

The burden rests upon the employee to show a causal connection between his injury and his employment, but by “causal connection” is meant not proximate cause as used in the law of negligence, but cause in the sense that the accident had its origin in the hazards to which the employment exposed the employee while doing his work. Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977, 1951 Tenn. LEXIS 374 (1951).

There must be a causal connection between a worker's accidental injury and his death and the nature of his employment. McCann Steel Co. v. Carney, 192 Tenn. 94, 237 S.W.2d 942, 1951 Tenn. LEXIS 386 (1951).

Where doctor testified that employee complained of increasing pain in abdomen following a fall, a ruptured appendix was causally related to the fall, even though there was no direct evidence that fall actually caused the ruptured appendix, since absolute certainty was not required to support award. Great American Indem. Co. v. Friddell, 198 Tenn. 360, 280 S.W.2d 908, 1955 Tenn. LEXIS 381 (1955).

Question of whether accident suffered by workman initiated gall bladder and liver trouble of worker or merely aggravated it was immaterial where there was a causal relation between the initiating accident and the resultant disability and the inception of plaintiff's disability was assignable to the accident. Kitts v. American Mut. Liability Ins. Co., 133 F. Supp. 937, 1955 U.S. Dist. LEXIS 2971 (D. Tenn. 1955).

Where medical evidence did not establish causal connection between injury to truck driver's hip and side, award for total and permanent disability caused by lung cancer was not justified. American Casualty Co. v. Ball, 211 Tenn. 608, 366 S.W.2d 773, 1963 Tenn. LEXIS 384 (1963).

Question of causal connection between injury and employment is one of fact. Cas Walker's Cash Stores, Inc. v. Livesay, 215 Tenn. 306, 385 S.W.2d 745, 1965 Tenn. LEXIS 618 (1965).

There must be a causal connection between the worker's accidental injury or death and the nature of his employment. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965); Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969).

Causal connection is cause in the sense the accident had its origins in the hazards to which the employment exposed the employee while doing his work. Lawrenceburg v. Nelson, 219 Tenn. 177, 407 S.W.2d 674, 1966 Tenn. LEXIS 516 (1966).

The question of causal connection is one of fact and review of trial court on this point will only be for sole purpose of determining if there is material evidence to support findings. Poe v. E. I. Dupont Denemours & Co., 224 Tenn. 683, 462 S.W.2d 480, 1970 Tenn. LEXIS 392 (1970).

Where employee fainted and was nauseous while being treated for an on the job injury to her ankle and shortly after she felt stiffness of the neck, the evidence was sufficient to establish a causal connection between stress during treatment of the ankle injury and the rupture of a pre-existent aneurism. Elmore's Variety Store v. White, 553 S.W.2d 350, 1977 Tenn. LEXIS 581 (Tenn. 1977).

Where employee had recently assumed a new job involving heavier work, and experienced a sudden pain in her shoulder while flinging a pair of overalls onto a rack, which was a usual action required in her new job, there was sufficient evidence of a causal connection between her injury and her work. Continental Ins. Co. v. Dowdy, 560 S.W.2d 619, 1978 Tenn. LEXIS 570 (Tenn. 1978).

Where the cause of a fall is due to some condition personal to the employee, and is not causally related to some hazard incident to the conditions of the employment, injury resulting therefrom is not compensable under workers' compensation statutes. Dickerson v. Trousdale Mfg. Co., 569 S.W.2d 803, 1978 Tenn. LEXIS 628 (Tenn. 1978).

In many of the cases where recovery has been allowed for myocardial infarctions, although not in all, some unusual or sudden event involving emotional stress, fright or shock could be pointed to as the precipitating event. In others, the statutory provisions did not include a requirement of injury by accident. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

When emotional stress that accompanies the performance of the employment contract is “within the bounds of the ups and downs of emotional normal human experience”, courts frequently decline to impose liability upon employers for conditions resulting from “cumulated” strain. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

Absent either physical exertion or some acute, sudden or unexpected emotional stress directly attributable to employment, an industrial accident should not be deemed to have occurred, even though worry, anxiety or emotional stress of a general nature may have preceded the onset of a myocardial infarction. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

Mental stimulus, such as fright, shock or excessive unexpected anxiety resulting in injury might justify a compensation award. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

In determining whether an accident arose out of and in the course of employment, the relation of the employment to the injury is the essential point of inquiry, liability for workers' compensation is not based upon any act or omission of the employer. Thus, the law of tort causation, wherein liability is predicated upon fault and nullified by contributory fault, is not applicable in workers' compensation cases. Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

The court was unwilling to find that the shift of hours that an employer has available for an employee can be considered to provide a causal connection between the conditions under which the work is performed and an employee's inability to discipline his personal life. Henley v. Roadway Express, 699 S.W.2d 150, 1985 Tenn. LEXIS 561 (Tenn. 1985).

There was no causal connection between the conditions under which work was required to be performed and the resulting injury where the claimant suffered a severe and unusual reaction from ingesting a substance to enhance his work performance where the substance was not found in the workplace, was not supplied by the employer, nor was the use of the substances explicitly or implicitly required by the employment. Arden v. Hutch Mfg. Co., 771 S.W.2d 406, 1989 Tenn. LEXIS 188 (Tenn. 1989).

Refusal to award medical expenses to employee in a workers'  compensation action was appropriate pursuant to T.C.A. § 50-6-102 because he failed to exercise due care and was negligent in placing his hand on the hot burner of the stove in his kitchen which operated to relieve the employer of liability for medical expenses incurred in treating the injuries from his negligent act; when employee disregarded his disabled condition and placed his fingers on the hot stove, responsibility for the accident and its consequences could no longer fairly be ascribed to his original compensable injury. Anderson v. Westfield Group, 259 S.W.3d 690, 2008 Tenn. LEXIS 532 (Tenn. Aug. 12, 2008).

Workers'  compensation award based on a claimant's workplace smoke inhalation was error because the claimant suffered from bulla emphysema from his cigarette smoking, and the evidence preponderated against a finding that the workplace smoke inhalation advanced the claimant's preexisting bulla emphysema; there was no evidence that the claimant's breathing limits were the direct result of damage to his remaining lung tissue caused by smoke he inhaled at the workplace and the plain meaning of the expert testimony was that the surgery was performed to treat the bullous emphysema and not the smoke inhalation. Although one doctor stated that the smoke inhalation contributed to and aggravated the claimant's emphysema, he did not state that the smoke inhalation itself advanced the severity of the claimant's preexisting condition or cause a new distinct injury. McGowan v. State, — S.W.3d —, 2012 Tenn. LEXIS 65 (Tenn. Feb. 15, 2012), review denied, — S.W.3d —, 2012 Tenn. LEXIS 70 (Tenn. Feb. 15, 2012).

Finding that an employee established causation for his injury arising from a spinal infection was proper based on the expert medical testimony; the claimant's treating surgeon stated that trauma could have been a “participating” or “contributing” factor in the development of infection and that the claimant's medical history made him more vulnerable to an infection. A second doctor testified unequivocally that the claimant's injury at work led to a hematoma, which then served as a “breeding ground” for his spinal infection, and, although the second doctor's testimony was more equivocal as to causation, he testified that the work-related injury “more likely” aggravated an ongoing infection. Stewart v. Westfield Ins. Co., — S.W.3d —, 2012 Tenn. LEXIS 66 (Tenn. Feb. 16, 2012), aff'd, — S.W.3d —, 2012 Tenn. LEXIS 67 (Tenn. Feb. 16, 2012).

Appellate court declined to apply the causation standard of an amended statute retroactively to an employee's injury in a workers'  compensation case. Marvel v. Roane Transp. Servs., LLC, — S.W.3d —, 2015 Tenn. LEXIS 587 (Tenn. July 23, 2015), aff'd, Marvel v. Roane Transp. Servs., — S.W.3d —, 2015 Tenn. LEXIS 586 (Tenn. July 23, 2015).

50. —Employment as Means of Accident.

The purpose of the Workers' Compensation Act is to afford protection against accidental results, and, broadly speaking, under such statute, the employment itself is the means of the accident, and the employment, of course, is never accidental. Scott v. Metropolitan Life Ins. Co., 169 Tenn. 351, 87 S.W.2d 1011, 1935 Tenn. LEXIS 53 (1935).

Where employee, after becoming ill with pains in chest and arms, was sent to company infirmary where he rested for approximately two hours and was then sent back to work, and later that day died from a heart attack while working, his death arose out of and in the course of his employment although he was doing nothing but his ordinary work. Johnson v. Aetna Casualty & Surety Co., 174 F. Supp. 308, 1959 U.S. Dist. LEXIS 3037 (D. Tenn. 1959), aff'd, 278 F.2d 200, 1960 U.S. App. LEXIS 4678 (6th Cir. Tenn. 1960).

Where worker would have completely recovered from an attack of edema occurring on the job except for an operation performed for correction of heart disease having no connection with his employment, evidence was not sufficient to establish causal connection between employment and disability. E. I. Du Pont De Nemours & Co. v. Kessler, 208 Tenn. 224, 345 S.W.2d 663, 1961 Tenn. LEXIS 414 (1961).

Recovery of benefits is proper for death due to a heart attack immediately precipitated by acute or sudden emotional stress as opposed to physical exertion, where the necessary causal connection is properly established by the proof. Cabe v. Union Carbide Corp., 644 S.W.2d 397, 1983 Tenn. LEXIS 601 (Tenn. 1983).

51. —Two or More Accidents Causing Injury.

A disability is nonetheless an injury by accident when it results from a series of accidents, each specific and ascertainable, although its exclusive influence in the resulting disability cannot be fixed precisely. Burton v. Miller Bros. Co., 166 Tenn. 622, 64 S.W.2d 195, 1933 Tenn. LEXIS 127 (1933).

While an accidental injury must be assignable to a particular time and place, the rule is satisfied if each of several accidents, assigned as the combined or alternative causes of a disability, can be thus localized and identified. Burton v. Miller Bros. Co., 166 Tenn. 622, 64 S.W.2d 195, 1933 Tenn. LEXIS 127 (1933).

It is not necessary that the happening of the accident be a single occurrence identified in space or time. Benjamin F. Shaw Co. v. Musgrave, 189 Tenn. 1, 222 S.W.2d 22, 1949 Tenn. LEXIS 394 (1949).

Where there are two equally probable causes of death, one which would impose liability and the other which would not, the plaintiff must fail since the burden of proof to establish accidental death rests upon him. Railway Express Agency, Inc. v. Clark, 194 F.2d 29, 1952 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1952).

Where permanent and total loss of use of eye was the result of two accidents occurring while employee was in employ of different employers and under testimony it was impossible to allocate any particular part of the loss to any particular employer, chancellor's finding of joint and several liability on part of both employers was correct. J. E. Greene Co. v. Bennett, 207 Tenn. 635, 341 S.W.2d 751, 1960 Tenn. LEXIS 503 (1960), overruled in part, Indiana Lumberman's Mut. Ins. Co. v. Ray, 596 S.W.2d 816, 1980 Tenn. LEXIS 434 (Tenn. 1980).

The last employer or insurance carrier will be liable in full for any permanent disability resulting from the last of successive injuries under different employers or insurance carriers. Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969).

52. —Prima Facie Case of Accident — Effect.

Where the claimant had made out a prima facie case, the employer is required to go forward and negative this prima facie case. This may either be done by showing the cause of death or by showing other causes equally probable. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

Where an employee is found dead at his post of labor, without direct evidence as to the manner of his death, an inference may arise of an accident springing out of and in the course of his employment. In other words a prima facie case for the claimant is thus supported. When such a prima facie case is thus made out the burden shifts to the employer to produce evidence to overthrow it. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

The defendant is not called upon to introduce any proof or make any explanation as to the death of the employee except where the facts alleged make a prima facie case. Farris v. Yellow Cab Co., 189 Tenn. 46, 222 S.W.2d 187, 1949 Tenn. LEXIS 397 (1949).

Where there was substantial evidence that the decedent was in good health prior to his death and upon the very morning of his death, that he had sustained a serious fall after propelling a handtruck and handling several crates which weighed between 25 and 35 pounds and that immediately after the fall there was a bruise on his head which might have been the cause of his death, the evidence was sufficient to create a prima facie case of accident, and the trial court's finding that death was due to an accident was not clearly erroneous, notwithstanding the employer's contention that the medical evidence established the cause of death as heart seizure. Railway Express Agency, Inc. v. Clark, 194 F.2d 29, 1952 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1952).

Prima facie case of compensable death was shown where miner found dead in mine had shoveled 18 tons of coal from kneeling position. Phillips v. Eureka Casualty Co., 133 F. Supp. 630, 1955 U.S. Dist. LEXIS 2930 (D. Tenn. 1955), aff'd, 233 F.2d 743, 1956 U.S. App. LEXIS 3202 (6th Cir. Tenn. 1956).

Where an employee is found dead at his post of labor without direct evidence as to the manner of his death an inference may arise of an accident springing out of and in the course of his employment and when a prima facie case is thus made out the burden shifts to the employer to overturn such prima facie case. Eureka Casualty Co. v. Phillips, 233 F.2d 743, 1956 U.S. App. LEXIS 3202 (6th Cir. Tenn. 1956).

53. —Disease or Condition Contributing to Injury.

A cook, becoming faint from overheated kitchen, stepped into an alley for fresh air and falling was injured by a passing truck. He was entitled to recover. Patten Hotel Co. v. Milner, 145 Tenn. 632, 238 S.W. 75, 1921 Tenn. LEXIS 101 (1921).

Where epilepsy, or other physical disturbances, suddenly and without expectation occur and contribute to cause an injury to an employee while at work the same should be held compensable, provided there is present another hazard, incident to the employment, which is generally known to exist and which is shown to be the immediate cause of the accident. Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977, 1951 Tenn. LEXIS 374 (1951).

Sickness, or any idiopathic condition, is considered as a “remote cause;” if another cause, incident to the employment, is present and is the immediate cause of the injury and death it is an injury “arising out of,” the employment. McCann Steel Co. v. Carney, 192 Tenn. 94, 237 S.W.2d 942, 1951 Tenn. LEXIS 386 (1951).

A predisposition toward an injury will not bar a claimant from workers' compensation. Bush Bros. & Co. v. Williams, 197 Tenn. 334, 273 S.W.2d 137, 1954 Tenn. LEXIS 491 (1954).

Where tension or fatigue of work accelerated or triggered a cerebral thrombosis, causing the employee to faint, striking his head upon the floor, resulting in a fractured skull, which caused his death, the employee's death was caused by an accident while in the performance of his duties and was compensable. Whitehead v. Aluminum Co., 239 F. Supp. 415, 1965 U.S. Dist. LEXIS 7060 (E.D. Tenn. 1965), aff'd, Whitehead v. Aluminum Co. of America, 361 F.2d 620, 1966 U.S. App. LEXIS 5862 (6th Cir. Tenn. 1966).

The death of a worker who was caused to fall by a cerebral thrombosis, fracturing his skull, was due to an accident arising out of and in the course of his employment. Whitehead v. Aluminum Co. of America, 361 F.2d 620, 1966 U.S. App. LEXIS 5862 (6th Cir. Tenn. 1966).

54. —Aggravation of Preexisting Condition.

Compensation may be properly awarded for disability resulting from aggravation of a preexisting heart disorder by an accidental injury. Sanders v. Blue Ridge Glass Corp., 161 Tenn. 535, 33 S.W.2d 84, 1930 Tenn. LEXIS 40 (1930); Anderson v. Volz Const. Co., 183 Tenn. 169, 191 S.W.2d 436, 1946 Tenn. LEXIS 197 (1946); Lucey Boiler & Mfg. Corp. v. Hicks, 188 Tenn. 700, 222 S.W.2d 19, 1949 Tenn. LEXIS 393 (1949).

Preexisting weakness or disease will not prevent injury from being result of accident, and acceleration or aggravation of preexisting ailment may be compensable injury. Cambria Coal Co. v. Ault, 166 Tenn. 567, 64 S.W.2d 18, 1933 Tenn. LEXIS 118 (1933).

Dependents of an injured employee were entitled to compensation, where the injury either caused his death or accelerated an existing cancer or other malady, thereby causing his death. Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, 1937 Tenn. LEXIS 16 (1938).

Evidence to the effect that worker suffered from diseased blood vessels prior to his death but prior to the time of his death had performed his work and was apparently undisturbed by his condition supported the finding of the trial judge that his death was the result of a fall while on the job which induced the rupture of the blood vessels. Riverside Mill Co. v. Parsons, 176 Tenn. 381, 141 S.W.2d 895, 1939 Tenn. LEXIS 128 (1940).

Death of employee which occurred without warning while making manholes on a hot day was not compensable where medical evidence showed that cause of death was the sudden cutting off of blood supply as result of diseased heart. Anderson v. Volz Const. Co., 183 Tenn. 169, 191 S.W.2d 436, 1946 Tenn. LEXIS 197 (1946).

Injured back from lifting side of beef, though due to a congenital weak back, is compensable. Swift & Co. v. Howard, 186 Tenn. 584, 212 S.W.2d 388, 1948 Tenn. LEXIS 585 (1948).

When an employer employs a worker he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a perfectly normal, healthy person. If the injury is the proximate cause of the disability and excites and aggravates a previous weakened condition, then the employer is liable. Swift & Co. v. Howard, 186 Tenn. 584, 212 S.W.2d 388, 1948 Tenn. LEXIS 585 (1948).

Ruptured aneurism of aorta 55 minutes after accidental injury to finger and 10 minutes after amputation of finger was compensable, though walls of aorta had been weakened by disease of syphilis, where there was testimony by expert witnesses that ruptured aneurism could have been due to excitement from accident. Lucey Boiler & Mfg. Corp. v. Hicks, 188 Tenn. 700, 222 S.W.2d 19, 1949 Tenn. LEXIS 393 (1949).

Disability resulting from an untoward event, which we commonly refer to as an accident, that hastens the onset of an affliction or aggravates a preexisting disease, is compensable. Howell v. Charles H. Bacon Co., 98 F. Supp. 567, 1951 U.S. Dist. LEXIS 2266 (D. Tenn. 1951), aff'd, 197 F.2d 333, 1952 U.S. App. LEXIS 2625 (6th Cir. Tenn. 1952).

In an action to recover death benefits under the Workers' Compensation Law, the stronger inference was that the injury of decedent and the inseparable consequences of ceaseless pain and worry and nervous tension aggravated a preexisting coronary sclerosis and hastened his death, and the death was held compensable. Howell v. Charles H. Bacon Co., 98 F. Supp. 567, 1951 U.S. Dist. LEXIS 2266 (D. Tenn. 1951), aff'd, 197 F.2d 333, 1952 U.S. App. LEXIS 2625 (6th Cir. Tenn. 1952).

Where the evidence showed that the employee died of blood poisoning resulting from a cut received in the course of his employment, the death arose out of and in the course of the employment, in spite of the fact that the employee was suffering from leukemia, and would eventually have died from that disease. McCann Steel Co. v. Carney, 192 Tenn. 94, 237 S.W.2d 942, 1951 Tenn. LEXIS 386 (1951).

Where an accident can be fairly considered to be a contributing cause of death, it is compensable under the statute, even though the injured employee was suffering from some prior disability of a serious nature. Boyd v. Young, 193 Tenn. 272, 246 S.W.2d 10, 1951 Tenn. LEXIS 354, 1951 Tenn. LEXIS 355 (1951).

Where it is doubtless true that sooner or later an employee would have died from a cancer, with which he was afflicted, the case is still compensable if an accident in the course of his employment so accelerated or aggravated the cancer that the accident was a contributing cause to the shortening of his life. Boyd v. Young, 193 Tenn. 272, 246 S.W.2d 10, 1951 Tenn. LEXIS 354, 1951 Tenn. LEXIS 355 (1951).

If a blow inflicted upon the leg injures that leg by aggravating a preexisting disease it is no less an injury received from the blow, within the meaning of the statute, than it would have been if there had been no preexisting disease. Ledford v. Miller Bros. Co., 194 Tenn. 467, 253 S.W.2d 552, 1952 Tenn. LEXIS 405 (1952).

Death of employee from coronary occlusion as result of overworking on a hot day was compensable since exertion aggravated diseased heart condition and hastened his death. Jenkins v. American Mut. Liability Ins. Co., 113 F. Supp. 250, 1953 U.S. Dist. LEXIS 2558 (D. Tenn. 1953).

Employer takes employee in the condition in which he is employed and assumes risk of having any weakened condition aggravated or accelerated by employment, therefore even though employee dies of predisposed disease, if it is shown by expert testimony that physical exertion on the job was a contributing and accelerating factor, a compensable case is made which is not speculative. Heron v. Girdley, 198 Tenn. 110, 277 S.W.2d 402, 1955 Tenn. LEXIS 341 (1955).

Employee may be compensated where peptic ulcer was caused to rupture by strain of work. London & Lancashire Indem. Co. v. Starcher, 202 Tenn. 278, 304 S.W.2d 87, 1957 Tenn. LEXIS 389 (1957).

Recovery may be had for aggravation of preexisting condition where such issue is raised by the evidence, even though the employee does not allege such ground in his pleading or seek at the outset to recover on this theory. Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 315 S.W.2d 245, 1958 Tenn. LEXIS 230 (1958).

Evidence that heat stroke occurring in course of employment aggravated a preexisting arteriosclerosis condition was sufficient to make out a compensable injury. Eslinger v. Miller Bros. Co., 203 Tenn. 688, 315 S.W.2d 261, 1958 Tenn. LEXIS 236 (1958).

If the physical activity and exertion of an employee's work aggravates a preexisting heart condition, precipitates a fatal heart attack and thus hastens his death, such death is the result of accident arising out of and in the course of the employment. Nashville Pure Milk Co. v. Rychen, 204 Tenn. 575, 322 S.W.2d 432, 1958 Tenn. LEXIS 277 (1958); Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959); Sweat v. United States Fidelity & Guaranty Co., 169 F. Supp. 155, 1959 U.S. Dist. LEXIS 3816 (E.D. Tenn. 1959), aff'd, 272 F.2d 943, 1959 U.S. App. LEXIS 2913 (6th Cir. Tenn. 1959); Huey Bros. Lumber Co. v. Kirk, 210 Tenn. 170, 357 S.W.2d 50, 1962 Tenn. LEXIS 420 (1962).

Where an employer employs a worker, he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not affect a normal person. Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959); Combustion Engineering Co. v. Blanks, 210 Tenn. 233, 357 S.W.2d 625, 1962 Tenn. LEXIS 428 (1962); Fidelity & Casualty Co. v. Treadwell, 212 Tenn. 1, 367 S.W.2d 470, 1963 Tenn. LEXIS 393 (1963); American Surety Co. v. Kizer, 212 Tenn. 328, 369 S.W.2d 736, 1963 Tenn. LEXIS 426 (1963); Fink v. Caudle, 856 S.W.2d 952, 1993 Tenn. LEXIS 378 (Tenn. 1993).

Where evidence sustained finding of trial court that employee's fall from bakery truck in the course of his employment aggravated preexisting cirrhosis of the liver and resulted in permanent partial disability of 75 percent of the whole body, causal connection was established between the employment and the injury so that employee was entitled to compensation. Martha White Bakeries, Inc. v. Vance, 204 Tenn. 491, 322 S.W.2d 206, 1959 Tenn. LEXIS 302 (1959).

Where evidence sustained the finding that worker who had preexisting condition of berry aneurysm died from the rupture of a blood vessel while using a power saw in the course of his employment, such death was compensable. Huey Bros. Lumber Co. v. Kirk, 210 Tenn. 170, 357 S.W.2d 50, 1962 Tenn. LEXIS 420 (1962).

Traumatic aggravation of otherwise noncompensable disease as result of employment was compensable. Combustion Engineering Co. v. Blanks, 210 Tenn. 233, 357 S.W.2d 625, 1962 Tenn. LEXIS 428 (1962).

Where last injury resulted from the aggravation of a prior injury received while working for another employer and in proceeding for compensation from the last employer it was determined that the disability was attributable to the injury received while working for such employer, such employer could not bring action for contribution against the first employer. Baxter v. Smith, 211 Tenn. 347, 364 S.W.2d 936, 1962 Tenn. LEXIS 360 (1962).

Disability resulting from aggravation of a preexisting disease or condition is compensable. American Surety Co. v. Kizer, 212 Tenn. 328, 369 S.W.2d 736, 1963 Tenn. LEXIS 426 (1963).

Where worker reported to work in apparent good health and about an hour later suffered a rupture of a hemangioma or vascular tumor located on the left cerebral hemisphere while working as a ripsaw operator and there was medical testimony that such physical exertion could produce the rupture, evidence sustained finding of trial judge that death of employee resulted from accidental injury arising out of and in the course of his employment. Morristown Chest Co. v. Morgan, 212 Tenn. 441, 370 S.W.2d 513, 1963 Tenn. LEXIS 439 (1963).

Although driving a tractor-trailer rig may have aggravated claimant's diseased heart condition, under Tennessee law it was not enough to establish that his death was due to an accident arising out of and in the course of his employment; in addition, preponderance of evidence must show driving the truck aggravated plaintiff's diseased condition and that his death was accelerated as a proximate result of such aggravation. Kirby v. Dance Freight Lines, 226 F. Supp. 947, 1964 U.S. Dist. LEXIS 6452 (E.D. Tenn. 1964).

Proof failed to show that death of plaintiff's intestate, which followed driving tractor-trailer rigs for employer, was caused by an accident arising out of or in the course of his employment or that his heart trouble was aggravated to the extent that it shortened his life or accelerated his death. Kirby v. Dance Freight Lines, 226 F. Supp. 947, 1964 U.S. Dist. LEXIS 6452 (E.D. Tenn. 1964).

Where, due to cerebral thrombosis, which was aggravated, accelerated or triggered by his work, employee became dizzy and immediately fell to the floor, sustaining skull fracture which was the primary cause of death, employee met with an accident while in performance of his duties, for purposes of workers' compensation. Whitehead v. Aluminum Co., 239 F. Supp. 415, 1965 U.S. Dist. LEXIS 7060 (E.D. Tenn. 1965), aff'd, Whitehead v. Aluminum Co. of America, 361 F.2d 620, 1966 U.S. App. LEXIS 5862 (6th Cir. Tenn. 1966).

Where decedent, driver of tractor-trailer rig, died at his home after returning from a long and strenuous trip which placed unusual stress on his preexisting diseased heart, the widow was entitled to recover, as her husband's death arose out of and in the course of his employment. Treadway v. Associated Transport, Inc., 302 F. Supp. 301, 1969 U.S. Dist. LEXIS 9847 (E.D. Tenn. 1969).

An employer takes an employee as he finds him so that employer is liable for disabilities resulting from injuries sustained by employee arising out of and in the course of his employment even though it aggravates a previous condition with resulting disability far greater than otherwise would have been the case. Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969); Newport v. Webb, 223 Tenn. 445, 446 S.W.2d 683, 1969 Tenn. LEXIS 430 (1969); Blalock v. Williams, 483 S.W.2d 578, 1972 Tenn. LEXIS 366 (Tenn. 1972).

Where, while securing chicken coops on truck in course of his employment, employee suffered attack of angina pectoris which aggravated and accelerated preexisting arteriosclerotic heart disease and contributed to coronary occlusion, employee suffered injury by accident in course of employment. R. E. Butts Co. v. Powell, 225 Tenn. 119, 463 S.W.2d 707, 1971 Tenn. LEXIS 284 (1971).

When an employer employs a worker he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a normal, healthy person, but such injury must be the proximate cause of the workers' disability to be compensable. Blalock v. Williams, 483 S.W.2d 578, 1972 Tenn. LEXIS 366 (Tenn. 1972).

Unrebutted statement in death certificate filled out by company doctor that cause of death of employee was “acute coronary thrombosis” due to “coronary atherosclerosis”, together with testimony of physician that if employee had preexisting condition of atherosclerosis then the work he was performing could contribute to accelerate his fatal heart attack was sufficient to support finding of chancellor that there was a causal connection between work employee was performing and his death by heart attack suffered on job. Boles v. Aluminum Co. of America, 483 S.W.2d 582, 1972 Tenn. LEXIS 368 (Tenn. 1972).

The exertion of unloading heavy boxes from a truck aggravated a preexisting condition of arteriosclerosis causing a heart attack which was an injury arising out of and in the course of employment and there was a causal connection therein. Palmer v. Pruitt, 498 S.W.2d 89, 1973 Tenn. LEXIS 453 (Tenn. 1973).

In an action for compensation for permanent partial disability as a result of a ruptured disc, evidence of rheumatoid arthritis in the joints of the arms and legs did not support an award for aggravation of the preexisting condition of rheumatoid arthritis. Murray Ohio Mfg. Co. v. Vines, 498 S.W.2d 897, 1973 Tenn. LEXIS 463 (Tenn. 1973).

Where employee suffered a myocardial infarction while at work, his subsequent death was covered by the act even though exertion at work only aggravated a preexistent condition, and even though the exertion was no more than the job ordinarily required. Kingsport Press, Inc. v. Van Huss, 547 S.W.2d 572, 1977 Tenn. LEXIS 566 (Tenn. 1977).

Where the employee's arthritic condition was aggravated and made symptomatic by the bending, stooping, lifting, reaching and twisting motions required by the job assignment he was given, his injury was included within the definition of an accident. Laminite Plastics Mfg. Co. v. Greene, 561 S.W.2d 458, 1978 Tenn. LEXIS 583 (Tenn. 1978).

Although there was no evidence in record that the last act performed before the onset of pain was the cause of the injury, it is reasonable to conclude that a back injury sustained shortly after doing heavy work was caused by the work, as the injured person suffered from a degenerative disorder which can be aggravated by such work. American Precision, Inc. v. Ottinger, 562 S.W.2d 818, 1978 Tenn. LEXIS 594 (Tenn. 1978).

Where an employer employs a worker, he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not affect a normal person. See Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

Employee's previous back injury, for which he received compensation for approximately seven to eight percent permanent disability, did not preclude an award for disability resulting from the current injury to his back. Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

Defendant employer which employed plaintiff with a preexisting weakened condition (diabetes), which generally made him more susceptible to infections, was not liable for aggravation of an infection that plaintiff contracted from some source other than work and which has not been shown to be employment-related even though aggravation may have been caused by working conditions. Bowers v. Liberty Mut. Ins. Co., 580 S.W.2d 787, 1979 Tenn. LEXIS 432 (Tenn. 1979).

If a work related accident aggravates an idiopathic condition, causing injury or death, or if it is a contributing cause, compensation is available. Hall v. Auburntown Industries, Inc., 684 S.W.2d 614, 1985 Tenn. LEXIS 468 (Tenn. 1985).

The last successive employer or insurance carrier, taking the employee as he is found at the time of the accident, will be liable for the entire resulting disability, including all medical expenses arising from the disability and regardless of any preexisting condition. Bennett v. Howard Johnsons Motor Lodge, 714 S.W.2d 273, 1986 Tenn. LEXIS 779 (Tenn. 1986).

The aggravation of a preexisting nervous condition by a physical injury is compensable. Thomas v. Aetna Life & Casualty Co., 812 S.W.2d 278, 1991 Tenn. LEXIS 246 (Tenn. 1991).

Physical or mental injuries caused by worry, anxiety or emotional stress of a general nature or ordinary stress associated with the worker's occupation are not compensable; the injury must have resulted from an incident of abnormal and unusual stressful proportions, rather than the day to day mental stresses and tensions to which workers in that field are occasionally subjected. Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 2001 Tenn. LEXIS 140 (Tenn. 2001), rehearing denied, Cunningham v. Shelton Sec. Serv., Inc. , — S.W.3d —, 2001 Tenn. LEXIS 381 (Tenn. 2001).

55. —Alcoholics.

Where an employee, with a five-year history of alcoholism and related diseases, including pancreatitis and cirrhosis of the liver, while on duty as a policeman, fell on an icy street, which aggravated degenerative arthritis in his back and neck causing extreme pain and preventing him from working, and he then began drinking more heavily until six months later, after acute delirium tremens, a marked enlargement of the liver and a collapse, he was admitted to the hospital in a comatose state and died of acute necrotizing pancreatitis contributed to by bilateral lobular pneumonia and cirrhosis, the court held that his fall which occurred in the course of his employment was the proximate cause of his death, that he was not guilty of willful misconduct or intentional self-inflicted injury as defined by § 50-6-110, and that his survivor was entitled to recover full compensation for his injury and death. Wheeler v. Glens Falls Ins. Co., 513 S.W.2d 179, 1974 Tenn. LEXIS 461 (Tenn. 1974).

56. —Subsequent Disease or Condition Resulting from Injury.

Injury resulting from an infection following the formation of a callous upon claimant's fingertip, occasioned by operation of listing machine, was accidental. Sears-Roebuck & Co. v. Starnes, 160 Tenn. 504, 26 S.W.2d 128, 1929 Tenn. LEXIS 126 (1930).

Where an employee, in the course of his employment, accidentally fell and struck his head against a radiator, and soon afterwards symptoms of epilepsy developed without any other apparent cause, and expert medical testimony shows that such an injury often gives rise to epilepsy, it was sufficient to support finding that the condition was brought about by the fall and injury. Sears-Roebuck & Co. v. Finney, 169 Tenn. 547, 89 S.W.2d 749, 1935 Tenn. LEXIS 81 (1936).

Evidence to the effect that the death of a policeman 40 days after being struck by a car was caused by an internal condition which was either brought about by such accident or aggravated thereby was sufficient to support an award for death of the policeman on grounds that such death was either proximately caused or appreciably accelerated by such injury. Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, 1937 Tenn. LEXIS 16 (1938).

Where three medical witnesses introduced by defendant testified that the cause of cancer was purely speculative, that the idea that a blow might cause cancer had been advanced but never proven true and where medical witness for petitioner testified that medical science did not know that cancer will result from certain conditions or that it results from traumatic conditions, finding of the trial judge that the proof did not establish that cancer from which deceased worker died was caused by a blow sustained in the course of employment was proper. McBrayer v. Dixie Mercerizing Co., 178 Tenn. 135, 156 S.W.2d 408, 1941 Tenn. LEXIS 41 (1941).

Evidence held sufficient to justify the finding of the trial court that pericarditis with effusion, by which disease the employee was disabled, was directly attributable to repeated sharp blows upon the chest suffered by the employee in the course of his employment. Benjamin F. Shaw Co. v. Musgrave, 189 Tenn. 1, 222 S.W.2d 22, 1949 Tenn. LEXIS 394 (1949).

Coronary occlusion three months and one week after injury to foot as result of fall was compensable where employee had suffered pain and shock to nervous system so as to aggravate heart condition. Howell v. Charles H. Bacon Co., 98 F. Supp. 567, 1951 U.S. Dist. LEXIS 2266 (D. Tenn. 1951), aff'd, 197 F.2d 333, 1952 U.S. App. LEXIS 2625 (6th Cir. Tenn. 1952).

Where petitioner made out a prima facie case that death of deceased employee from cerebro vascular accident was contributed to or aggravated by a sun or heat stroke, and there was no autopsy or any evidence contrary to prima facie case established by petitioner, an award for compensation was justified. Cunningham v. Hembree, 195 Tenn. 107, 257 S.W.2d 12, 1953 Tenn. LEXIS 307 (1953).

Where employee employed as a miner, in apparent good health, sustained a ruptured artery after crawling on his hands and knees a distance of 500 to 800 feet, and 30 days thereafter, following two operations for the purpose of tying off some of the blood flow to the artery, died of thrombosis of the artery, widow was entitled to compensation since exertion in reaching his work was the cause of the ruptured artery. Lay v. Blue Diamond Coal Co., 196 Tenn. 63, 264 S.W.2d 223, 1953 Tenn. LEXIS 406 (1953).

It was immaterial that the initial injury may have been small in contrast to the grave consequences which resulted where there was a causal relation between the initiating accident and the resultant disability. Kitts v. American Mut. Liability Ins. Co., 133 F. Supp. 937, 1955 U.S. Dist. LEXIS 2971 (D. Tenn. 1955).

Testimony of claimant's attendant doctor that first heart attack in course of employment could have so impaired the heart to make it incapable of standing later attack, without stating direct causal relationship, was sufficient to justify award upon holding that the first attack substantially contributed to the second. Powers v. Beasley, 197 Tenn. 549, 276 S.W.2d 720, 1955 Tenn. LEXIS 315 (1955).

Where decedent carrying heavy loads in work suffered a brain hemorrhage and, after several months' treatment, suffered another hemorrhage causing death, his death arose out of original employment since it contributed to his death. Parrott v. Parrott, 198 Tenn. 96, 278 S.W.2d 83, 1955 Tenn. LEXIS 350 (1955).

Where workers' compensation claimant suffered electric shock which doctors testify could “possibly” have caused later brain injury seven years after shock, with no symptoms in meantime, decision of trial judge refusing award on basis of one of two reasonable conflicting inferences as to cause will be sustained. Lynch v. La Rue, 198 Tenn. 101, 278 S.W.2d 85, 1955 Tenn. LEXIS 351 (1955).

Where employee was hospitalized as result of compensable injury, aggravation of injury as result of negligence of hospital orderly while bathing employee during course of treatment was compensable. Mallette v. Mercury Outboard Supply Co., 204 Tenn. 438, 321 S.W.2d 816, 1959 Tenn. LEXIS 298 (1959), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Chancellor was justified in finding causal connection between employee's back injury and his death from hepatitis where employee used drugs and whiskey to relieve continued and excruciating pain resulting from such injury without knowing that they were dangerous to his life when he was suffering from malnutrition. Fennell v. Maryland Casualty Co., 208 Tenn. 116, 344 S.W.2d 352, 1961 Tenn. LEXIS 402 (1961).

Death of worker resulting from operation of tractor was not compensable as arising out of his former employment on ground that necessity of operation of tractor resulting from his inability to perform former work. Jones v. Huey, 210 Tenn. 162, 357 S.W.2d 47, 1962 Tenn. LEXIS 419 (1962).

Where the primary injury is shown to have arisen out of and in the course of the employment, every natural consequence that flows from such injury likewise arises out of the employment unless the subsequent injury is the result of an independent intervening cause attributable to the employee's own negligence or misconduct. Jones v. Huey, 210 Tenn. 162, 357 S.W.2d 47, 1962 Tenn. LEXIS 419 (1962).

Where, in compensation suit involving successive hospitalizations, chancellor found that disability resulted from injury occurring at time of first hospitalization, such finding was binding in suit between the insurance carriers as of the two dates who, although not named, had entered appearances in the original suit. United States Fidelity & Guaranty Co. v. Bituminous Casualty Corp., 52 Tenn. App. 43, 371 S.W.2d 801, 1962 Tenn. App. LEXIS 129 (Tenn. Ct. App. 1962).

Where an employee was injured about the hips, pelvis and legs in a cave-in and an embolism developed during his convalescence causing either a pulmonary embolism or a coronary thrombosis, causing the employee to fall out of a chair and die, his death was caused by the injuries received in his employment. Manis v. Travelers Ins. Co., 239 F. Supp. 439, 1965 U.S. Dist. LEXIS 7062 (E.D. Tenn. 1965).

Nurse's claim for workers' compensation benefits, based upon the nurse's claim that the nurse had contracted tuberculosis when the nurse's hand came into contact with the blood of a patient who was subsequently diagnosed with tuberculosis, was dismissed because the nurse failed to present competent medical evidence that the nurse had contracted tuberculosis as a result of the nurse's employment. Wheetley v. State, — S.W.3d —, 2014 Tenn. LEXIS 467 (Tenn. June 25, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 468 (Tenn. June 25, 2014).

57. —Subsequent Injuries Following Rehabilitation.

The policy allowing compensation in spite of a previous determination of permanent disability to the same member encourages rehabilitation and reemployment. Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

An employee who rehabilitates himself and returns to work rather than relying on public relief should not be penalized for his rehabilitation or discouraged from re-entry into the work force by the denial of benefits for subsequent injuries. Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

58. —Elemental Forces.

When an employee's work exposes him to an elemental force and requires him to continue to work under the risk of the hazard which the elemental force creates, the employee is to be compensated for injuries which result therefrom. Hodge v. Diamond Container General, Inc., 759 S.W.2d 659, 1988 Tenn. LEXIS 194 (Tenn. 1988).

It is foreseeable that when exposed to the hot sun or the freezing cold an employee suffers an injury therefrom. When the nature of the work requires exposure to the risk of this hazard, any injury resulting therefrom arises out of and in the course of the employment. Hodge v. Diamond Container General, Inc., 759 S.W.2d 659, 1988 Tenn. LEXIS 194 (Tenn. 1988).

59. —Heat Prostration, Sunstroke and Heat Exhaustion.

Heat prostration of a fireman in boiler room on an extremely hot day is compensable. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

Where it was shown without dispute that the employee while at his work in loading timber on a very hot July day fell and after a few minutes died, and that the employee was a strong, healthy, able-bodied man, the evidence made out a prima facie case of death from heat exhaustion, heat prostration or sunstroke. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

Death caused by heat prostration, sunstroke or heat exhaustion is compensable in this state. Anderson v. Volz Const. Co., 183 Tenn. 169, 191 S.W.2d 436, 1946 Tenn. LEXIS 197 (1946); Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948); T. J. Moss Tie Co. v. Rollins, 191 Tenn. 577, 235 S.W.2d 585, 1951 Tenn. LEXIS 361 (1951).

Death of employee was compensable where he died suddenly while engaged in loading crossties on a hot day where medical testimony established that cause of death was sunstroke. T. J. Moss Tie Co. v. Rollins, 191 Tenn. 577, 235 S.W.2d 585, 1951 Tenn. LEXIS 361 (1951).

60. —Frostbite and Freezing.

Where employee's work exposed him to the elemental force of freezing for long hours, frostbite resulting therefrom was compensable. Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969).

61. —Back Injuries.

Back injury claims are recognized as appropriate situations for applying gradual injury guidelines; however, while in some cases an employee's back injury has been found to have occurred gradually and not as the result of a specific incident, the court has never held that back injuries are always gradual injuries. Each case must be decided on its facts based upon the proof relating to causation. Mynatt v. Liberty Mut. Ins. Cos., 699 S.W.2d 799, 1985 Tenn. LEXIS 569 (Tenn. 1985).

62. —Hernia.

If, as result of a strain in lifting some heavy article for his employer, an employee dislocates his vertebrae, or breaks his wrist, or ruptures a blood vessel, it could not be seriously insisted that such unexpected injury was not accidental. If the strain or “stretching,” as petitioner terms his act, instead of causing one of the injuries just enumerated, produces a hernia, the occurrence is nonetheless accidental. Webster v. Lloyd A. Fry Roofing Co., 177 Tenn. 122, 146 S.W.2d 946, 1940 Tenn. LEXIS 18 (1941).

Where uncontradicted evidence was to the effect that deceased, a strong healthy man without previous evidence of hernia, engaged in very heavy work subjecting himself to strain in lifting heavy bars of iron, left his place of employment, walked one block to his home and there complained of pain in his side, went to bed and remained there for two days and that on the morning of the third day his employer's physician found him suffering from hernia, the inference was irresistible that deceased had received this injury while lifting the heavy bars and the trial court erred in holding that there was no evidence to show that deceased received an accidental injury arising out of and in the course of his employment. Riley v. Knoxville Iron Co., 178 Tenn. 107, 156 S.W.2d 398, 1941 Tenn. LEXIS 37 (1941).

63. —Mental Ailments and Nervous Conditions.

The word “injury” in the Workers' Compensation Law is broader than the mere reference to some objective physical break or wound to the body and includes the consequences therefrom such as mental ailments or nervous conditions. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

An employee disabled by “traumatic or post-traumatic neurosis” precipitated by an accident arising out of and in the course of his employment is entitled to compensation under the Workers' Compensation Law. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

Testimony of doctors and neighbors of muscle spasms and inability to walk or work is such substantial evidence of causation and permanent disability as to allow trial judge to award compensation where claimant alleges back injury. Bush Bros. & Co. v. Williams, 197 Tenn. 334, 273 S.W.2d 137, 1954 Tenn. LEXIS 491 (1954).

Traumatic or post-traumatic neurosis is an “injury” within the meaning of the act. McKenzie v. Campbell & Dann Mfg. Co., 209 Tenn. 475, 354 S.W.2d 440, 1962 Tenn. LEXIS 380 (1962).

Where the medical testimony gave no opinion as to the permanence of a present aggravated nervous condition, there was no evidence before the trial court from which a permanent impairment could be inferred. Minton v. Leonard, 219 Tenn. 642, 412 S.W.2d 886, 1967 Tenn. LEXIS 378 (1967).

Where there was testimony in the record by psychiatrist that employee suffered from chronic undifferentiated schizophrenia and that such condition disabled him from work, supreme court would not disturb trial court's finding to that effect even though on the basis of the entire record it might have reached a different conclusion. Gluck Bros., Inc. v. Pollard, 221 Tenn. 383, 426 S.W.2d 763, 1968 Tenn. LEXIS 471 (1968).

Mental or nervous illnesses are compensable when shown to be caused by an industrial, work-related accident. Jose v. Equifax, Inc., 556 S.W.2d 82, 1977 Tenn. LEXIS 609 (Tenn. 1977).

Where defendant's claim for workers' compensation benefits alleged that he sustained a “severe psychiatric illness” as a result of being placed under a tremendous amount of pressure and tension in order to meet his obligations to his employer, the complaint was dismissed for failure to state a claim due to its general, conclusory nature and lack of specificity. Jose v. Equifax, Inc., 556 S.W.2d 82, 1977 Tenn. LEXIS 609 (Tenn. 1977).

Trial court erred in awarding workers' compensation benefits for a mental injury to a worker who had been exposed to the blood of a co-worker whom she believed was HIV positive where she had not shown actual exposure to the virus through a medically recognized channel of transmission and five HIV tests had been performed on her and all were negative. The Supreme Court of Tennessee is unwilling to award workers' compensation disability benefits to a claimant who suffers from an irrational fear of exposure to HIV when there is no proof of actual exposure via a medically recognized channel of transmission. Guess v. Sharp Mfg. Co. of Am., 114 S.W.3d 480, 2003 Tenn. LEXIS 722 (Tenn. 2003).

Trial court had not erred in concluding that a claimant had not suffered a cognitive impairment due to a work related accident because she had not asserted that she had sustained a closed head injury until her attorney referred her for psychological testing almost three years after the accident. And, the court found “a huge void” in the medical evidence between the time that she received treatment from the neurologist and the time that she was referred for psychological testing. Layman v. Vanguard Contrs., 183 S.W.3d 310, 2006 Tenn. LEXIS 5 (Tenn. 2006).

64. —Emotional Stress.

Worry, anxiety or emotional stress of a general nature are not in and of themselves sufficient to establish an accident. Emotional stress, to some degree, accompanies the performance of any contract of employment; when this is within the bounds of the ups and downs of emotional normal human experience, courts frequently decline to impose liability upon employers for conditions resulting from cumulated strain. Henley v. Roadway Express, 699 S.W.2d 150, 1985 Tenn. LEXIS 561 (Tenn. 1985).

For a mental injury by accident or occupational disease to arise out of employment, it must be caused by an identifiable stressful, work-related event producing a sudden mental stimulus such as fright, shock or excessive unexpected anxiety, and therefore it may not be gradual employment stress building up over a period of time. In addition, the stress produced may not be usual stress, but must be extraordinary and unusual in comparison to the stress ordinarily experienced by an employee in the same type duty. Gatlin v. Knoxville, 822 S.W.2d 587, 1991 Tenn. LEXIS 511 (Tenn. 1991).

Where plaintiff suffered an acute, sudden, or unexpected emotional stress, there was an injury by accident. Jones v. Hartford Acci. & Indem. Co., 811 S.W.2d 516, 1991 Tenn. LEXIS 195 (Tenn. 1991).

Even if incident where employee was informed by her supervisor that she was probably going to be fired caused employee's mental breakdown, the employee's mental injury was not compensable. Goodloe v. State, 36 S.W.3d 62, 2001 Tenn. LEXIS 53 (Tenn. 2001).

Post-traumatic stress disorder (PTSD) can, in some circumstances, be a compensable workers' compensation injury. Guess v. Sharp Mfg. Co. of Am., 114 S.W.3d 480, 2003 Tenn. LEXIS 722 (Tenn. 2003).

65. —Poisoning.

Death of person employed to remove trolley lines and steel rails from coal mines as result of arsenic poisoning was not compensable where expert evidence showed that amount of arsenic from copper wiring handled by deceased in mines was not in sufficient quantity to have caused arsenic poisoning. Smith v. Fentress Coal & Coke Co., 188 Tenn. 656, 222 S.W.2d 3, 1949 Tenn. LEXIS 386 (1949).

66. —Diseases.

Disease caused by breathing dust in work of moving sacks containing chemicals was not compensable. Meade Fiber Corp. v. Starnes, 147 Tenn. 362, 247 S.W. 989, 1922 Tenn. LEXIS 48 (1923). But see part 3 of this chapter.

Despite conflict in testimony of medical experts, pyelitis held to have been caused by injury to employee's back seven weeks previously. Vester Gas Range & Mfg. Co. v. Leonard, 148 Tenn. 665, 257 S.W. 395, 1923 Tenn. LEXIS 53 (1923).

Pneumonia from which employee died four days after heat prostration, which was the moving, exciting or contributing cause of the pneumonia, held to have naturally resulted from such injury. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

Whenever an injury by accident can be said to have been the moving, exciting or contributing cause of a resulting disease, such disease “naturally resulted” from the injury; and it is wholly immaterial whether such disease often or usually results from similar injuries. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

An accidental injury may be occasioned by squeezing a pimple resulting in infection with a disease communicated by a horse, cared for by the employee, to his fingers. Hartford Acci. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904, 1928 Tenn. LEXIS 76 (1929).

In order for a disease to be referable to an accidental injury, its inception must be assignable to a determinate, single occurrence, identified in time and space. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931); Gabbard v. Proctor & Gamble Defense Corp., 184 Tenn. 464, 201 S.W.2d 651, 1947 Tenn. LEXIS 398 (1947). But see part 3 of this chapter.

If an employee suffers from a disease at all, occupational or otherwise, he has no recourse under this act unless the disease naturally results from an accidental injury. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931); Gabbard v. Proctor & Gamble Defense Corp., 184 Tenn. 464, 201 S.W.2d 651, 1947 Tenn. LEXIS 398 (1947). But see part 3 of this chapter.

Since the cause of cancer is purely speculative, it could not be said that deceased employee died of cancer caused by a blow on the breast while working. McBrayer v. Dixie Mercerizing Co., 178 Tenn. 135, 156 S.W.2d 408, 1941 Tenn. LEXIS 41 (1941).

Loss of eye held to be result of disease and not accident. Craig v. Marquette Cement Mfg. Co., 190 Tenn. 234, 229 S.W.2d 148, 1950 Tenn. LEXIS 473 (1950).

Acts 1947, ch. 139, compiled in this section and in parts 2 and 3 of this chapter, did not limit compensation to specified occupational diseases if the disability from the disease is the result of an injury arising out of and in the course of employment. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

Death by apoplexy while carrying light rope was not compensable since sudden death was not due to exertion but to progress of disease. Wilhart v. L. A. Warlick Const. Co., 195 Tenn. 344, 259 S.W.2d 655, 1953 Tenn. LEXIS 347 (1953).

Spondylolisthesis is a disability capable of supporting an award under the Workers' Compensation Act since such disability, in addition to being congenital, may result from trauma. E. I. Dupont De Nemours & Co. v. Friar, 218 Tenn. 554, 404 S.W.2d 518, 1966 Tenn. LEXIS 588 (1966).

Occupational diseases are embraced within the terms “injury” and “personal injury.” Wittenbarger v. Carr Co., 557 S.W.2d 65, 1977 Tenn. LEXIS 670 (Tenn. 1977).

The death of an employee who dies in the course of his employment by reason of a heart attack, although suffering from a previous heart disease, is covered under the Workers' Compensation Act even if the result was produced only by ordinary exertion and usual strain of the work. Cortrim Mfg. Co. v. Smith, 570 S.W.2d 854, 1978 Tenn. LEXIS 636 (Tenn. 1978).

An injury by accident is not separate from an occupational disease in terms of legal analysis because they both fall within the statutory definition of injury. Gatlin v. Knoxville, 822 S.W.2d 587, 1991 Tenn. LEXIS 511 (Tenn. 1991).

Where police officer's heart attack was not immediately precipitated by a specific acute or sudden stressful event, the trial court's finding of compensability was reversed. Benton v. City of Springfield, 973 S.W.2d 936, 1998 Tenn. LEXIS 351 (Tenn. 1998).

Employee was entitled to workers' compensation benefits because the employee developed a lung condition as a consequence of the employee's exposure at work to grain dust that was produced by a grain facility adjacent to the employer's workplace. Plotner v. Metal Prep, — S.W.3d —, 2014 Tenn. LEXIS 677 (Tenn. Sept. 29, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 679 (Tenn. Sept. 29, 2014).

67. —Permanent Disfigurement.

Permanent disfigurement is an injury covered by workers' compensation, even if it is not disabling. Clayton v. Pizza Hut, Inc., 673 S.W.2d 144, 1984 Tenn. LEXIS 820 (Tenn. 1984).

68. —Scarring.

Claimant did suffer a compensable injury which arose out of the employment, occurred in the course of employment and caused disablement despite her employer's assertion that her claim should be denied because it was the result of a mere episode of pain resulting from scar tissue which had accumulated as a result of two previous surgeries, did not constitute a new injury and did not advance the severity of her preexisting condition. Fink v. Caudle, 856 S.W.2d 952, 1993 Tenn. LEXIS 378 (Tenn. 1993).

69. —Averment of Employee — Effect.

An employee is bound by his own averment that his employer's physician was of the opinion that his injury was only a back strain that would readily yield to treatment. Netherland v. Mead Corp., 170 Tenn. 520, 98 S.W.2d 76, 1936 Tenn. LEXIS 23 (1936).

70. —Statements in Employment Application.

Three factors must be present before a false statement in an employment application will bar recovery of workers' compensation benefits. First, the employee must have knowingly and willfully made a false representation as to his physical condition. Second, the employer must have relied upon a false representation and this reliance must have been a substantial factor in the hiring. Third, there must have been a causal connection between the false representation and the injury. The causal connection required is a factual showing that the injury upon which the workers' compensation claim is based is causally related to the employee's prior injuries or physical condition which were wrongfully concealed from the employer. Except in the most obvious cases, such causation must be established by expert medical testimony. Quaker Oats Co. v. Smith, 574 S.W.2d 45, 1978 Tenn. LEXIS 675 (Tenn. 1978).

Although the employer insisted that the employee misrepresented her physical condition in making application for employment, and, consequently, could not recover workers' compensation benefits, where evidence that the employee had not had any “back trouble” for several years before her employment supported a finding that the employee did not knowingly or willfully misrepresent her physical condition in making application for employment, and evidence that the employee was required to undergo a pre-employment physical examination by the employer, which revealed no “back trouble,” supported a finding that the employer did not rely solely on the medical history given by the employee in making application for employment, but relied on the medical examination, there was support for the chancellor's finding that the employee was entitled to receive benefits. Quaker Oats Co. v. Smith, 574 S.W.2d 45, 1978 Tenn. LEXIS 675 (Tenn. 1978).

71. —Evidence.

Where employee was found dead in badly ventilated mine where he had been doing heavy manual labor, and doctor testified in workers' compensation trial for death benefits that such air and labor would be contributing causes of death from predisposed heart trouble, although laymen testified he looked healthy, there was sufficient substantial evidence to uphold trial judge's award of compensation. Heron v. Girdley, 198 Tenn. 110, 277 S.W.2d 402, 1955 Tenn. LEXIS 341 (1955).

Medical testimony that it “is possible” or “could be responsible” is not alone sufficient on which to predicate a finding of a causal connection between the accident and the injury for which compensation is sought. Mason & Dixon Lines, Inc. v. Gregory, 206 Tenn. 525, 334 S.W.2d 939, 1960 Tenn. LEXIS 390 (1959).

Where preponderance of proof showed plaintiff's intestate's death resulted from deterioration of the body caused by multiple diseases, the fact that driving a tractor-trailer rig may have been a strain on the body was not sufficient to make out a case or liability under Tennessee's Workers' Compensation Act. Kirby v. Dance Freight Lines, 226 F. Supp. 947, 1964 U.S. Dist. LEXIS 6452 (E.D. Tenn. 1964).

Lay testimony is competent to establish simple but important matters such as the existence of pain, its location, inability to work and the like, but it may not be received and relied on to prove matters requiring scientific knowledge. American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W.2d 643, 1965 Tenn. LEXIS 573 (1965).

Evidence was sufficient to support the finding that the employee was disabled as a result of coal worker's pneumoconiosis rather than the heart disease from which the employee also suffered. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

In a workers' compensation proceeding for total permanent disability benefits for coal worker's pneumoconiosis, the trial court properly excluded from evidence an application and supporting data submitted by the employee, a coal miner, to the United States department of labor in an effort to obtain black lung benefits under federal statutes where the evidence was offered, not for the purpose of impeaching the employee's testimony or to show a prior inconsistent statement on his part or that of any other witness, but as substantive evidence that the employee had not sustained total disability as a result of pneumoconiosis. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

Where the employee's testimony describing his symptoms and complaints, in general, was admissible, although he was not qualified to testify as to the medical reasons or cause of these, any error of the trial court in not formally striking portions of his testimony from the record was harmless and did not affect the outcome of the case, since the hearing was nonjury and before an experienced chancellor, who was clearly able to eliminate any incompetent evidence from consideration in reaching his decision. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

A state court, although applying federal standards and criteria, such as are set forth in federal regulations, should make an independent determination of the employee's entitlement to compensation, and it may consider any competent evidence presented on that issue by either party. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

The trial court did not err in overruling an objection to a hypothetical question as to whether, assuming that the employee was setting up machinery, which involved a tremendous amount of bending, stooping, stretching and reaching, such exertion could have contributed to the employee's fatal heart attack, where the record indicated that adjusting wood-working machines, which is what the employee was engaged in, did consist of such activity and, moreover, the employer had the opportunity to restate the hypothetical question on cross-examination or frame other questions of his own to point out deficiencies in the question posed by the claimant. Cortrim Mfg. Co. v. Smith, 570 S.W.2d 854, 1978 Tenn. LEXIS 636 (Tenn. 1978).

Where there was direct evidence that prior to his fatal heart attack a part-time high school custodian had moved desks and swept one aisle in the room where his body was found, and there was medical testimony that the exertion required of the custodian could be enough to produce a heart attack, the finding of the chancellor that there was a causal connection between the custodian's activities at work and his fatal heart attack was supported by the evidence, and the supreme court was bound by it. Shelby Mut. Ins. Co. v. Dudley, 574 S.W.2d 43, 1978 Tenn. LEXIS 674 (Tenn. 1978).

In “causal connection” cases, facts and circumstances revealed by lay testimony may often have relevancy upon the ultimate determination of that issue, and therefore it is not exclusively within the realm of medical science. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

The trial judge is not bound to accept physicians' opinions of the extent of the employee's disability, but is entitled to determine the extent of disability from all of the evidence, both expert and nonexpert. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 1983 Tenn. LEXIS 690 (Tenn. 1983).

The preponderance of the evidence established that plaintiff did not injure his chest while at work and that his pulmonary problems for which he was hospitalized were caused by his sickle-cell disease. Sheffield v. Schneider Services Int'l, Inc., 800 S.W.2d 174, 1990 Tenn. LEXIS 432 (Tenn. 1990).

Where the employee testified that she was injured while flipping a piece of wood and the medical records reflected her doctor's opinion that her back condition was work-related, the evidence was sufficient to establish a causal relationship between the employee's work activities and her back injury. Glisson v. Mohon Int'l, Inc., 185 S.W.3d 348, 2006 Tenn. LEXIS 180 (Tenn. 2006).

72. —Burden of Proof.

The plaintiff in a workers' compensation suit, and all civil actions generally, has the burden of proving his case “in all its parts” by a preponderance of the evidence. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

73. — —Circumstantial Evidence.

Accidental death within the Workers' Compensation Law is provable by circumstantial evidence just as any other fact may be proven. Riley v. Knoxville Iron Co., 178 Tenn. 107, 156 S.W.2d 398, 1941 Tenn. LEXIS 37 (1941); Heron v. Girdley, 198 Tenn. 110, 277 S.W.2d 402, 1955 Tenn. LEXIS 341 (1955).

Compensable injury may be shown by circumstantial evidence, but the circumstances relied on must be sufficient to make out a prima facie case and at least take it out of the realm of speculation. Smith v. Fentress Coal & Coke Co., 188 Tenn. 656, 222 S.W.2d 3, 1949 Tenn. LEXIS 386 (1949).

An expert is not required to testify that trauma is the cause of employee's disability but it is sufficient if the expert testifies that trauma could or might be the cause of the disability in determining issue whether trauma or disease is the cause of the disability sustained. Benjamin F. Shaw Co. v. Musgrave, 189 Tenn. 1, 222 S.W.2d 22, 1949 Tenn. LEXIS 394 (1949).

The fact of accident may be established not only by direct evidence but as well by circumstances reasonably leading to an inference that an accident occurred. Railway Express Agency, Inc. v. Clark, 194 F.2d 29, 1952 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1952).

Complaint for compensation which alleged that plaintiff was injured as result of fall did not bar expert testimony that fall aggravated a preexisting disease, hence exclusion of expert testimony by trial court was prejudicial error. Ledford v. Miller Bros. Co., 194 Tenn. 467, 253 S.W.2d 552, 1952 Tenn. LEXIS 405 (1952).

Finding a person dead at his post of duty does not alone raise a prima facie case for compensation, but where physical exertion is also proven a prima facie case may, depending on circumstances, be made out that death was due to an accident arising out of, and in the course of employment. Heron v. Girdley, 198 Tenn. 110, 277 S.W.2d 402, 1955 Tenn. LEXIS 341 (1955).

74. — —Expert Testimony.

Where the cause of an existing condition or injury is in dispute, an expert's opinion may be admitted to the effect that a certain cause could or might produce the condition, but to permit him to testify as to what in his opinion probably did produce it would be error. Sanders v. Blue Ridge Glass Corp., 161 Tenn. 535, 33 S.W.2d 84, 1930 Tenn. LEXIS 40 (1930).

Where previously healthy claimant suffered heart attack while engaged in hot, heavy work, and attendant doctor testified that there was a causal relationship, there was sufficient evidence that the injury arose out of employment. Powers v. Beasley, 197 Tenn. 549, 276 S.W.2d 720, 1955 Tenn. LEXIS 315 (1955).

Optometrist's testimony that prior to accidental splashing of acid into his right eye claimant had 20-20 vision, and after the accident had 20-400 vision therein, was valuable in measuring the sight before and after the accident; however, since his training was not in diseases of the eye, his testimony could not be considered material evidence to support award to claimant for loss of eyesight. American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W.2d 643, 1965 Tenn. LEXIS 573 (1965).

Where both an optometrist and workers' compensation claimant testified that splashing of acid in claimant's right eye caused loss of vision, but a specialist in ophthalmology testified that there was no possible connection between the accident and optic neuritis which caused the loss of vision, the evidence failed to support award for loss of use of the eye. American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W.2d 643, 1965 Tenn. LEXIS 573 (1965).

Where expert witness testified that employee's work could have been a contributing factor to employee's stroke, there was sufficient evidence to establish a connection between the work and the stroke, and to support a claim for compensation, even though employee was suffering from arteriosclerosis. Forest Products v. Parvin, 532 S.W.2d 908, 1975 Tenn. LEXIS 613 (Tenn. 1975).

Where the physician who testified on the issue of permanence of disability performed several physical examinations, some of which revealed objective signs of injury and treated plaintiff for several months, the fact that he noted no objective signs of back injury on several examinations of plaintiff did not per se destroy the probative value of his testimony. Travelers Ins. Co. v. Flatford, 551 S.W.2d 695, 1977 Tenn. LEXIS 532 (Tenn. 1977).

Where the physician who testified on the issue of permanence of disability was not sure whether the back injury was to a disc or was an acute lumbar strain and the only way to resolve the doubt was to perform an operation which might increase the injury to plaintiff, the court found his testimony sufficient to support a finding for plaintiff. Travelers Ins. Co. v. Flatford, 551 S.W.2d 695, 1977 Tenn. LEXIS 532 (Tenn. 1977).

A trial judge may properly predicate an award on medical testimony to the effect that a given incident “could be” the cause of the plaintiff's injury, when he also has before him lay testimony from which it may reasonably be inferred that the incident was in fact the cause of the injury. P & L Constr. Co. v. Lankford, 559 S.W.2d 793, 1978 Tenn. LEXIS 702 (Tenn. 1978); Cortrim Mfg. Co. v. Smith, 570 S.W.2d 854, 1978 Tenn. LEXIS 636 (Tenn. 1978).

Although the greater number of witnesses were of the opinion that there was no causal connection between the accident and the subsequent optic neuritis, it was within the discretion of the trial judge to conclude that the opinion of one expert should be accepted over those of the other experts and that it contained the most probable explanation. Combustion Engineering, Inc. v. Kennedy, 562 S.W.2d 202, 1978 Tenn. LEXIS 585 (Tenn. 1978).

Testimony of employee and other lay witnesses who first establish a proper factual foundation is admissible on issue of employee's inability to work and may be sufficient to establish that fact without expert medical testimony. Simpson v. Satterfield, 564 S.W.2d 953, 1978 Tenn. LEXIS 543 (Tenn. 1978).

No expert medical testimony is required to show the causal connection between an employee's injury and his inability to work where the nature of the injury and the result produced thereby, as testified to by lay witnesses, makes evident to the lay mind, based upon the common knowledge and experience of mankind, that the causal connection exists. Simpson v. Satterfield, 564 S.W.2d 953, 1978 Tenn. LEXIS 543 (Tenn. 1978).

When causal connection and permanency of the injury have been established by expert medical testimony, the trial judge is not bound to accept the doctors' opinions of the extent of the employee's disability. Trane Co. v. Morrison, 566 S.W.2d 849, 1978 Tenn. LEXIS 557 (Tenn. 1978).

A plaintiff must establish the permanency of his disability by a preponderance of the evidence which must be accomplished through expert medical testimony. A fortiori, any expert medical witness presented must give testimony that preponderates in favor of permanency to qualify as having probative value on that issue. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

The determination of the issue of permanency of all but the most obvious injuries, such as loss of a member, is peculiarly within the realm of scientific knowledge. Thus, an award of permanent partial disability for an injury must be supported by expert medical testimony that the resulting condition is permanent. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

Where employee sought compensation for permanent partial disability to his foot, the doctor's testimony that permanent disability was “just a possibility” and that chances were 40 percent for and 60 percent against permanency clearly failed to preponderate in favor of permanency. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

75. — —“Rule of Reasonable Inference.”

Under the “rule of reasonable inference,” where from the medical testimony, two inferences could be drawn and the medical testimony more strongly supports one of them, as a matter of law the court is authorized to adopt the stronger inference. Howell v. Charles H. Bacon Co., 98 F. Supp. 567, 1951 U.S. Dist. LEXIS 2266 (D. Tenn. 1951), aff'd, 197 F.2d 333, 1952 U.S. App. LEXIS 2625 (6th Cir. Tenn. 1952).

No prima facie case that workers' compensation claimant was killed in course of employment is made out, where night clerk of flop house was found during working hours murdered by persons and for reasons unknown; since where employee is found at post during customary hours and there is no direct evidence of manner of his death, inference may arise that it was in course of employment, but if facts indicate more than one reasonable inference as to cause of death, the rule does not apply. Reed v. Langford, 197 Tenn. 587, 276 S.W.2d 735, 1955 Tenn. LEXIS 322 (1955).

76. — —Statement in Death Certificate — Effect.

A statement in a death certificate that death was “due to probable heart attack” was insufficient, in an action for workers' compensation, to overcome the inference that the employee, an able-bodied, healthy man who collapsed and died while loading timber on a very hot day, died of heat prostration. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

77. —Presumptions Resolved in Favor of Employee.

Where, in the course of and arising out of his employment, an employee in good health and of strong physique suffers physical injury which is followed by serious disabilities, and competent physicians differ as to whether the disabilities are attributable to the injury, but only probable or conjectural reasons or causes are assigned by the physicians in an effort to explain the disabilities on grounds other than the injury, the presumptions should be resolved in favor of the employee rather than against him. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

Award cannot be based solely on medical experts' testimony that accident possibly could cause injury, but it may be if there is other evidence to reasonably infer such result. Lynch v. La Rue, 198 Tenn. 101, 278 S.W.2d 85, 1955 Tenn. LEXIS 351 (1955).

78. —Previous Recovery from Another Employer — Effect.

For law on subsequent injuries, see § 50-6-208.

Recovery from a former employer for permanent loss of an eye does not preclude recovery for the loss of that member against a subsequent employer eight years later. Claimant may show that he and the former employer were mistaken as to such loss, as demonstrated by the event. Loss of an eye not wholly useless is within the schedule of award for loss of an eye. Williams v. S. & W. Const. Co., 167 Tenn. 84, 66 S.W.2d 992, 1933 Tenn. LEXIS 8 (1934).

That the claimant had received compensation for permanent and total loss of the same eye from a previous employer eight years before accident relied upon is competent as tending to show whether the claimant has such an eye to lose. Williams v. S. & W. Const. Co., 167 Tenn. 84, 66 S.W.2d 992, 1933 Tenn. LEXIS 8 (1934).

79. Arising out of and in Course of Employment.

The test of compensable injury is one of contract and not conduct. If the employee is doing that which by his contract, either expressly or by implication is made his duty, he is in the course of his employment, however negligent his conduct may be. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924).

An accident arises “in course of employment” if it occurs while employee is doing what a man so employed may reasonably do in the time during which he is reasonably employed and at a place where he may reasonably be during that time. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928).

An accident arises in course of employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be done and the resultant injury. Chamber of Commerce v. Turner, 158 Tenn. 323, 13 S.W.2d 318, 1928 Tenn. LEXIS 156 (1929); Porter v. Travelers' Ins. Co., 163 Tenn. 526, 43 S.W.2d 1066, 1931 Tenn. LEXIS 144 (1931); Jellico Grocery Co. v. Hendrickson, 172 Tenn. 148, 110 S.W.2d 333, 1937 Tenn. LEXIS 64 (1937); Whaley v. Patent Button Co., 184 Tenn. 700, 202 S.W.2d 649, 1947 Tenn. LEXIS 291 (1947); Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87, 1947 Tenn. LEXIS 316 (1947); Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977, 1951 Tenn. LEXIS 374 (1951); Fink v. Caudle, 856 S.W.2d 952, 1993 Tenn. LEXIS 378 (Tenn. 1993).

In order for an injury to arise out of the course of employment within the meaning of the statute there must exist a causal connection between the conditions of employment and the resulting injury so that it will appear that such injury resulted from a peculiar condition or danger to which the employment exposed the worker. Scott v. Shinn, 171 Tenn. 478, 105 S.W.2d 103, 1937 Tenn. LEXIS 127 (1937); Toombs v. Liberty Mut. Ins. Co., 173 Tenn. 38, 114 S.W.2d 785, 1937 Tenn. LEXIS 10 (1938).

An injury arises out of the employment where there is a causal connection between the injury and the employment. Jellico Grocery Co. v. Hendrickson, 172 Tenn. 148, 110 S.W.2d 333, 1937 Tenn. LEXIS 64 (1937); Employers' Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837, 1937 Tenn. LEXIS 89 (1938); Toombs v. Liberty Mut. Ins. Co., 173 Tenn. 38, 114 S.W.2d 785, 1937 Tenn. LEXIS 10 (1938).

The term “in the course of employment” refers to the time, place and circumstances under which the injury occurred. Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, 1937 Tenn. LEXIS 16 (1938).

If the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and have flowed from that source as a rational consequence. Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87, 1947 Tenn. LEXIS 316 (1947).

Mere presence at a place where injury takes place is not sufficient to make injury compensable unless injury is related to the employment. Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954, 1949 Tenn. LEXIS 384 (1949).

An injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work was required to be performed and the resulting injury. T. J. Moss Tie Co. v. Rollins, 191 Tenn. 577, 235 S.W.2d 585, 1951 Tenn. LEXIS 361 (1951); Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

Injury, in order to be considered as arising out of employment under Workers' Compensation Law, must result from a danger peculiar to the work and not common to the neighborhood and an injury purely coincidental, or contemporaneous, or collateral, with the employment will not cause the injury to be considered as arising out of the employment. Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389, 1954 Tenn. LEXIS 464 (1954).

In order to be compensable the injury suffered by the employee must arise out of and in the course of his employment. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

Where deceased had left his place of employment and had gone to his apartment on the same premises for rest or association with his family and had retired when fatal heart attack occurred, relationship of master and servant was suspended and injury did not arise out of or in course of his employment where there was no proof of an injury or accident connected with his work to which heart attack could be related. Travelers Ins. Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 1965 Tenn. LEXIS 543 (1965); Bowman v. Smith-Built Homes, Inc., 221 Tenn. 102, 424 S.W.2d 801, 1967 Tenn. LEXIS 358 (1967).

An injury by accident to an employee is “in the course of” employment if it occurred while he was performing a duty he was employed to do and it is an injury “arising out of” employment if caused by a hazard incident to such employment. Travelers Ins. Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 1965 Tenn. LEXIS 543 (1965); Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968); Williams v. Preferred Development Corp., 224 Tenn. 174, 452 S.W.2d 344, 1970 Tenn. LEXIS 310 (1970).

Mere presence of an employee at the place of injury because of employment will not alone result in the injury being considered as arising out of employment and if the injury or death resulted from an exposure which is no more or different from that of any other member of the public similarly situated in place and time it is not compensable. Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765, 1966 Tenn. LEXIS 617, 1966 Tenn. LEXIS 618 (1966), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

An employer is not liable for workers' compensation benefits to an employee who is injured in an attempt to rescue a stranger, under circumstances in which the employer has no pecuniary or proprietary interest in the rescue as such and no responsibility for creating the danger out of which the rescue attempt arose. Lennon Co. v. Ridge, 219 Tenn. 623, 412 S.W.2d 638, 1967 Tenn. LEXIS 453 (1967).

The mere presence of an employee at the place of injury because of employment will not result in the injury being considered as arising out of the employment. Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968).

The fact that employee was on job site at time of death by heart attack was not in and of itself determinative of the question of whether death arose out of and in the course of his employment. Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760, 1968 Tenn. LEXIS 470 (1968).

Where an employee becomes helpless in the course of employment due to illness or other cause not related to his employment, is in dire need of medical attention or other assistance in order to prevent further injury and the employer has the ability to make such medical attention or other assistance available but does not do so, the disability which results from this failure of the employer is to be considered as having arisen out of and in the course of employment; however, an employer is not required to force medical treatment upon an unwilling employee who is conscious and rational at the time. Vanderbilt University v. Russell, 556 S.W.2d 230, 1977 Tenn. LEXIS 612 (Tenn. 1977).

In determining whether an accident arose out of and in the course of the employment, each case must be decided with respect to its own attendant circumstances and not by resort to some formula. Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

Accident and injury were found to have arisen out of and in the course of the employment of the employee. Wellington v. John Morrell & Co., 619 S.W.2d 116, 1981 Tenn. LEXIS 461 (Tenn. 1981).

An injury arises out of and in the course of employment if it has a rational causal connection to the work and occurs while the employee is engaged in the duties of his employment, and any reasonable doubt as to whether an injury arose out of the employment or not is to be resolved in favor of the employee. Hall v. Auburntown Industries, Inc., 684 S.W.2d 614, 1985 Tenn. LEXIS 468 (Tenn. 1985).

If, because of the nature of the work, there is a special risk of exposure, beyond that incurred by the general public, to criminal attacks or to the violence of the elements, the injury is one arising out of the employment. Hall v. Auburntown Industries, Inc., 684 S.W.2d 614, 1985 Tenn. LEXIS 468 (Tenn. 1985).

The mere presence of an employee at the place of injury because of his employment will not alone result in the injury being considered as arising out of the employment; the injury must be occasioned by and must “arise out of” the employment as well as “in the course of” employment. Jordan v. United Methodist Urban Ministries, Inc., 740 S.W.2d 411, 1987 Tenn. LEXIS 1012 (Tenn. 1987).

Plaintiff's medical problems did not arise out of and in the course of his employment. La-Z-Boy Chair Co. v. Reed, 778 F. Supp. 954, 1990 U.S. Dist. LEXIS 19446 (E.D. Tenn. 1990), aff'd, 936 F.2d 573, 1991 U.S. App. LEXIS 19988 (6th Cir. Tenn. 1991).

“In the course of employment,” for plant employees having a fixed time to clock in, embraces a reasonable interval before and after actual working hours while the employee is on the premises engaged in preparatory or incidental acts. Carter v. Volunteer Apparel, Inc., 833 S.W.2d 492, 1992 Tenn. LEXIS 309 (Tenn. 1992).

Employee security guard's death did not arise from generalized employment condition but rather from something beyond the norm even for a security guard, where individuals whom security guard chased from the property not only regularly confronted the guard verbally, but also threatened to return and kill him. Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 2001 Tenn. LEXIS 140 (Tenn. 2001), rehearing denied, Cunningham v. Shelton Sec. Serv., Inc. , — S.W.3d —, 2001 Tenn. LEXIS 381 (Tenn. 2001).

The mere presence of an employee at the place of injury because of employment is not sufficient to establish entitlement to worker's compensation, as the injury must result from a danger or hazard peculiar to the work or be caused by a risk inherent in the nature of the work. Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 2001 Tenn. LEXIS 140 (Tenn. 2001), rehearing denied, Cunningham v. Shelton Sec. Serv., Inc. , — S.W.3d —, 2001 Tenn. LEXIS 381 (Tenn. 2001).

Trial court properly denied an employee workers' compensation benefits under T.C.A. § 50-6-102 as her injury did not result from a danger or hazard peculiar to her work; rather, it occurred while she was undertaking a voluntary test as part of the application process for a job she did not have and may not have gotten even if she passed the test. This case fell within the rule that an injury which is merely coincidental, contemporaneous, or collateral with the employment is not compensable. Blankenship v. Am. Ordnance Sys., LLC, 164 S.W.3d 350, 2005 Tenn. LEXIS 401 (Tenn. 2005).

Where the employee of a nursing home was injured in an automobile accident while traveling to a training facility, the accident arose out of and was in the course of her employment within the meaning of T.C.A. § 50-6-102. This trip fell within the “special errand or mission” exception because it was a special assignment at the direction of the employer. Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 2006 Tenn. LEXIS 301 (Tenn. 2006).

80. —Evidence.

Where there was evidence that petitioner was struck across his lower back by a plank knocking him to the ground and doctor testified that the injury caused the herniated disc, evidence was sufficient to support finding of trial court that employee's herniated disc was the result of an accident arising out of and in the course of employment. Atlas Powder Co. v. Grimes, 200 Tenn. 206, 292 S.W.2d 13, 1956 Tenn. LEXIS 397 (1956).

If there is any conflict in the evidence as to whether an accident arose out of and within the course of employment or in the inferences to be drawn therefrom, or if the evidence is undisputed but the minds of reasonable men may draw different conclusions from the same, it cannot be stated that a pure question of law is presented but rather a question of fact. Volz v. Southerland, 200 Tenn. 344, 292 S.W.2d 385, 1956 Tenn. LEXIS 416 (1956).

The burden rests upon the employee to show a causal connection between his injury and his employment but by causal connection is meant not proximate cause as used in the law of negligence but cause in the sense that the accident had its origin in the hazards to which the employment exposed the employee in doing the work. Volz v. Southerland, 200 Tenn. 344, 292 S.W.2d 385, 1956 Tenn. LEXIS 416 (1956); White v. Whiteway Pharmacy, Inc., 210 Tenn. 449, 360 S.W.2d 12, 1962 Tenn. LEXIS 306 (1962).

Evidence sustained finding of trial court that construction employee whose death resulted from burns suffered when he overturned bucket containing waste and diesel oil which he had lighted to keep warm in ditch where he was working died as a result of an accident arising out of and in the course of his employment. Volz v. Southerland, 200 Tenn. 344, 292 S.W.2d 385, 1956 Tenn. LEXIS 416 (1956).

Where traveling salesman operated under rule by which the salesman remained in the territory in which they were operating until the job was completed unless it would be less expensive for them to return to headquarters and in the particular instance such salesman was more than a hundred miles from the headquarters and he was not told to return home, death of such salesman resulting from automobile accident which occurred while traveling to his home over the weekend did not arise out of and in the course of his employment. Timmerman v. Kerr Glass Mfg. Co., 203 Tenn. 543, 314 S.W.2d 31, 1958 Tenn. LEXIS 329 (1958).

Evidence sustained trial court's finding that work which decedent had done on the day of his death following his period of rest at the dispensary contributed to onset of fatal heart attack and thus his death arose out of his employment. Aetna Casualty & Surety Co. v. Johnson, 278 F.2d 200, 1960 U.S. App. LEXIS 4678 (6th Cir. Tenn. 1960).

Burden is on the claimant to establish that the injury or death arose out of and in the course of the employment. Gridley v. Liberty Mut. Ins. Co., 208 Tenn. 124, 344 S.W.2d 356, 1961 Tenn. LEXIS 403 (1961).

Evidence to the effect that employee left his automobile and deliberately ran 30 feet and placed his body beneath a moving train sustained the finding of the trial judge that employee's death resulted from suicide and did not arise out of and in the course of his employment as sales manager. Gridley v. Liberty Mut. Ins. Co., 208 Tenn. 124, 344 S.W.2d 356, 1961 Tenn. LEXIS 403 (1961).

Injury to policeman during off-duty hours occurring as a result of an offense committed in his presence was compensable where policemen were obligated to make such arrests. Gallatin v. Anderson, 209 Tenn. 392, 354 S.W.2d 84, 1962 Tenn. LEXIS 369 (1962).

From evidence which established that a pot attendant for an aluminum company had a diseased heart when he began work on the day of his heart attack, the court found as a fact that exertion of his work either aggravated the heart condition or his physical disability, or caused the attack which resulted in his death; therefore, the deceased sustained an accident arising out of and in the course of his employment. Blair v. Aluminum Co. of America, 217 F. Supp. 471, 1962 U.S. Dist. LEXIS 3077 (E.D. Tenn. 1962).

If there was a causal connection between deceased's heart attack and his work, then his disability and death resulted from an accident that arose out of and in the course of his employment. Blair v. Aluminum Co. of America, 217 F. Supp. 471, 1962 U.S. Dist. LEXIS 3077 (E.D. Tenn. 1962).

“Arising out of” and “in the course of” are but facets of the single question of whether the injury was accidental and work-connected. Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964).

Evidence that employee suffered heart attack shortly after he returned from lunch hour during which he had mowed lawn on hot day and became ill shortly after return would not support finding of causal connection between injury and employment. Cas Walker's Cash Stores, Inc. v. Livesay, 215 Tenn. 306, 385 S.W.2d 745, 1965 Tenn. LEXIS 618 (1965).

If, upon undisputed proof, it is conjectural whether disability resulted from a cause operating within petitioner's employment, or a cause operating without his employment, there can be no award. Tibbals Flooring Co. v. Stanfill, 219 Tenn. 498, 410 S.W.2d 892, 1967 Tenn. LEXIS 369 (1967).

Where the employer construction company frequently performed work in localities away from its principal office, and the employees were required to provide their own transportation and were not paid for any time up until they actually went to work on the job site, the plaintiff employee was simply a commuter, and the accident which occurred on the 115 mile trip back to his home from the job site did not arise out of his employment. Smith v. Royal Globe Ins. Co., 551 S.W.2d 679, 1977 Tenn. LEXIS 527 (Tenn. 1977).

Where the death certificate stated that the cause of death in an automobile accident was “an apparent heart attack,” and although there was a stipulation that death occurred in the course of deceased's employment, and testimony that deceased was a hard worker and frequent traveler, this was not sufficient to raise presumption that death arose out of employment. Collins v. Liberty Mut. Ins. Co., 561 S.W.2d 456, 1978 Tenn. LEXIS 582 (Tenn. 1978).

The medical proof that the injury was caused in the course of the employee's work must not be speculative or so uncertain regarding the cause of injury that attributing it to the plaintiff's employment would be an arbitrary determination or a mere possibility. Bolton v. CNA Ins. Co., 821 S.W.2d 932, 1991 Tenn. LEXIS 483 (Tenn. 1991).

Evidence supported the trial court's finding that conditions of employment — stress associated with driving a truck through an ice storm — precipitated the employee's stroke. Reeser v. Yellow Freight Sys., 938 S.W.2d 690, 1997 Tenn. LEXIS 107 (Tenn. 1997).

Where an employee suffered a fatal heart attack while driving the employer's vehicle home from work, the employee's widow and son were entitled to death benefits, funeral expenses, and medical expenses; the trial court was permitted to believe his doctor's testimony that the employee's heart attack could have resulted from the physical exertion of his job. Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 2004 Tenn. LEXIS 173 (Tenn. 2004).

Evidence did not preponderate against the trial court's finding that the employee's death arose out of his employment where the shooting was related to the employee's employment as he was outside the employer's office waiting to get paid in accordance with the employer's payment procedure when the shooting occurred; the shooting occurred while the employee was within the time and place of his employment and while he was following the employer's procedures for collecting his paycheck. Hurst v. Ready, 197 S.W.3d 756, 2006 Tenn. LEXIS 598 (Tenn. July 7, 2006).

81. —“Arising out of” and “In Course of” Distinguished.

“Arising out of employment” refers to the origin of the injury, while “in course of employment” refers to time, place and circumstance. Hendrix v. Franklin State Bank, 154 Tenn. 287, 290 S.W. 30, 1926 Tenn. LEXIS 125 (1926); Early Stratton Co. v. Rollison, 156 Tenn. 256, 300 S.W. 569, 1927 Tenn. LEXIS 110 (1927); McConnell v. Lancaster Bros., 163 Tenn. 194, 42 S.W.2d 206, 1931 Tenn. LEXIS 97 (1931); McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956); Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940, 1964 Tenn. LEXIS 454 (1964).

The injury must arise “out of” the employment as well as “in the course of” employment. Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954, 1949 Tenn. LEXIS 384 (1949); McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956).

The qualifying terms of this section are connected by the conjunction and both conditions must obtain before compensation for the injury can be claimed. It is not sufficient that the injury resulted from an accident received in the course of employment. Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771, 1951 Tenn. LEXIS 314 (1951), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

The terms “arising out of employment” and “in the course of employment” are not synonymous, and if an employee suffers an accident in the course of employment it does not necessarily follow that the injury arose out of and in the course of his employment. Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897, 1957 Tenn. LEXIS 330 (1957).

The phrases “arising out of” and “in the course of” are not synonymous, but, rather, embody distinct concepts which are primarily basic to liability under the Workers' Compensation Law. Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765, 1966 Tenn. LEXIS 617, 1966 Tenn. LEXIS 618 (1966), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

The phrase “in the course of” refers to time and place and “arising out of” to cause or origin. Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760, 1968 Tenn. LEXIS 470 (1968).

The phrase, “in the course of,” refers to time and place, and “arising out of,” to cause or origin; an injury by accident to an employee is “in the course of” employment if it occurred while he was performing a duty he was employed to do, and it is an injury “arising out of” employment if caused by a hazard incident to such employment, citing Travelers Ins. Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 1965 Tenn. LEXIS 543 (1965); Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

The terms “arising out of employment” and “in the course of employment” are not synonymous; an injury occurs “in the course of employment” if it takes place while the employee was performing a duty he was employed to perform; in contrast, “arising out of” employment refers to cause or origin. Houser v. Bi-Lo, Inc., 36 S.W.3d 68, 2001 Tenn. LEXIS 54 (Tenn. 2001).

An injury occurs “in the course of” employment if it takes place while the employee was performing a duty he was employed to perform, whereas an injury arises out of employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be done and the resultant injury. Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 2001 Tenn. LEXIS 140 (Tenn. 2001), rehearing denied, Cunningham v. Shelton Sec. Serv., Inc. , — S.W.3d —, 2001 Tenn. LEXIS 381 (Tenn. 2001).

Statutory requirements that the injury arise out of and occur in the course of the employment are not synonymous; an injury occurs in the course of employment if it takes place while the employee was performing a duty he or she was employed to perform, and therefore the course of employment requirement focuses on the time, place, and circumstances of the injury. Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 2004 Tenn. LEXIS 173 (Tenn. 2004).

82. —“Employment”.

83. — —Construction and Application of Term.

The word “employment” as used in this statute will be given a liberal rather than a restricted meaning. McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956).

Employee may not recover workers' compensation benefits for emotional injuries resulting from sexual harassment by a supervisor because the employee's injuries did not arise out of her employment where supervisor's motive for harassment was purely personal in nature, was not related to furthering the business of the employer and there is no indication that the nature of the employer's business was such that the risk of harassment was a reasonable hazard of or normal component of the employee's working relationship. Anderson v. Save-A-Lot, Ltd., 989 S.W.2d 277, 1999 Tenn. LEXIS 45 (Tenn. 1999), rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 110 (Tenn. Mar. 1, 1999).

84. —Injury within Contemplation — Requirement.

The injury, to be compensable, must be one that by the exercise of foresight the employer might have contemplated as a result of engaging in the business and contracting with his workmen. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924); Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87, 1947 Tenn. LEXIS 316 (1947); Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

Recovery will be denied when the employee voluntarily engages in work not only outside of his employment but involving an added element of peril which could not reasonably have been anticipated as applicable to the work for which he had been employed. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924).

In order to be compensable, an injury need not to have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence, and reasonably have been, if thought of at the time of employment, considered a risk. Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389, 1954 Tenn. LEXIS 464 (1954).

If the injury can be seen to have followed as a natural incident of the work of the employee and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment it arises out of the employment. Volz v. Southerland, 200 Tenn. 344, 292 S.W.2d 385, 1956 Tenn. LEXIS 416 (1956).

An accident arises out of employment when it is apparent to the rational mind upon consideration of all the circumstances that there is a causal connection between work required to be done and the resultant injury. Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897, 1957 Tenn. LEXIS 330 (1957).

Ordinary and usual exertion at work resulting in injury is compensable. Nashville Pure Milk Co. v. Rychen, 204 Tenn. 575, 322 S.W.2d 432, 1958 Tenn. LEXIS 277 (1958).

In order to be compensable, an injury need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence and reasonably have been, if thought of at the time of employment, considered a risk. West Tennessee Nix-A-Mite Systems, Inc. v. Funderburk, 208 Tenn. 381, 346 S.W.2d 250, 1961 Tenn. LEXIS 296 (1961); Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964); Ward v. Ward, 213 Tenn. 657, 378 S.W.2d 754, 1964 Tenn. LEXIS 434 (1964).

There must be some causal relation between the employment and the injury, but if the injury is one which after the event may seem to have had its origin in the employment, it need not be shown that it is one that ought to have been foreseen or expected. W. S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493, 1961 Tenn. LEXIS 323 (1961).

The question of whether a death resulting from a heart attack in the course of employment can be compensable as arising out of the employment is a question of fact to be resolved by the trial court on the basis of whether or not there was a causal connection between the heart attack and the employment. Ward v. Commercial Ins. Co., 213 Tenn. 100, 372 S.W.2d 292, 1963 Tenn. LEXIS 473 (1963); Cas Walker's Cash Stores, Inc. v. Livesay, 215 Tenn. 306, 385 S.W.2d 745, 1965 Tenn. LEXIS 618 (1965).

85. —Acts for Employer's Benefit.

Acts for the employer's benefit are usually held to arise out of the employment, if expressly, impliedly or reasonably authorized. Tallent v. M. C. Lyle & Son, 187 Tenn. 482, 216 S.W.2d 7, 1948 Tenn. LEXIS 454 (1948); McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956); Sharp v. Jenkins, 211 Tenn. 691, 367 S.W.2d 464, 1963 Tenn. LEXIS 392 (1963).

Where duties of employee employed by sole employer were many and varied and include driving employer's automobile both for business purposes and for purposes purely personal to the employer, and where employee was injured while driving employer on a trip which was purely personal to the employer but which was not personal to employee and which employee was making solely because directed to do so by employer, employee's injury arose out of and was in the course of employment and was compensable under statute. McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956).

Where it was undisputed that the usual lunch time procedures, which were known and participated in by employer, regularly involved one of the employees leaving the premises and obtaining lunch for the others who remained at their work stations; that on the date of the accident, plaintiff had brought his own lunch to work with him that morning and therefore had no reason to leave work at lunch time except to obtain lunch for his coworkers; and that plaintiff's journey, although arguably unknown to his employer on February 15, 1980, not only benefitted his employer by allowing the other employees to keep on working while plaintiff was obtaining their lunch, but also subjected plaintiff to a definite risk or hazard on the road, chancellor's finding that plaintiff sustained a compensable injury arising out of and in the course of his employment when he was involved in an accident during the trip would be upheld. McCammon v. Neubert, 651 S.W.2d 702, 1983 Tenn. LEXIS 663 (Tenn. 1983).

86. —Recreation or Social Activities.

Employee injured while playing basketball on break from work at home of customer was not injured as an incident of his employment and was not entitled to workers' compensation. Ward v. Mid-South Home Service, 769 S.W.2d 486, 1989 Tenn. LEXIS 140 (Tenn. 1989).

Neither mere encouragement nor the offer of a nominal cash prize is enough to transform what would otherwise be a voluntary activity into one within the course of employment. Phyllis A. Young v. Taylor-white, LLC., 181 S.W.3d 324, 2005 Tenn. LEXIS 853 (Tenn. Oct. 20, 2005).

Where an employee injured her shoulder while participating in races during an employer-sponsored company picnic, the injury did not occur in the course of her employment; the picnic was held on a Saturday, outside of work hours, at a public park off of the company's premises. Phyllis A. Young v. Taylor-white, LLC., 181 S.W.3d 324, 2005 Tenn. LEXIS 853 (Tenn. Oct. 20, 2005).

87. —Nonbeneficial Acts.

It is not essential that the employee be engaged in an act directly beneficial to his employer in order that the resulting injury may be said to have arisen out of the employment. Chamber of Commerce v. Turner, 158 Tenn. 323, 13 S.W.2d 318, 1928 Tenn. LEXIS 156 (1929).

88. —Emergency.

A timekeeper, a part of whose duties it was to supervise conditions in the yard adjoining his office, when there was a degree of emergency calling for his physical effort in moving a concrete mixer that obstructed the office entrance, was not so far a volunteer as to deprive him of compensation for an injury that resulted. Roehl v. Graw, 161 Tenn. 461, 32 S.W.2d 1049, 1930 Tenn. LEXIS 30 (1930).

An employee performing an act made necessary by an emergency in his employer's business does not thereby lose the protection of the statute. Travelers Ins. Co. v. Dudley, 180 Tenn. 191, 173 S.W.2d 142 (1943).

89. —Acts of God.

Injuries resulting from acts of God are compensable when the employee, by reason of his employment, is subjected to a hazard from such act of God not common to the general public, but peculiar to the nature of the employment and to the conditions under which that employment is required to be performed. Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389, 1954 Tenn. LEXIS 464 (1954).

Where employee was killed by tornado while being driven in employer's truck from the job to sleeping quarters furnished by employer, injury did not arise out of the employment and is not compensable. Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389, 1954 Tenn. LEXIS 464 (1954).

Finding of trial judge to effect that worker killed by lightning was subjected to an extra hazard by his employment so that his death was compensable was supported by substantial evidence where the evidence was to the effect that while such worker was working out-of-doors and pursuant to his duties he was killed in act of cutting off the ignition of an iron or steel irrigation pump with aluminum pipes connected therewith when a lightning stroke was conducted into his body through such instrumentality. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

Acts of God are compensable under the statute where the employee by reason of his duties is exposed to a peculiar danger from such act that is greater than that of persons generally in the community. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

Where a night watchman on duty was killed when the building in which he was working collapsed after being hit by a tornado, his survivor was not entitled to recover compensation since acts of God are compensable only where the employee, by reason of his employment, is subjected to hazards from such act of God not common to the general public, but peculiar to the nature of the employment and to the conditions under which that employment is required to be performed, in which case they arise out of and in the course of the employment. Hill v. St. Paul Fire & Marine Ins. Co., 512 S.W.2d 560, 1974 Tenn. LEXIS 488 (Tenn. 1974).

The rule of law requiring that, to be compensable as arising out of and in the course of employment, injuries resulting from an act of God must arise from a situation where the employee, by reason of his employment, is subjected to hazards from such act of God not common to the general public, but peculiar to the nature of the employment and to the conditions under which that employment is required to be performed, does not violate the equal protection of laws clause of the U.S. Const., amend. 14. Hill v. St. Paul Fire & Marine Ins. Co., 512 S.W.2d 560, 1974 Tenn. LEXIS 488 (Tenn. 1974).

90. —Servant Engaged in Business of Both Employer and Self.

If the business of the master creates the necessity for the travel, the servant is in the course of his employment although he is furthering at the same time some purpose of his own. Patton v. L. O. Brayton & Co., 184 Tenn. 592, 201 S.W.2d 981, 1947 Tenn. LEXIS 281 (1947).

91. —Union Activity.

A union activity is in the course of employment if the activity is of mutual benefit to the employee and the employer. Jones v. Hartford Acci. & Indem. Co., 811 S.W.2d 516, 1991 Tenn. LEXIS 195 (Tenn. 1991).

Where plaintiff/union chairperson was summoned by a direct order from the owner of the plant to receive and pass along a message to the union's business manager, the content of which was related directly to the plant owner's authority to question employees in general, and plaintiff specifically, about their employment status, the receipt and conveyance of this message served the purpose of and benefited the employer, and was in the course of the plaintiff's employment. Jones v. Hartford Acci. & Indem. Co., 811 S.W.2d 516, 1991 Tenn. LEXIS 195 (Tenn. 1991).

92. —Voluntary Departure from Service of Employer.

No compensation where injury is incurred while employee departs from service and is rendering voluntary aid to a third person. American Casualty Co. v. McDonald, 166 Tenn. 25, 57 S.W.2d 795, 1932 Tenn. LEXIS 107 (1933).

When an employee or worker steps aside from his employment on a personal mission, it is a departure from such employment and an injury during such mission does not arise out of and in the course of his employment. Free v. Indemnity Ins. Co., 177 Tenn. 287, 145 S.W.2d 1026, 1940 Tenn. LEXIS 37 (1941).

Medical testimony and testimony of employee adequately supported trial judge's finding that the employee was disabled and did not quit her job voluntarily. Continental Ins. Co. v. Dowdy, 560 S.W.2d 619, 1978 Tenn. LEXIS 570 (Tenn. 1978).

93. —Violation of Instructions.

An ore shoveler, who departed from his designated field voluntarily and against instructions engaged in work about a freight car where there was added peril, may not recover. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924).

The violation by an employee of an instruction with regard to conduct of the employee within the sphere of his employment will not place the resultant activity of the employee outside the scope of his employment, if it be short of willful misconduct. Kingsport Foundry & Machine Works, Inc. v. Sheffey, 156 Tenn. 150, 299 S.W. 787, 1927 Tenn. LEXIS 97 (1927).

94. —Unauthorized Absence of Employee.

Where a nightwatchman, whose general duties were to remain on the premises and watch employer's plant, was injured while returning from a restaurant where he had gone to obtain food, without the knowledge or acquiescence of employer, he was not entitled to compensation, as the employment was suspended while the employee was off the employer's premises on a personal mission. Toombs v. Liberty Mut. Ins. Co., 173 Tenn. 38, 114 S.W.2d 785, 1937 Tenn. LEXIS 10 (1938).

95. —Right to Limit Scope of Employee's Work.

The employer has a right to limit the scope of the engagement of an employee to a restricted field or portion of work with reference to the employee's peculiar fitness. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924); Roehl v. Graw, 161 Tenn. 461, 32 S.W.2d 1049, 1930 Tenn. LEXIS 30 (1930).

96. —Injury on Premises While Not at Work.

A laundry employee, injured while pressing a skirt for a fellow employee, on a day of the week when individual laundering was forbidden and after regular work hours, was not in the course of employment. Hinton Laundry Co. v. De Lozier, 143 Tenn. 399, 225 S.W. 1037, 1920 Tenn. LEXIS 27, 16 A.L.R. 1361 (1920).

Employee, allowed to eat lunches on premises, in returning to place of work, with lunch procured outside with intent to eat on premises and injured on employer's elevator, is entitled to compensation. Johnson Coffee Co. v. McDonald, 143 Tenn. 505, 226 S.W. 215, 1920 Tenn. LEXIS 37 (1920).

Employee, who fell into a reservoir and was drowned while washing up to go home, according to custom, recovers. Tennessee Chemical Co. v. Smith, 145 Tenn. 532, 238 S.W. 97, 1921 Tenn. LEXIS 93 (1922).

Employee, while departing from but while yet on the employer's premises, and while using a commonly used exit, injured when crawling under a car that blocked such way, recovers. Moore v. Cincinnati, N. O. & T. P. R. Co., 148 Tenn. 561, 256 S.W. 876, 1923 Tenn. LEXIS 43 (1923), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Employee, caretaker of a poultry car in a train, having temporarily dismounted from the car because of necessity or reasonable occasion not involving a departure from the place of work, is entitled to compensation for injury outside of but near to his car. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928).

An injury suffered by an employee during noon intermission while on the premises watching a game of basketball encouraged by the employer is compensable. Kingsport Silk Mills v. Cox, 161 Tenn. 470, 33 S.W.2d 90, 1930 Tenn. LEXIS 31 (1930).

As regards obligation of employer to protect servant, the relation of master and servant is not suspended during the noon hour, where the master expressly or by fair implication invites his servants to remain on the premises in the immediate vicinity of the work. Kingsport Silk Mills v. Cox, 161 Tenn. 470, 33 S.W.2d 90, 1930 Tenn. LEXIS 31 (1930).

Injury caused by employee's attempt in a sportive spirit to jump over the hood of an automobile is not compensable. Hawkins v. National Life & Acci. Ins. Co., 164 Tenn. 36, 46 S.W.2d 55, 1931 Tenn. LEXIS 7 (1932). See Kingsport Silk Mills v. Cox, 161 Tenn. 470, 33 S.W.2d 90, 1930 Tenn. LEXIS 31 (1930).

Where an employer provided a cafeteria for his employees and an employee while on the employer's premises and en route to the cafeteria had an accident, the injury arose out of and in the course of the employment and was compensable under this act. Kaylor v. Magill, 181 F.2d 179, 1950 U.S. App. LEXIS 2576 (6th Cir. Tenn. 1950).

“Premises” under compensation statute means the part of employer's property where the employee is required to work, including part which he is required to use for ingress and egress, in issue of whether employee is injured in course of employment after work. Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386, 1955 Tenn. LEXIS 337 (1955), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

An employee may be injured on the employer's property and still not be involved in conduct which will make the injury compensable, the mere fact that the employee was injured on the employer's premises or property not being determinative. Travelers Indem. Co. v. Charvis, 221 Tenn. 593, 428 S.W.2d 797, 1968 Tenn. LEXIS 489 (1968).

Employee, who asked permission to leave employer's premises to get a dress for her own use after work and was struck by car in employer's parking lot near her own automobile which was parked in lot for her convenience, was on a personal mission and not entitled to compensation. Shelby Mutual Ins. Co. v. Cates, 223 Tenn. 442, 446 S.W.2d 682, 1969 Tenn. LEXIS 429 (1969).

Where employee was required to be on employer's premises at night and was accidentally shot to death by fellow employee while at living quarters provided by employer on such premises, death arose out of and in course of employment. Williams v. Preferred Development Corp., 224 Tenn. 174, 452 S.W.2d 344, 1970 Tenn. LEXIS 310 (1970).

Where employer required employees to go to and from work through lunch and locker room, such place became an “element or factor” in the employment so that employer owed employees same duty of protection there as where they worked, and employee injured after work when she leaned against table in lunch and locker room when table collapsed, was injured by accident, which arose out of and in course of employment. Drinnon v. Knox Mfg. Co., 481 S.W.2d 380, 1972 Tenn. LEXIS 345 (Tenn. 1972).

Where employee slipped on an icy slab as she came out of the building where she worked en route to a lunch wagon, her injury arose out of and in the course of her employment. Hankins v. Camel Mfg. Co., 492 S.W.2d 212, 1973 Tenn. LEXIS 510 (Tenn. 1973).

Where employee was injured after leaving work by stepping into hole in employer-owned and maintained parking lot, such hole having been hidden by water after heavy downpour of rain, employee's injury arose out of and in the course of her employment. Kellwood Co. v. Gibson, 581 S.W.2d 645, 1979 Tenn. LEXIS 438 (Tenn. 1979), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Where the employee is injured on the employee's premises during a break period provided by the employer, such an injury is generally compensable. Drew v. Tappan Co., 630 S.W.2d 624, 1982 Tenn. LEXIS 395 (Tenn. 1982); Holder v. Wilson Sporting Goods Co., 723 S.W.2d 104, 1987 Tenn. LEXIS 814 (Tenn. 1987).

97. —Injury as Result of Assault.

An assault “arises out of the employment” if the assault is causally related to the work. Whaley v. Patent Button Co., 184 Tenn. 700, 202 S.W.2d 649, 1947 Tenn. LEXIS 291 (1947).

An injury as a result of an assault is held to be one arising out of the employment, hence compensable, if a causal connection appears between the employment and the assault, or the assault was a risk peculiarly incident to the particular employment. Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954, 1949 Tenn. LEXIS 384 (1949).

It is now well settled in these workers' compensation cases that the fact that an injury is the result of the willful or criminal assault of another does not prevent the injury from being accidental. Turner v. Bluff City Lumber Co., 189 Tenn. 621, 227 S.W.2d 1, 1950 Tenn. LEXIS 401 (1950).

Murder of claimant's decedent in workers' compensation case did not arise out of or in the course of his employment where it resulted from fellow employee's belief that decedent had framed him in an illicit love affair, rather than antagonism over their job relationship. Dismuke v. Arkansas-Best Freight Systems, Inc., 346 F.2d 145, 1965 U.S. App. LEXIS 5461 (6th Cir. Tenn. 1965).

Where an altercation between the decedent and another employee originated in an argument concerning the work that the other employee was performing and the entire focus of the dispute was apparently related to the employment setting, the death of the decedent as a result of being shot by the other worker arose out of the decedent's employment. Woods v. Harry B. Woods Plumbing Co., 967 S.W.2d 768, 1998 Tenn. LEXIS 194 (Tenn. 1998).

98. —Injury by Fellow Servant.

As a general rule, where an employee is intentionally injured by a fellow servant, there is no liability. Milne v. Sanders, 143 Tenn. 602, 228 S.W. 702, 1920 Tenn. LEXIS 48 (1921).

Where an employee, driver of a truck, and another employee, a shipping clerk who had charge of the former, had an altercation about the former's work, and the latter called in a third employee whose duty it was to keep the trucks in order and who fired a shot that killed the truck driver, in an effort to take him before the employer, the death was in the course of employment. Early Stratton Co. v. Rollison, 156 Tenn. 256, 300 S.W. 569, 1927 Tenn. LEXIS 110 (1927).

An employee injured in the course of employment by the horseplay of his fellow workers in which he took no part may recover. Borden Mills, Inc. v. McGaha, 161 Tenn. 376, 32 S.W.2d 1039, 1930 Tenn. LEXIS 15 (1930).

Death of an employee shot by another, where there was no right of supervision, as result of ill will engendered by language used in previous conversation, had no relation to the employment, but arose out of a matter purely personal. Forbess v. Starnes, 169 Tenn. 594, 89 S.W.2d 886, 1935 Tenn. LEXIS 87 (1936).

There can be no award for an assault by a fellow employee in a personal difficulty to employees if the difficulty was unrelated to their employment or not in furtherance of their employer's business. Kinkead v. Holliston Mills, 170 Tenn. 684, 98 S.W.2d 1066, 1936 Tenn. LEXIS 49 (1936).

Award of compensation was proper where the petitioner sustained injuries to his finger during the course of an argument with a fellow employee while in the performance of his duties as an employee. Turner v. Bluff City Lumber Co., 189 Tenn. 621, 227 S.W.2d 1, 1950 Tenn. LEXIS 401 (1950).

Petitioner's injury “arose out of” his employment where it resulted from a fight between him and a coworker, out of a personal altercation between them over accusations by the coworker that petitioner had stolen his pistol, although the employer had not instructed and did not require the coworker to possess a pistol in connection with his employment and did not know that he had one, where it could reasonably be said that one would expect petitioner and his coworkers, performing their duties as they did, to have a weapon of some sort nearby to protect themselves. Jim Reed Chevrolet Co. v. Watson, 194 Tenn. 617, 254 S.W.2d 733, 1953 Tenn. LEXIS 278 (1953).

Where employee was shot and killed by fellow servant after he made an unprovoked attack on such fellow servant in an encounter which was personal between the parties, such homicide did not arise out of and in the course of employment. Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897, 1957 Tenn. LEXIS 330 (1957).

Where one employee assaults another solely to gratify his feeling of anger or hatred, such an act results from the voluntary act of the assailant and cannot be said to arise either directly out of the employment or as an incident thereto; however, when the assault is incidental to some duty of the employment, such assault is ordinarily held to arise out of the employment. W. S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493, 1961 Tenn. LEXIS 323 (1961).

If an assault by a fellow employee grew out of an argument over the work, the possession of tools or equipment used in the work or out of similar circumstances, such assault is compensable. W. S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493, 1961 Tenn. LEXIS 323 (1961).

Where the environment of the employment increases the probability of quarrels and an employee is thus injured, such injury is compensable. W. S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493, 1961 Tenn. LEXIS 323 (1961).

The death of an employee murdered at work by a fellow-employee who accused him of framing him in an illicit love affair was noncompensable. Dismuke v. Arkansas-Best Freight Systems, Inc., 346 F.2d 145, 1965 U.S. App. LEXIS 5461 (6th Cir. Tenn. 1965).

Where an encounter or altercation between two employees is “personal” between the parties, the resulting injuries do not arise out of and in the course of employment. Brimhall v. Home Ins. Co., 694 S.W.2d 931, 1985 Tenn. LEXIS 526 (Tenn. 1985).

99. —Injury by Third Person.

A porter, who, while sweeping out a showroom, was shot by an air rifle in the hands of children accompanying employer's customer, was entitled to recover. Carmichael v. J. C. Mahan Motor Co., 157 Tenn. 613, 11 S.W.2d 672, 1928 Tenn. LEXIS 228 (1928).

The term “arising out of employment” refers to the origin of the cause of the injury. Death of employee in course of his employment from shot fired by third party as result of a purely personal difficulty unconnected with the employment was not compensable. McConnell v. Lancaster Bros., 163 Tenn. 194, 42 S.W.2d 206, 1931 Tenn. LEXIS 97 (1931).

Employee shot while operating a machine by disappointed former employee who fired a rifle through window of factory was entitled to recover compensation, since there was a causal connection between the work being performed and the resulting injury. Whaley v. Patent Button Co., 184 Tenn. 700, 202 S.W.2d 649, 1947 Tenn. LEXIS 291 (1947).

Death of employee who was killed by husband at place of employment as result of domestic argument did not arise out of her employment. White v. Whiteway Pharmacy, Inc., 210 Tenn. 449, 360 S.W.2d 12, 1962 Tenn. LEXIS 306 (1962).

Injuries suffered during rape of convenience store manager, who was custodian of her employer's valuable property and visibly identified as such, arose out of such employment. Jesse v. Savings Products, 772 S.W.2d 425, 1989 Tenn. LEXIS 247 (Tenn. 1989).

Where the injury occurred near place of employment while the employee was riding home along the usual and most direct route in an automobile which overturned by reason of the incomplete state of the road, on which he was working, he had not passed beyond what, in a broad sense, was the working premises or place and work upon which he was engaged. Washington County v. Evans, 156 Tenn. 197, 299 S.W. 780, 1927 Tenn. LEXIS 103 (1927).

The general rule is that an injury on the way to or from work, away from the employer's premises, is not compensable. Little v. Johnson City Foundry & Machine Co., 158 Tenn. 102, 11 S.W.2d 690, 1928 Tenn. LEXIS 129 (1928), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989); Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771, 1951 Tenn. LEXIS 314 (1951), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989); Webster v. Teledyne Lewisburg & Argonaut Ins. Co., 674 S.W.2d 725, 1984 Tenn. LEXIS 832 (Tenn. 1984).

Where the employee was at the time of the injury traveling on a public street 500 feet away from the place of work selected by his own choice and not imposed in any way by the contract of employment, he was not allowed compensation. Little v. Johnson City Foundry & Machine Co., 158 Tenn. 102, 11 S.W.2d 690, 1928 Tenn. LEXIS 129 (1928), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Though the general rule is that injury on way to or from work is not compensable, compensation may be recovered where the employee is on the street so near to the place of work as “to be intended by the contract of employment as being the means of access to the work.” Little v. Johnson City Foundry & Machine Co., 158 Tenn. 102, 11 S.W.2d 690, 1928 Tenn. LEXIS 129 (1928), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

The general rule as to compensation where employee is injured on way to or from work is subject to an exception where the contract of employment subjects the employee to such hazards as are incident to performance of duty. Thus, where employee was injured while crossing a street near the office of employment carrying reports and funds for delivery to the employer, he was in course of employment. Central Surety & Ins. Corp. v. Court, 162 Tenn. 477, 36 S.W.2d 907, 1930 Tenn. LEXIS 111 (1931).

While on his way to the office of employer, an employee collector as one of a crowd was held up for robbery, not because he was a collector, but as one of a crowd held up at the same time. Employee's death was not compensable. Porter v. Travelers' Ins. Co., 163 Tenn. 526, 43 S.W.2d 1066, 1931 Tenn. LEXIS 144 (1931).

A police officer, having no hour or limitation on his services and whose place of employment included the entire territory within the municipal boundaries, who was on his way home in uniform when struck by an automobile driven by a drunken driver was in the course of employment at the time of his injury. Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, 1937 Tenn. LEXIS 16 (1938).

The relation between master and his servant is suspended when the servant leaves the place of actual employment to go to his home for rest or food or to associate with his family. Free v. Indemnity Ins. Co., 177 Tenn. 287, 145 S.W.2d 1026, 1940 Tenn. LEXIS 37 (1941); Patton v. L. O. Brayton & Co., 184 Tenn. 592, 201 S.W.2d 981, 1947 Tenn. LEXIS 281 (1947).

In cases where an employee is departing from or coming to his work, an injury off the premises of the employer or place of work is not compensable unless the injury is so close by or so nearly adjoining that it might reasonably be considered as in effect at the place, or unless he is using immediate means of access to or from the work so that he was directly and immediately connected with it. Free v. Indemnity Ins. Co., 177 Tenn. 287, 145 S.W.2d 1026, 1940 Tenn. LEXIS 37 (1941).

Where used car salesman was injured when he fell on ice on his way to his car from his place of employment and where his intention at the time was to drive to the grocery store to buy groceries for his personal use and then proceed to the place of employment of a prospective customer to tell him of the rejection of an offer to buy a car and after this to go home for supper and then return to the office for work, such employee had departed from the scope of his employment at the time of his injury and was on a private mission so that he was not entitled to compensation. Free v. Indemnity Ins. Co., 177 Tenn. 287, 145 S.W.2d 1026, 1940 Tenn. LEXIS 37 (1941).

An accident occurring upon public way is not compensable unless employee is engaged in work for his employer. Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771, 1951 Tenn. LEXIS 314 (1951), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

The supreme court has rejected the general statement that an accident suffered by an employee in going to and coming from work was compensable if it occurred on the employer's premises, or so near the place of employment as reasonably would be regarded as in effect at the place. Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771, 1951 Tenn. LEXIS 314 (1951), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

If a process of going to and from work is furnished by the employer, or is required by the employer to be done in a certain manner or over a certain way, and this submits the employee to a definite special hazard, then in such event such accidents are compensable. The employee is not to be considered in the course of his employment until he has actually arrived at his place of employment ready to begin his activities in the employer's work unless these qualifications are applicable. Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771, 1951 Tenn. LEXIS 314 (1951), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Where plaintiff was injured in fall on sidewalk in front of employer's place of business while on her way home, such injury was not in the course of her employment where there was no allegation that the sidewalk was defective nor that the wax which plaintiff alleged adhered to her shoe was the cause of her fall, and there was no allegation that work for employer which plaintiff contemplated doing at home was other than voluntary. James v. Sanders Mfg. Co., 203 Tenn. 274, 310 S.W.2d 466, 1958 Tenn. LEXIS 300 (1958).

Where employee of beauty salon located in department store was injured when she entered store while on her way to work, but at an entrance where employees were not supposed to enter, and before she reached the place where her record card and money bag were located, the injury was not in the course of her employment. Anderson v. Royal Indem. Co., 169 F. Supp. 122, 1958 U.S. Dist. LEXIS 3287 (D. Tenn. 1958).

As a general proposition, injuries arise out of and in the course of employment when an employee is using the transportation provided by his employer in going to and returning from his work. Ward v. Ward, 213 Tenn. 657, 378 S.W.2d 754, 1964 Tenn. LEXIS 434 (1964).

Employee who was fatally injured in company car while on his way back to place of employment in Tennessee after visiting his family in Alabama and who was instructed to stop on the way to check a completed job in another town was killed in accident arising out of and in the course of his employment. Ward v. Ward, 213 Tenn. 657, 378 S.W.2d 754, 1964 Tenn. LEXIS 434 (1964).

Claimant's activities were not sufficiently within the scope of his employment to warrant coverage under the Workers' Compensation Act where, on his way home from work, he had purchased supplies for the job and, on his way to employment the following morning, transporting such supplies, an automobile accident resulted in his death. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

Where it was customary for employee to pick up small equipment on his way home and take them to work with him the following day but equipment could have been picked up or delivered during the day and such action was not expressly authorized but only permitted, facts were such as to indicate that trips were primarily for benefit of employee and to sustain action of trial court in denying compensation for death of employee killed on way to work. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

An employee is not entitled to compensation for injury in parking lot of employer before starting the day's work and while walking to that part of the premises where the work was required where the parking of the automobile in the lot was permitted but not required and the route taken to work was of the employee's own choosing. McKinney v. Hardwick Clothes, Inc., 217 Tenn. 457, 398 S.W.2d 265, 1966 Tenn. LEXIS 605 (1966).

In order for an injury along a required access to place of employment to be compensable the access must not only be required but the usage of the route must subject the employee to a special or inherent hazard of the route. Travelers Indem. Co. v. Charvis, 221 Tenn. 593, 428 S.W.2d 797, 1968 Tenn. LEXIS 489 (1968).

The general rule is that an employee is not in a compensable status until he has reached his station or place of employment. Travelers Indem. Co. v. Charvis, 221 Tenn. 593, 428 S.W.2d 797, 1968 Tenn. LEXIS 489 (1968); Potts v. Heil-Quaker Corp., 482 S.W.2d 135, 1972 Tenn. LEXIS 355 (Tenn. 1972), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

The general rule is that an accidental injury received by an employee while en route to or from his place of employment is not compensable unless the journey itself is a substantial part of the service for which the employee was employed and compensated. Douglas v. Lewis Bros. Bakeries, Inc., 477 S.W.2d 202, 1972 Tenn. LEXIS 390 (Tenn. 1972).

Death of employee who worked regular shift and was also subject to call at any time to make machinery repairs and who was killed in automobile accident en route to place of employment on special call, did not arise out of and in course of his employment. Douglas v. Lewis Bros. Bakeries, Inc., 477 S.W.2d 202, 1972 Tenn. LEXIS 390 (Tenn. 1972).

Where plaintiff was injured in a parking lot which was not on her employer's premises while taking an unpaid lunch break during which she was free to eat lunch at any place of her choice, she was not entitled to workers' compensation benefits, even though her employer requested that she leave the premises during lunch hour. Pacific Employers Ins. Co. v. Booker, 553 S.W.2d 586, 1977 Tenn. LEXIS 586 (Tenn. 1977).

The general rule is that injuries sustained en route to work are not compensable because they do not arise out of and in the course of employment. Frazier v. Normak International, 572 S.W.2d 650, 1978 Tenn. LEXIS 658 (Tenn. 1978), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

There is no iron-clad rule which calls for payment of benefits under the Workers' Compensation Law where an employee suffers a heart attack while at work and for the denial of benefits where the employee suffers a heart attack while on the way home from work. The key to the recovery or denial of benefits is whether the heart attack is precipitated by the physical activity and exertion of the employee's work. Shelby Mut. Ins. Co. v. Dudley, 574 S.W.2d 43, 1978 Tenn. LEXIS 674 (Tenn. 1978).

Where claimant worked in Knoxville and planned an employment-related trip to Paris Landing State Park, and was in Jackson on the morning of the trip, as opposed to Knoxville, but his employer had no interest in any particular route, then at the time of his injury, on the way from Jackson to the state park, the claimant was engaged in a trip made necessary by the requirements of his employment, and thus his injury arose out of and in the course of his employment. Watson v. United States Fire Ins. Co., 577 S.W.2d 668, 1979 Tenn. LEXIS 403 (Tenn. 1979).

A truck driver is exposed to the hazards of the street and where driver was shot by two or three assailants while returning to his truck cab with a carry-out lunch, his injury arose out of his employment. Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d 597, 1979 Tenn. LEXIS 448 (Tenn. 1979).

The need to carry tools coupled with reimbursement of travel expenses removed the case from the general rule of nonliability. Pool v. Metric Constructors, Inc., 681 S.W.2d 543, 1984 Tenn. LEXIS 902 (Tenn. 1984).

The Woods v. Warren rule, understood as encompassing the cases leading up to Woods v. Warren as well as the cases following it, has failed as a test for determining when en route injuries are “in the course of employment.” Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

A worker who is on the employer's premises coming to or going from the actual work place is acting in the course of employment. Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

If the employer has provided a parking area for its employees, that parking area is part of the employer's premises regardless of whether the lot is also available to customers or the general public. Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

The “course of employment” includes not only the time for which the employee is actually paid, but also a reasonable time during which the employee is necessarily on the employer's premises while passing to or from the place where the work is actually done. Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Death of employee, who was killed in accident while on her way home to pick up company document during her lunchbreak, did not arise out of and in the course of employment because employer did not specifically instruct the employee to retrieve the document during her lunchbreak. Stephens v. Maxima Corp., 774 S.W.2d 931, 1989 Tenn. LEXIS 399 (Tenn. 1989).

100. — —Transportation Furnished by Employer.

Generally where an employer is to furnish the employee transportation as an incident to his employment and such employee is accidentally killed or injured on the way to or from work, such injury or death is one that arises out of the course of employment. Norwood v. Tellico River Lumber Co., 146 Tenn. 682, 244 S.W. 490, 1922 Tenn. LEXIS 16, 24 A.L.R. 1227 (1922); W. C. Sharp Drug Stores v. Hansard, 176 Tenn. 595, 144 S.W.2d 777, 1940 Tenn. LEXIS 106 (1940); Vaughn v. Standard Surety & Casualty Co., 27 Tenn. App. 671, 184 S.W.2d 556, 1944 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1944); Choate v. Athens Mfg. Co., 675 S.W.2d 169, 1984 Tenn. LEXIS 837 (Tenn. 1984).

An injury to an employee while riding on a free pass on employer's logging train, out of work hours, while returning to his home after a personal visit, is not compensable. Norwood v. Tellico River Lumber Co., 146 Tenn. 682, 244 S.W. 490, 1922 Tenn. LEXIS 16, 24 A.L.R. 1227 (1922).

Fatal injury of employee, riding to his work on horse supplied by his employer, when horse became frightened at a passing train arose out of and in the course of his employment despite fact that deceased was in immediate control of the horse. McClain v. Kingsport Improv. Corp., 147 Tenn. 130, 245 S.W. 837, 1922 Tenn. LEXIS 26 (1922).

Where drug store was to furnish transportation to its motorcycle messenger and the motorcycle so furnished was to be stored at night at the home of the messenger and where the employee sometimes brought packages home for delivery on the way to work the following morning, the accidental death of such employee which occurred on the way to work while he was riding his own motorcycle on which the store was paying rent after its own motorcycle broke down arose out of and in the course of the employment. W. C. Sharp Drug Stores v. Hansard, 176 Tenn. 595, 144 S.W.2d 777, 1940 Tenn. LEXIS 106 (1940).

Where an employee of a construction outfit was transported to and from work in the employer's truck but was paid only for the hours actually on the job, the transportation was incidental to the employment contract and a part thereof. Vaughn v. Standard Surety & Casualty Co., 27 Tenn. App. 671, 184 S.W.2d 556, 1944 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1944).

Where an employee was injured when being transported from work in his employer's truck, which transportation was incidental to the employment contract and a part thereof, he could not recover on an insurance policy protecting the employer which expressly excluded actions compensable under the Workers' Compensation Law. Vaughn v. Standard Surety & Casualty Co., 27 Tenn. App. 671, 184 S.W.2d 556, 1944 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1944).

Accident arose out of and in the course and scope of the employment where the company provided employee a business use vehicle that he was authorized and expected to use in going to and from work sites to his home. Eslinger v. F & B Frontier Constr. Co., 618 S.W.2d 742, 1981 Tenn. LEXIS 456 (Tenn. 1981).

Where car dealer allowed a salesman to drive demonstrator car home from work, but specified no particular route, a minor deviation from the salesman's usual route did not take the trip outside the scope of the salesman's employment. Anderson v. Sam Monday Motors, 619 S.W.2d 382, 1981 Tenn. LEXIS 467 (Tenn. 1981).

101. — —Transportation for Employer's Benefit.

Where petitioner from the time of his employment to the day of his accident transported some of his fellow employees to and from work, and his employer was interested in this activity, the finding of the chancellor, based upon evidence, that the transportation of employees was a part of the contract of hire, was conclusive, and even apart from this finding, petitioner was entitled to compensation for an injury received in making adjustments to his automobile while waiting for the employer to bring other employees to the point where the automobile was parked and waiting to receive them. Tallent v. M. C. Lyle & Son, 187 Tenn. 482, 216 S.W.2d 7, 1948 Tenn. LEXIS 454 (1948).

102. —Accident Occurring on Public Way.

An accident occurring upon a public way, when the employee is not doing anything for the employer by reason of the employment, is not compensable because not arising out of his employment and not occurring in the course of his employment. Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771, 1951 Tenn. LEXIS 314 (1951), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Ordinarily, if the employment occasions the employee's use of the street, the risk of the street is the risk of the employment. Crane Rental Service v. Rutledge, 219 Tenn. 433, 410 S.W.2d 418, 1966 Tenn. LEXIS 542 (1966).

Where crane operator drove truck carrying part of boom of crane a short distance on street in direction of location of job and then stopped truck and started walking back in direction of employer's premises when he was struck by automobile on street and suffered brain damage which precluded him from testifying, chancellor was justified in reaching conclusion that injuries arose out of and in course of employment. Crane Rental Service v. Rutledge, 219 Tenn. 433, 410 S.W.2d 418, 1966 Tenn. LEXIS 542 (1966).

Where employee gets out of his car in the course of his business to do something for his employer and injury or death is occasioned thereby and a prima facie case is made to this effect, injury or death is compensable. Crane Rental Service v. Rutledge, 219 Tenn. 433, 410 S.W.2d 418, 1966 Tenn. LEXIS 542 (1966).

Employees who must cross a public way that bisects an employer's premises and who are injured on that public way while traveling a direct route between an employer's plant facility and parking lot are entitled to workers' compensation benefits. Copeland v. Leaf, Inc., 829 S.W.2d 140, 1992 Tenn. LEXIS 295 (Tenn. 1992), rehearing denied, — S.W.2d —, 1992 Tenn. LEXIS 305 (Tenn. Apr. 13, 1992).

103. —Traveling Employees.

Where employment requires employee to travel from place to place, the risks of travel are a part of the employment. Where insurance company's inspector was injured by falling from second floor, when he was returning to his hotel room to make out daily reports for his employer, the injury arose out of and in the course of his employment. Employers' Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837, 1937 Tenn. LEXIS 89 (1938) (decision under Kentucky statute).

Where an employee, who is traveling from place to place for his employer, takes time off to engage in some personal venture, the continuity of the employment is broken, and the employee cannot recover compensation for any injury caused in whole or in part by such voluntary venture. Employers' Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837, 1937 Tenn. LEXIS 89 (1938) (decision under Kentucky statute).

Where a traveling salesman on a sales trip and on his regular itinerary met his death in a hotel fire while staying at a hotel where he customarily stopped while on such trips, such salesman met his death by accident arising out of and in the course of his employment. Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

Employee whose employment required him to travel from town to town and who stopped at a restaurant along the way for lunch where he was injured by the assault of an insane man was not entitled to compensation as his injuries were not related to his employment. Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954, 1949 Tenn. LEXIS 384 (1949).

If the duty of the employee creates the necessity for travel, then the risks of travel are directly incident to the employment itself and in such cases resulting injuries are the proper subject for compensation. Martin v. Free Service Tire Co., 189 Tenn. 327, 225 S.W.2d 249, 1949 Tenn. LEXIS 433 (1949).

Where a collector of accounts used his own car to service his accounts with expenses paid by his employer, and, with the knowledge of at least his immediate superior, he often worked beyond 5:30 p.m., it was held that an injury suffered by him from an accident occurring after he had detoured to eat supper with his brother-in-law was an accident arising out of and in the course of his employment. Martin v. Free Service Tire Co., 189 Tenn. 327, 225 S.W.2d 249, 1949 Tenn. LEXIS 433 (1949).

If employee makes trip for benefit of his employer, he is within the scope of his employment while going to and returning from trip, but if trip is for benefit of employee he is not within the scope of his employment while going to and returning from trip. Lumbermen's Mut. Cas. Co. v. Dedmon, 196 Tenn. 94, 264 S.W.2d 567, 1951 Tenn. LEXIS 358 (1951).

A lumber inspector on 24 hour call, who stayed in hotels overnight, who was struck by a car one evening while returning from a personal errand to sportsman shop located across the street from restaurant where he normally ate, was not covered by act, since detour for personal benefit had not been completed at the time of the accident. Lumbermen's Mut. Cas. Co. v. Dedmon, 196 Tenn. 94, 264 S.W.2d 567, 1951 Tenn. LEXIS 358 (1951).

When the duties of an employee require travel, injuries received as a result of hazards to travel are compensable. Gregory v. Porter, 204 Tenn. 582, 322 S.W.2d 591, 1959 Tenn. LEXIS 312 (1959); West Tennessee Nix-A-Mite Systems, Inc. v. Funderburk, 208 Tenn. 381, 346 S.W.2d 250, 1961 Tenn. LEXIS 296 (1961).

Injury received by traveling employee during detour for personal mission is not compensable. Gregory v. Porter, 204 Tenn. 582, 322 S.W.2d 591, 1959 Tenn. LEXIS 312 (1959).

Where traveling employee was injured while driving employer's automobile and returning to city of residence and employment by one of two alternate routes after completing business mission for employer, injury was compensable in absence of evidence to rebut presumption that he was on a business errand. Gregory v. Porter, 204 Tenn. 582, 322 S.W.2d 591, 1959 Tenn. LEXIS 312 (1959).

An unauthorized deviation may preclude recovery of compensation for an injury caused by an added peril to which the employee is exposed during the deviation, but the compensability of an injury occurring after the deviation has ended and the employee is again in the course of his employment is not ordinarily affected thereby. West Tennessee Nix-A-Mite Systems, Inc. v. Funderburk, 208 Tenn. 381, 346 S.W.2d 250, 1961 Tenn. LEXIS 296 (1961).

Evidence that truck driver was killed in traffic accident after resuming trip after deviation to obtain money for food and gasoline which employer had not provided was sufficient to establish that accident arose out of and in course of employment. West Tennessee Nix-A-Mite Systems, Inc. v. Funderburk, 208 Tenn. 381, 346 S.W.2d 250, 1961 Tenn. LEXIS 296 (1961).

Where a trip is undertaken by both the employer and the employee, the service of the employer must at least be a concurrent cause of the trip. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

Where the employee is engaged in travel which is not ordinarily within the scope of his employment, the relationship of the accident to the injury is an essential point of inquiry, with the question being whether the employer exposed the employee to the risk. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

Where a private purpose and a service of the employer coexist, the facts must permit the inference that the journey would have been made even though the private purpose had been abandoned, the test being whether it was the employment or something else that impelled the journey and exposed the traveler to its risks. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

Recently transferred employee of finance company who was killed in automobile accident while being taken around his territory by his employer's manager to familiarize him with the different places he would have to go in making collections was acting in course and scope of employment at time of death. American Plan Corp. v. Mecredy, 223 Tenn. 183, 443 S.W.2d 453, 1969 Tenn. LEXIS 401, 1969 Tenn. LEXIS 402 (1969).

Where employee was killed in motor vehicle accident in employer's truck while returning to his home by usual and best route after having serviced equipment of employer's customers, his widow was entitled to death benefits even though his activities were unaccounted for, for seven hours after having serviced last customer and alcohol content in his blood was sufficient to evidence intoxication since employee had resumed his duty and was on way home at time of accident and there was no evidence to show that intoxication was cause of accident. Gentry v. Lilly Co., 225 Tenn. 708, 476 S.W.2d 252, 1971 Tenn. LEXIS 332 (1971); Herron v. Fletcher, 503 S.W.2d 84, 1973 Tenn. LEXIS 428 (Tenn. 1973).

A traveling employee is generally considered to be in the course of his or her employment continuously during the duration of the entire trip, except when there is a distinct departure on a personal errand. Thus, the injury or death of a traveling employee that occurred while the employee was reasonably engaged in a reasonable recreational or social activity arose out of and in the course of employment. McCann v. Hatchett, 19 S.W.3d 218, 2000 Tenn. LEXIS 233 (Tenn. 2000).

104. —Injuries within Scope of Employment — Examples.

Two employees were dipping chairs; the tank being empty, the foreman ordered one to bring wax and fill it. The other, without direct order or being forbidden to assist the other employee, joined in filling the tank, which would enable both to resume their regular work sooner. The task undertaken was not hazardous and the assisting employee did not go out of the scope of his employment and compensation was proper. Milne v. Sanders, 143 Tenn. 602, 228 S.W. 702, 1920 Tenn. LEXIS 48 (1921).

Where an employee acted with specific intent to recover property wrongfully taken from his employer, though with motive or purpose to take the property to his home for his own use, a causal connection between his employment and his death which resulted from the act is sufficiently established to show the death to have arisen out of his employment in asserting the authority of employer. Chamber of Commerce v. Turner, 158 Tenn. 323, 13 S.W.2d 318, 1928 Tenn. LEXIS 156 (1929).

The risk of an employee, who was a collector of money, of being attacked on his route for robbery is a risk of employment where the attack is occasioned by the nature of the employment. Porter v. Travelers' Ins. Co., 163 Tenn. 526, 43 S.W.2d 1066, 1931 Tenn. LEXIS 144 (1931).

Provisions contained in a compensation policy making it applicable to injuries to employees while engaged in operation necessary, incident, appurtenant thereto, or connected therewith, and in the scope of general contractor engaged in building and repairing houses, include painting as an operation that comes within the coverage of the policy. Welch v. Reiling, 170 Tenn. 698, 99 S.W.2d 216, 1936 Tenn. LEXIS 51 (1936).

“Arising out of employment” refers to origin of injury, and injury from automobiles is a hazard of a policeman's duties, and where a policeman was injured while on duty by an automobile driven by a drunken driver, there was a causal connection between conditions under which work was required to be done and the injury, and the injury arose out of the employment. Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, 1937 Tenn. LEXIS 16 (1938).

An employee of American Red Cross who was drowned while doing rescue work during a flood met with an accidental death arising out of and in the course of his employment. American Red Cross v. Hinson, 173 Tenn. 667, 122 S.W.2d 433, 1938 Tenn. LEXIS 52 (1938).

Worker who was primarily employed as a stockroom clerk but who performed any duties which he was called upon to do and who was injured while helping repair a truck on the highway at the request of another employee suffered an injury “arising out of and in the course of employment.” Templeton v. Wilson, 174 Tenn. 65, 123 S.W.2d 824, 1938 Tenn. LEXIS 64 (1939).

A laborer employed by the city water and light department whose duties included attending large fires and cooperating with the fire department at such fires who was killed when the wall of a building fell on him at such a fire while he was engaged in playing a fire hose on the fire after two firemen were burned and had to leave was killed as the result of an accident arising out of and in the course of his employment. Travelers Ins. Co. v. Dudley, 180 Tenn. 191, 173 S.W.2d 142 (1943).

Deceased's injuries, sustained by an accident while he was on duty and carrying out the orders of the superior in keeping trespassers off of his employer's property, arose out of and in consequence of his employment. United States Fidelity & Guaranty Co. v. Barnes, 182 Tenn. 400, 187 S.W.2d 610, 1945 Tenn. LEXIS 233 (1945).

The construction of the driveway was incident to a bottling business since driveway was being made for the purpose of furthering that business, and it was not a separate business enterprise of the employer. Mashburn v. Ne-Hi Bottling Co., 191 Tenn. 135, 229 S.W.2d 520, 1950 Tenn. LEXIS 495 (1950), rehearing denied, 191 Tenn. 135, 232 S.W.2d 11, 1950 Tenn. LEXIS 557 (1950).

Where worker was killed by lightning while working on road on which there was much road machinery made out of metal, such death grew out of his employment. Oman Constr. Co. v. Hodge, 205 Tenn. 627, 329 S.W.2d 842, 1959 Tenn. LEXIS 402 (1959).

Where truck driver took his lunch break, between the unloading and reloading of his truck, at a time convenient for the employer, and when returning to the truck cab with a carry-out lunch, he was shot by two or three assailants, such injury occurred in the course of employment. Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d 597, 1979 Tenn. LEXIS 448 (Tenn. 1979).

Injury arose out of and in the course of employment, where the victim was assaulted by one who, upon learning that the victim was employed by the same company that employed the assailant's girlfriend, became enraged over the victim's presence at a late night sales meeting also attended by the girlfriend. Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

Evidence supported the conclusion that an employee had suffered mental injuries that arose out of and had occurred in the course of his employment as a truck driver when he came into contact with hazardous liquid labeled “radioactive” that he was transporting for disposal in Utah, and he was 100 percent permanently disabled. Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314, 2005 Tenn. LEXIS 1035 (Tenn. 2005).

Finding that the employee's workers'  compensation claim was compensable was appropriate pursuant to T.C.A. §§ 50-6-102 and 50-6-241(d)(1)(A) in that he was subjected to a higher risk of injury from the tornado because of his employment than the general public would have had. Accordingly, his injury arose out of his employment. Dixon v. Travelers Indem. Co., 336 S.W.3d 532, 2011 Tenn. LEXIS 188 (Tenn. Mar. 3, 2011).

105. —Aggravation of Condition, Weakness or Disease.

An underlying condition of asthma and bronchitis, caused by heavy smoking over decades, did not arise prior to employment and did not arise out of or in the course of employment, but rather it developed during employment. Thus, where the disability, such as that resulting from exposure to industrial pollutants, arose out of and in the course of employment, the general rule of aggravation applied, providing for liability for disability which was the result of the activation or aggravation of a preexisting weakness, condition or disease brought about by the occupation. Arnold v. Firestone Tire & Rubber Co., 686 S.W.2d 65, 1984 Tenn. LEXIS 910 (Tenn. 1984).

106. —Carpal Tunnel Syndrome.

Where twenty-eight year old certified registered nurse suffered from carpal tunnel syndrome which decreased her strength by approximately 75%, caused her to suffer daily pain in her hands, and required her to modify her lifestyle, she suffered a compensable injury to each arm. Story v. Legion Ins. Co., 3 S.W.3d 450, 1999 Tenn. LEXIS 434 (Tenn. 1999).

There is no iron-clad rule which calls for payment of benefits to an employee who is disabled from a heart attack while on the employer's premises and for denial of benefits to an employee who is disabled from a heart attack that occurs while the employee is on the way home from work. Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 2004 Tenn. LEXIS 173 (Tenn. 2004).

In order to recover when there is no physical exertion, but there is emotional stress, worry, shock, or tension, the heart attack must be immediately precipitated by a specific acute or sudden stressful event, rather than generalized employment conditions; thus, if a worker's heart attack is caused by a mental or emotional stimulus rather than physical exertion or strain, there must be a climatic event or series of incidents of an unusual or abnormal nature if a recovery is to be permitted. Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 2004 Tenn. LEXIS 173 (Tenn. 2004).

Tennessee's heart attack cases can be categorized into two groups: those that are precipitated by physical exertion or strain, and those resulting from mental stress, tension, or some type of emotional upheaval; if the heart attack results from physical exertion or strain, it is unnecessary that there be extraordinary exertion or unusual physical strain. Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 2004 Tenn. LEXIS 173 (Tenn. 2004).

Res judicata barred an employee's second suit because the employee's right carpal tunnel syndrome was not a new injury; at the time that a left carpal tunnel release surgery was performed in 2003, carpal tunnel syndrome was also found on the right and when the employee filed her first lawsuit, she sought compensation, in part, for the carpal tunnel injury to her right upper extremity and received a vocational disability of 9.87% to the right upper extremity. Barnett v. Milan Seating Sys., 215 S.W.3d 828, 2007 Tenn. LEXIS 38 (Tenn. 2007), superseded by statute as stated in, Meeks v. Hartford Ins. Co., — S.W.3d —, 2010 Tenn. LEXIS 716 (Tenn. Aug. 30, 2010), superseded by statute as stated in, Tomlinson v. Zurich Am. Ins., — S.W.3d —, 2010 Tenn. LEXIS 713 (Tenn. Aug. 30, 2010), superseded by statute as stated in, Jenkins v. Yellow Transp., Inc., — S.W.3d —, 2011 Tenn. LEXIS 344 (Tenn. Apr. 13, 2011), superseded by statute as stated in, House v. YRC, Inc., — S.W.3d —, 2012 Tenn. LEXIS 413 (Tenn. June 22, 2012), superseded by statute as stated in, Raines v. Vought Aircraft Indus., Inc., — S.W.3d —, 2012 Tenn. LEXIS 505 (Tenn. Aug. 17, 2012), superseded by statute as stated in, Freeman v. GM Co., — S.W.3d —, 2012 Tenn. LEXIS 750 (Tenn. Oct. 22, 2012).

Evidence preponderated against trial court's finding that carpal tunnel syndrome arose out of employee's employment where medical records failed to link employee's carpal tunnel syndrome to any work associated with employer; lay testimony, without support of medical evidence, was insufficient to establish casual relationship between employee's work activities with employer. Crew v. First Source Furniture Group, 259 S.W.3d 656, 2008 Tenn. LEXIS 418 (Tenn. June 24, 2008).

107. —Injuries Not within Scope of Employment — Examples.

There must be a causal relation between the employment and the injury, but carrying a shotgun borrowed for personal use was not so related to duty of petitioner as cashier of a bank carrying by automobile a deposit to the bank, where gun's accidental discharge caused the injury. Hendrix v. Franklin State Bank, 154 Tenn. 287, 290 S.W. 30, 1926 Tenn. LEXIS 125 (1926).

Death of night watchman of ice company from electric shock was not compensable where manner of contact with current was unknown but it appeared likely that he could have come into contact therewith only by climbing up transformer tower to height of ten feet where the duties of his employment did not require him to be, general instructions of company to employees being to avoid machinery and electrical apparatus in the plant. Home Ice Co. v. Franzini, 161 Tenn. 395, 32 S.W.2d 1032, 1930 Tenn. LEXIS 18 (1930).

Petitioner was regularly employed in a firm's repair shop, but was injured while at work in repairing the house of one of the partners, in which house the firm was not interested and for which work it received nothing. Such injury did not arise out of his employment by the firm. Elliott v. Elliott Bros., 165 Tenn. 23, 52 S.W.2d 144, 1931 Tenn. LEXIS 166 (1932).

In a suit to recover compensation for the accidental death of a driver salesman of a bottling company, who was shot after he entered a lunchroom in the course of his employment, by a holdup man who was robbing the place, complainant cannot recover in the absence of a showing of causal connection between the nature of the employee's employment and his injury which resulted in death, since walking in on a holdup cannot be a peculiar danger to which his employment exposed him. Scott v. Shinn, 171 Tenn. 478, 105 S.W.2d 103, 1937 Tenn. LEXIS 127 (1937).

Where a rural grocery salesman suffered a broken leg on the front steps of his home while returning from his route and where it had been suggested by his superiors that he have his orders written up at home by some member of his family due to the illegibility of his own writing and where it was his intent to have the day's orders so written up upon arriving home but where the evidence showed that the only interest of the company in having the orders written up at home was to insure the legibility of such orders, such injury did not arise out of and in the course of the employment within the meaning of the statute. Jellico Grocery Co. v. Hendrickson, 172 Tenn. 148, 110 S.W.2d 333, 1937 Tenn. LEXIS 64 (1937).

Sawyer's helper who was not required to do any sawing and who was injured while operating saw could not recover compensation as injury resulted from an act which had no causal connection with the employment. Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87, 1947 Tenn. LEXIS 316 (1947).

Where the employer is not a contractor or builder, injuries received by an employee on a construction project not an incident of or related to the real business of the employer, are not within the scope of the employee's employment, and so not compensable under the statute, but this rule is not to be extended to regular and general employees about a plant in connection with its usual business who happen to be at the time of the accident engaged, at the direction and under the supervision of the company's managers, on work of a repair or construction character. Mashburn v. Ne-Hi Bottling Co., 191 Tenn. 135, 229 S.W.2d 520, 1950 Tenn. LEXIS 495 (1950), rehearing denied, 191 Tenn. 135, 232 S.W.2d 11, 1950 Tenn. LEXIS 557 (1950).

Where decedent died of a heart attack in bed at his home more than 12 hours after he left work, although he complained of pains in his arm while at work and was given pills by the company doctor, there was no showing that the death arose out of his employment. Hagewood v. E.I. Du Pont De Nemours & Co., 206 Tenn. 239, 332 S.W.2d 660, 1960 Tenn. LEXIS 516 (1960).

Where death of decedent resulted from heart attack and on the morning of the attack he complained of indigestion before he went to work and after arriving at his place of work did not actually perform any of his duties but went to the first aid station to obtain something for a cold and indigestion and returned and lay down on his work bench and thereafter died it could not be said that his death was the result of an accident growing out of and in the course of his employment. Jakes v. Union Carbide Nuclear Co., 206 Tenn. 466, 334 S.W.2d 720, 1960 Tenn. LEXIS 384 (1960).

Where evidence supported findings of trial court that employee's fall resulted from failure of his leg to respond as a result of an idiopathic attack and that condition of steps on which employee fell did not contribute to the fall but that fall would have occurred whether or not he was on the steps, no hazard incident to the employment was shown as the immediate cause of the injury so that injury did not arise out of the employment. Greeson v. American Lava Corp., 216 Tenn. 461, 392 S.W.2d 931, 1965 Tenn. LEXIS 591 (1965).

Where construction workers were working in a city other than their regular location and were paid a specified additional sum per day for living expenses but such employees were free to commute between their home and the location of their work or to room at any facility available where the work was located and still receive the same additional daily compensation, death resulting from asphyxiation at their place of lodging did not arise out of and in the course of employment. Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765, 1966 Tenn. LEXIS 617, 1966 Tenn. LEXIS 618 (1966), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Where the record as a whole inescapably indicated that worker's death was caused by “the inexorable march” of heart disease, his death would not be considered as accidental nor to arise out of his employment merely because he suffered a preliminary seizure during working hours. Bowman v. Smith-Built Homes, Inc., 221 Tenn. 102, 424 S.W.2d 801, 1967 Tenn. LEXIS 358 (1967).

Where the accident and injury resulted from the act of appellee “goosing” another employee in the ribs which was contrary to an order of his foreman, the accident and injury did not arise out of the employment. Insurance Co. of America v. Hogsett, 486 S.W.2d 730, 1972 Tenn. LEXIS 330 (Tenn. 1972).

Findings of fact, taken together with all other circumstances, adequately supported the trial court's legal conclusions that appellant was not at the time of her injury using a route required or furnished by her employer, and that her injuries did not therefore arise out of and in the course of her employment. Harper v. Daun Ray Casuals, Inc., 596 S.W.2d 822, 1980 Tenn. LEXIS 432 (Tenn. 1980), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Although risk of assault or robbery was an inherent part of employment of a route salesman for a soft drink distributor, injury which occurred when the employee left the scene of an assault and attempted robbery, at which nothing belonging to the employer was taken, to search for the assailants' car was not within the scope of or arising out of the employment. Alder v. Mid-South Beverages, Inc., 783 S.W.2d 544, 1990 Tenn. LEXIS 35 (Tenn. 1990).

108. —Positional Risk Doctrine.

The court rejected the positional risk doctrine which provides that compensation is allowed whenever the injury occurred because the employment required the claimant to occupy what turned out to be a place of danger. Hall v. Mason Dixon Lines, Inc., 743 S.W.2d 148, 1987 Tenn. LEXIS 1035 (Tenn. 1987).

109. —Street Risk Doctrine.

The correct focus in assault cases involves a consideration of the risks and dangers inherent in the employment. An employee need only show that an assault has a rational, causal connection to the employment in order to establish the injury arose out of the employment. To establish this causal connection, workers whose employment exposes them to the hazards of the street, or who are assaulted under circumstances that fairly suggest they were singled out for attack because of their association with their employer, are entitled to establish this causal connection with the aid of the street risk doctrine. Braden v. Sears, Roebuck & Co., 833 S.W.2d 496, 1992 Tenn. LEXIS 537 (Tenn. 1992).

Worker who was attacked while engaged in removing his route sheet from the back of a van was engaged in an activity that furthered his employer's business, and his injuries were sustained in the course of his employment, even though the attack occurred at a time when the worker was not “on the clock” and at a place, his home, removed from the work environment. Braden v. Sears, Roebuck & Co., 833 S.W.2d 496, 1992 Tenn. LEXIS 537 (Tenn. 1992).

110. —Practice and Procedure.

111. — —Necessary Allegations.

In all compensation cases the petitioner must allege sufficient facts to warrant a reasonable inference, prima facie at least, that the injuries sustained arose out of and in the course of the employment. Farris v. Yellow Cab Co., 189 Tenn. 46, 222 S.W.2d 187, 1949 Tenn. LEXIS 397 (1949).

Complaint which alleged that employee died from bullet wounds sustained while sitting in his taxicab at 1:00 a.m. failed to state a cause of action since facts stated raised more than one reasonable inference as to cause of death. Farris v. Yellow Cab Co., 189 Tenn. 46, 222 S.W.2d 187, 1949 Tenn. LEXIS 397 (1949).

Pleadings in compensation proceedings must be sufficient to advise employer as to nature of claim asserted. Ledford v. Miller Bros. Co., 194 Tenn. 467, 253 S.W.2d 552, 1952 Tenn. LEXIS 405 (1952).

Petition for compensation based on fall when leg collapsed due to condition of phlebitis as result of prior injury while working for the same employer stated a cause of action, though present hazard incident to employment was not clearly set forth, as evidence to such hazard would be admissible on trial. Workman v. General Shoe Corp., 196 Tenn. 290, 265 S.W.2d 883, 1954 Tenn. LEXIS 377 (1954).

112. — —Burden of Proof.

In a suit for the death of an employee in an oil room fire, claimed by the employer to have been intentionally started by a fellow servant to burn the injured employee, the plaintiffs, by proving that the fire suddenly appeared when a lighted match was thrown into the room, shifted the burden to the employer to prove that the fire was intentionally started. Milne v. Sanders, 143 Tenn. 602, 228 S.W. 702, 1920 Tenn. LEXIS 48 (1921).

Burden of showing death from accident arising out of and in course of employment is not sustained by proof that coal miner died from rupture of branch of one of coronary or anterior arteries of heart which might have taken place under any circumstances. Battle Creek Coal & Coke Co. v. Martin, 155 Tenn. 34, 290 S.W. 18, 1926 Tenn. LEXIS 16 (1927).

The burden of proof is on the petitioner to show that his injury arose out of and in the course of his employment. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928); Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717, 1928 Tenn. LEXIS 177 (1929); Home Ice Co. v. Franzini, 161 Tenn. 395, 32 S.W.2d 1032, 1930 Tenn. LEXIS 18 (1930); McBrayer v. Dixie Mercerizing Co., 178 Tenn. 135, 156 S.W.2d 408, 1941 Tenn. LEXIS 41 (1941); Patton v. L. O. Brayton & Co., 184 Tenn. 592, 201 S.W.2d 981, 1947 Tenn. LEXIS 281 (1947); Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87, 1947 Tenn. LEXIS 316 (1947); Kellon v. American Bakeries Co., 210 Tenn. 184, 357 S.W.2d 56, 1962 Tenn. LEXIS 422 (1962).

If upon undisputed proof it is conjectural whether death resulted from a cause operating within the employment or a cause operating without the employment, there can be no award to the employee's dependents. Hagewood v. E.I. Du Pont De Nemours & Co., 206 Tenn. 239, 332 S.W.2d 660, 1960 Tenn. LEXIS 516 (1960).

In order to recover the claimant is obligated to prove: (1) that he is an employee; (2) that he sustained an accidental injury; and (3) that such accident and injury grew out of and in the course of his regular employment. Federated Mut. Implement & Hardware Co. v. Shoemaker, 211 Tenn. 523, 366 S.W.2d 129, 1963 Tenn. LEXIS 377 (1963).

In order for an employee to recover he must prove that he is an employee, that he sustained an accidental injury, that such accident and injury grew out of and in course of his employment and that he gave notice to his employer either in writing or in person. Smith v. Tennessee Furniture Industries, Inc., 212 Tenn. 291, 369 S.W.2d 721, 1963 Tenn. LEXIS 423 (1963).

Burden was on compensation claimant to prove a causal relation between industrial injury of her husband and his death nearly two years later. Neas v. Snapp, 221 Tenn. 325, 426 S.W.2d 498, 1968 Tenn. LEXIS 468 (1968).

Because the physicians who opined that the employee's neck and shoulder injury were caused by the accident that occurred on July 14, 2008, had an incomplete picture of the condition of the employee's neck and shoulder prior to that accident, and because the orthopedic surgeon, who was the only physician with knowledge of the pre-accident state of the employee's left shoulder, found that the post-accident MRI was entirely consistent with the normal progression of the condition he had previously treated the employee for from 2006 through 2008, the employee failed to sustain his burden of proof that a work-related activity was the cause of his injuries, and he was not entitled to receive permanent partial disability benefits. Johnson v. Express Am. Trucking, Inc., — S.W.3d —, 2015 Tenn. LEXIS 176 (Tenn. Mar. 3, 2015), aff'd, — S.W.3d —, 2015 Tenn. LEXIS 175 (Tenn. Mar. 3, 2015).

113. — —Rules of Evidence.

The rules as to hearsay evidence and res gestae apply. Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717, 1928 Tenn. LEXIS 177 (1929); Patton v. L. O. Brayton & Co., 184 Tenn. 592, 201 S.W.2d 981, 1947 Tenn. LEXIS 281 (1947).

114. — —Summary Judgment.

A workers' compensation appeal from a summary judgment is not controlled by the material evidence rule; it is governed by Tenn. R. Civ. P. 56. Blocker v. Regional Medical Center, 722 S.W.2d 660, 1987 Tenn. LEXIS 815 (Tenn. 1987).

115. — —Doubts Resolved in Favor of Employee.

Any reasonable doubt as to whether the act or injury of the employee arose out of the employment should be resolved in favor of the employee or dependent. Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977, 1951 Tenn. LEXIS 374 (1951).

Generally, an injury arises out of and in the course of the employment if it has a rational causal connection to the work and occurs while the employee is engaged in the duties of his employment; and, any reasonable doubt as to whether an injury “arose out of the employment” is to be resolved in favor of the employee. Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977, 1951 Tenn. LEXIS 374 (1951); Great American Indem. Co. v. Friddell, 198 Tenn. 360, 280 S.W.2d 908, 1955 Tenn. LEXIS 381 (1955); Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

116. — —Inferences of Fact.

Where an employee is found dead at his post of labor, without direct evidence as to the manner of his death, an inference may arise of an accident springing out of and in the course of his employment. Tennessee Chemical Co. v. Smith, 145 Tenn. 532, 238 S.W. 97, 1921 Tenn. LEXIS 93 (1922); Tennessee Eastman Corp. v. Russell, 150 Tenn. 331, 265 S.W. 540, 1924 Tenn. LEXIS 8 (1924); Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928); Home Ice Co. v. Franzini, 161 Tenn. 395, 32 S.W.2d 1032, 1930 Tenn. LEXIS 18 (1930).

Theory of employees being injured while engaged in theft must be supported by more than inference. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928).

Where an employee was killed in a vehicle which he was employed to drive and there was no suggestion that he was going on any personal mission, there may arise an inference that his death arose out of and in the course of his employment. Kennedy v. Columbian Casualty Co., 163 Tenn. 312, 43 S.W.2d 201, 1931 Tenn. LEXIS 118 (1931).

The mere presence at the place of injury because of employment will not result in the injury's being considered as arising out of the employment. Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954, 1949 Tenn. LEXIS 384 (1949).

Where petitioner alleged that her husband, a cab driver, was killed by some unknown person while sitting in his cab at a regular cab stand, a demurrer to the petition was properly sustained upon the ground that the petition stated no fact or circumstance from which it could be reasonably inferred that the killing was an accident which arose out of and in the course of the cab driver's employment. Farris v. Yellow Cab Co., 189 Tenn. 46, 222 S.W.2d 187, 1949 Tenn. LEXIS 397 (1949).

There is no presumption, prima facie case or reasonable inference that workers' compensation claimant's decedent, allegedly healthy was killed in an accident arising out of his employment on the fact alone that he was found dead at his post of duty, where no physical exertion to any extent is shown. Wilson v. St. Louis Terminal Distributing Co., 198 Tenn. 171, 278 S.W.2d 681, 1955 Tenn. LEXIS 359 (1955).

A presumption may arise that an accidental injury received by an employee arose out of and in the course of employment, as where the employee is found injured or dead under circumstances indicating that injury or death occurred within the time or space limitations of the employment, but such presumption is rebuttable and disappears on the introduction of evidence to the contrary. Crane Rental Service v. Rutledge, 219 Tenn. 433, 410 S.W.2d 418, 1966 Tenn. LEXIS 542 (1966).

The rule that death at the post of labor is presumed to have resulted from the employment may not be relied upon to support a theory of accidental injury which in light of the evidence is conjectural. Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968).

Mere fact that employee who suffered heart attack on street while attending union convention was subject to be called to duty 24 hours a day would not raise a presumption that his heart attack arose out of and in course of his employment. Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968).

117. — —Conjecture.

Conjectures as to cause of death are insufficient to support finding that death of coal miner was due to accident arising out of and in course of his employment within this act. Battle Creek Coal & Coke Co. v. Martin, 155 Tenn. 34, 290 S.W. 18, 1926 Tenn. LEXIS 16 (1927).

If upon undisputed proof it is conjectural whether the death resulted from a cause operating within his employment, there can be no award. Home Ice Co. v. Franzini, 161 Tenn. 395, 32 S.W.2d 1032, 1930 Tenn. LEXIS 18 (1930); Graybeal v. Smith, 189 Tenn. 412, 225 S.W.2d 556, 1949 Tenn. LEXIS 447 (1949).

A finding that death was occasioned by an accident arising out of and in the course of employment cannot be based on mere conjecture or speculation. McBrayer v. Dixie Mercerizing Co., 178 Tenn. 135, 156 S.W.2d 408, 1941 Tenn. LEXIS 41 (1941).

If the cause of the accident and injury is a matter of speculation it is not compensable. McCann Steel Co. v. Carney, 192 Tenn. 94, 237 S.W.2d 942, 1951 Tenn. LEXIS 386 (1951).

Compensation will not be awarded where cause of death is a matter of speculation. Neas v. Snapp, 221 Tenn. 325, 426 S.W.2d 498, 1968 Tenn. LEXIS 468 (1968).

If, upon undisputed proof it is conjectural as to whether death resulted from a cause operating within decedent's employment or a cause operating without his employment, there can be no award. Neas v. Snapp, 221 Tenn. 325, 426 S.W.2d 498, 1968 Tenn. LEXIS 468 (1968).

A workers' compensation award cannot be based upon conjecture. It must be based on material evidence. La-Z-Boy Chair Co. v. Reed, 778 F. Supp. 954, 1990 U.S. Dist. LEXIS 19446 (E.D. Tenn. 1990), aff'd, 936 F.2d 573, 1991 U.S. App. LEXIS 19988 (6th Cir. Tenn. 1991).

118. Scope of Review by Supreme Court.

The 1985 amendment to T.C.A. § 50-6-225 replaced the “material evidence” standard of review with a new standard, that of de novo review upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Alley v. Consolidation Coal Co., 699 S.W.2d 147, 1985 Tenn. LEXIS 562 (Tenn. 1985).

119. Disability — What Constitutes.

In determining work disability as distinguished from clinical disability, the trial judge may consider the employee's job skills, education and training, duration of disability and job opportunities for the disabled. Trane Co. v. Morrison, 566 S.W.2d 849, 1978 Tenn. LEXIS 557 (Tenn. 1978).

120. Tort Law.

Although concepts of tort law, such as the “rescue” doctrine applicable to negligence cases may be helpful, they are not controlling in the workers' compensation field. Hall v. Mason Dixon Lines, Inc., 743 S.W.2d 148, 1987 Tenn. LEXIS 1035 (Tenn. 1987).

121. Notice Period.

Trial court had not erred in finding that a sole proprietor had coverage under his workers'  compensation policy and was entitled to benefits because he had substantially complied with the non-mandatory thirty-day waiting period in T.C.A. § 50-6-102 where the insured fully completed the I-4 form and his insurance agent sent it to the department, which stamped it as received; the insured had also filled out a policy application, paid a deposit premium, had his agent submit the application to the insurer, and received temporary evidence of coverage in the form of a binder letter. Scheele v. Hartford Underwriters Ins. Co., 218 S.W.3d 636, 2007 Tenn. LEXIS 136 (Tenn. 2007).

Supreme court of Tennessee has established no bright-line rule to measure substantial compliance with a workers'  compensation notice provision of T.C.A. § 50-6-102; the question as to whether there has been a sufficient compliance depends on the facts of the individual cases. Scheele v. Hartford Underwriters Ins. Co., 218 S.W.3d 636, 2007 Tenn. LEXIS 136 (Tenn. 2007).

Supreme court of Tennessee found the thirty-day notice requirement of T.C.A. § 50-6-102 directory, not mandatory; a sole proprietor's substantial compliance with the statute's thirty-day notice requirement is legally sufficient. Scheele v. Hartford Underwriters Ins. Co., 218 S.W.3d 636, 2007 Tenn. LEXIS 136 (Tenn. 2007).

Collateral References.

Application of the “mutual benefit” doctrine to workers'  compensation cases. 11 A.L.R.6th 351.

Compensability under occupational disease statutes of emotional distress or like injury suffered by claimant as result of nonsudden stimuli. 113 A.L.R.5th 115.

Employee's injuries sustained in use of employer's restroom as covered by workers' compensation. 80 A.L.R.5th 417.

Employee's operation of employer's vehicle outside regular working hours as within scope of employment. 51 A.L.R.2d 120.

Injury while crossing or walking along railroad or street railway tracks, going to or from work, as arising out of and in the course of employment. 50 A.L.R.2d 363.

Presumption or inference that accidental death of employee engaged in occupation of manufacturing or processing arose out of and in course of employment. 47 A.L.R.5th 801.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Compensability under particular circumstances. 108 A.L.R.5th 1.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Requisites of, and factors affecting, compensability. 106 A.L.R.5th 111.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Right to compensation under particular statutory provisions. 97 A.L.R.5th 1.

Right to workers'  compensation for injury suffered by worker en route to or from worker's home where home is claimed as “work situs.”. 15 A.L.R.6th 633.

Right to workers'  compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli — Compensability under particular circumstances. 39 A.L.R.6th 445.

Right to workers'  compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli — Requisites of, and factors affecting, compensability. 13 A.L.R.6th 209.

Right to workers' compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli — Right to compensation under particular statutory provisions. 122 A.L.R.5th 653.

Right to workers' compensation for physical injury or illness suffered by claimant as result of sudden mental stimuli — Compensability under particular circumstances. 107 A.L.R.5th 441.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden stimuli involving nonpersonnel action — Compensability under particular circumstances. 84 A.L.R.5th 249.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden stimuli involving nonpersonnel action-right to compensation under particular statutory provisions and requisites of, and factors affecting, compensability. 83 A.L.R.5th 103.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden emotional stimuli involving personnel action. 82 A.L.R.5th 149.

Right to workers' compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli — Compensability of particular physical injuries or illnesses. 112 A.L.R.5th 509.

Right to workers' compensation for physical injury or illness suffered by claimant as result of sudden mental stimuli — Right to compensation under particular statutory provisions and requisites of, and factors affecting, compensability. 109 A.L.R.5th 161.

Sufficiency of proof that cancer resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 384.

Sufficiency of proof that cardiovascular or respiratory condition resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 401.

Sufficiency of proof that condition of skin or sensory organ resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 446.

Sufficiency of proof that digestive condition resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 360.

Sufficiency of proof that hernia resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 434.

Sufficiency of proof that mental or neurological condition complained of resulted from accident or incident in suit rather than preexisting condition. 2 A.L.R.3d 487.

Sufficiency of proof that musculoskeletal condition resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 290.

Sufficiency of proof that urogenital condition resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 464.

Workers' compensation as precluding employee's suit against employer for sexual harassment in the workplace. 51 A.L.R.5th 163.

Workers' compensation: coverage of employee's injury or death from exposure to the elements — modern cases. 20 A.L.R.5th 346.

Workers' compensation: law enforcement officer's recovery for injury sustained during exercise or physical recreation activities. 44 A.L.R.5th 569.

Workers' compensation: Lyme disease. 22 A.L.R.5th 246.

Workmen's compensation: injury sustained while attending employer-sponsored social affair as arising out of and in the course of employment. 47 A.L.R.3d 566.

50-6-103. Scope of chapter.

  1. Every employer and employee subject to this chapter, shall, respectively, pay and accept compensation for personal injury or death by accident arising primarily out of and in the course and scope of employment without regard to fault as a cause of the injury or death; provided, that any person who has an exemption pursuant to § 50-6-104 or part 9 of this chapter shall not be bound if the employee has given, prior to any accident resulting in injury or death, notice to be exempted from this chapter as provided in this part.
  2. [Deleted by 2013 amendment, effective July 1, 2014.]

Acts 1919, ch. 123, § 3; Shan. Supp., § 3608a139; Code 1932, § 6853; Acts 1973, ch. 379, § 1; 1975, ch. 198, § 1; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-903; Acts 2011, ch. 422, § 2; 2013, ch. 289, §§ 10, 11.

Compiler's Notes. Acts 2011, ch. 422, § 13 provided that if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to the act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, in (a), inserted “primarily” and “and scope”; and deleted (b) which read: “The election by any employee who is a corporate officer of the employer to be exempted from this chapter, shall not reduce the number of employees of the employer for the purposes of determining the requirements of coverage of the employer under this chapter.”

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

NOTES TO DECISIONS

1. Injuries Covered.

Granting summary judgment as to whether an employer was liable for the cost of a knee replacement was error where the medical evidence created a genuine issue of material fact as to whether the employee's need for the replacement was caused by earlier compensable injuries. Federated Rural Elec. Ins. Exch. v. Hill, — S.W.3d —, 2010 Tenn. LEXIS 1228 (Tenn. Oct. 7, 2010), aff'd, Federated Rural Elec. Ins. Exch. v. Hill, — S.W.3d —, 2010 Tenn. LEXIS 1208 (Tenn. Dec. 21, 2010).

Evidence supported a trial court's decision that the decedent's illness and death arose out of his employment as a mechanic where the treating physicians, which included specialists in infectious disease, internal medicine, pulmonary medicine and critical care, opined that his death, more likely than not, was due to workplace exposure, the decedent reported breathing in grout and epoxy type substances at work prior to his illness, and lay witnesses confirmed dusty work conditions and a rapid decline in the decedent's health. Holbert v. JBM Inc., — S.W.3d —, 2017 Tenn. LEXIS 709 (Tenn. Nov. 1, 2017).

In a case in which the employee orally informed her supervisor that she was quitting and fell on her way out of the store, the employee was entitled to workers'  compensation benefits as the employee remained covered by the workers'  compensation statutes during the time that she was leaving the work site because the injury occurred within a reasonable time after termination of her employment, and because walking to the door of the convenience store to exit the workplace was a normal incident of the employment relation. Duck v. Cox Oil Co., — S.W.3d —, 2017 Tenn. LEXIS 734 (Tenn. Nov. 21, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 735 (Tenn. Nov. 21, 2017).

Employee whose employment is terminated remains covered by the Workers'  Compensation statutes for a reasonable period of time for the employee to effectuate the termination of employment, such as by gathering belongings and exiting the workplace. That holding is a natural extension of the Tennessee cases holding that injuries incurred before an employee's work shift begins or after it ends may be compensable. Duck v. Cox Oil Co., — S.W.3d —, 2017 Tenn. LEXIS 734 (Tenn. Nov. 21, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 735 (Tenn. Nov. 21, 2017).

In a workers'  compensation case in which the employee, who was employed by the city as a trash collector, allegedly sustained a low back injury on May 22, 2012, when lifting a wet sofa into a refuse truck, the trial court did not err in holding that the employee sustained a compensable injury and awarded 6% permanent partial disability benefits because the employee suffered a compensable injury as the testimonies of the employee, the employee's mother, and a board-certified orthopedic surgeon, and his supporting documentation, demonstrated that the May 22, 2012, workplace injury advanced the severity of the employee's preexisting condition; and the city failed to rebut the surgeon's impairment rating by clear and convincing evidence. Jordan v. City of Murfreesboro, — S.W.3d —, 2017 Tenn. LEXIS 853 (Tenn. Dec. 28, 2017).

1.5. Injuries Not Covered.

Workers'  Compensation Appeals Board properly reversed the trial court's determination that the claimant's knee injury was compensable as his injury arose from his voluntary participation in a mud run charity event because his participation in the mud run was not required as the individual, who was the primary source of pressure on the claimant to participate, had no supervisory authority over the claimant, and the claimant was not threatened with any adverse employment action if he declined to participate; and the mud run was not work-related as the claimant was not compensated for his time, he was not required to make sales or to network, and his participation in the mud run was a departure from his normal duty of selling cars. Pope v. Nebco of Cleveland, Inc., — S.W.3d —, 2018 Tenn. LEXIS 146 (Tenn. Jan. 16, 2018).

2. Failure to Rebut Presumption.

Trial court correctly found that an employee failed to rebut by clear and convincing evidence the presumption that the drugs revealed in his drug screen were the proximate cause of his injury because the evidence he submitted consisted entirely of his own testimony; the expert medical witness testified that the results of the drug screen were inconsistent with the employee's version of events because they showed he had taken non-prescribed medications shortly before the accident. Austin v. Roach Sawmill & Lumber Co., — S.W.3d —, 2016 Tenn. LEXIS 748 (Tenn. Oct. 26, 2016), aff'd, — S.W.3d —, 2016 Tenn. LEXIS 747 (Tenn. Oct. 26, 2016).

50-6-103. Scope of chapter. [Applicable to injuries occurring prior to July 1, 2014.]

  1. Every employer and employee subject to this chapter, shall, respectively, pay and accept compensation for personal injury or death by accident arising out of and in the course of employment without regard to fault as a cause of the injury or death; provided, that any person who has an exemption pursuant to § 50-6-104 or part 9 of this chapter shall not be bound if the employee has given, prior to any accident resulting in injury or death, notice to be exempted from this chapter as provided in this part.
  2. The election by any employee who is a corporate officer of the employer to be exempted from this chapter, shall not reduce the number of employees of the employer for the purposes of determining the requirements of coverage of the employer under this chapter.

Acts 1919, ch. 123, § 3; Shan. Supp., § 3608a139; Code 1932, § 6853; Acts 1973, ch. 379, § 1; 1975, ch. 198, § 1; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-903; Acts 2011, ch. 422, § 2.

Compiler's Notes. Acts 2011, ch. 422, § 13 provided that if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to the act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

Cross-References. Inapplicability to claims filed against state, § 9-8-307.

Waiver of compensation for aggravation of occupational disease, § 50-6-307.

Law Reviews.

Workers'  Compensation Gone Awry (Patricia S. Wall), 44 Tenn. B.J. 22 (2008).

Workers' Compensation Outline (Paul Campbell III), 18 No. 3 Tenn. B.J. 11 (1982).

NOTES TO DECISIONS

1. Employers Covered.

Parent corporation was not an employer and thus could be sued in a wrongful death action arising from an explosion in parent company's factory where decedent was an employee of a wholly owned subsidiary which paid decedent on its own paychecks, maintained separate payroll deduction returns, held its own charter, produced seat belts essentially dissimilar from the air bags manufactured by the parent, and hired its own employees, paying them on its own checks, and where decedent was never notified that she was actually working for the parent company. Latham v. Technar, Inc., 390 F. Supp. 1031, 1974 U.S. Dist. LEXIS 6079 (E.D. Tenn. 1974).

2. Injuries Covered.

Where the employee is injured on the employer's premises during a break period provided by the employer, such an injury is generally compensable. Holder v. Wilson Sporting Goods Co., 723 S.W.2d 104, 1987 Tenn. LEXIS 814 (Tenn. 1987).

Injury sustained while employee was en route to friend's home to see if the friend would fill in the next day on a work crew was compensable as arising out of the course of employment where the employer implicitly permitted employee to bring prospective workers to the job. Loy v. North Bros. Co., 787 S.W.2d 916, 1990 Tenn. LEXIS 159 (Tenn. 1990).

Where an employee is injured while en route to or from work, the injury is in the course of employment if it occurs on the employer's premises or on a necessary route between the work facility and the areas provided for employee parking. Once the employee has exited the parking area and begins traveling on personal time, away from the employer's premises, he is no longer in the course of employment. McCurry v. Container Corp. of Am., 982 S.W.2d 841, 1998 Tenn. LEXIS 606 (Tenn. 1998), rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 59 (Tenn. Feb. 1, 1999).

Young v. Taylor-White, LLC, 181 S.W.3d 324, 2005 Tenn. LEXIS 853 (Tenn. 2005) should not be read expansively because, while the voluntary nature of an activity in some circumstances may be a very important factor in determining whether an injury occurred in the course of employment, neither this factor or any other single factor can be the “touchstone” for all cases; thus, workers'  compensation benefits were improperly denied to a widow of an employee who died of an acute myocardial infarction suffered while participating in an employer-sanctioned basketball game during his work break. Gooden v. Coors Tech. Ceramic Co., 236 S.W.3d 151, 2007 Tenn. LEXIS 779 (Tenn. Sept. 6, 2007).

Employees of a credit union who were allegedly sickened by exposure to carbon monoxide emanating from a hot water heater in the basement of their building were limited to the remedies afforded by the workers'  compensation law because their injuries had a rational, causal connection with their employment and the conditions under which their work was required to be performed. Coleman v. St. Thomas Hosp., 334 S.W.3d 199, 2010 Tenn. App. LEXIS 500 (Tenn. Ct. App. Aug. 4, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1061 (Tenn. Nov. 15, 2010).

Worker's compensation award arising out of an employee's fall at work was affirmed because the evidence did not preponderate against the trial court's conclusion that the employee sustained a compensable injury arising out of her employment for purposes of T.C.A. § 50-6-103(a); the employee stated that her foot “stuck” and that her inability to lift her foot interrupted her gait, causing her to fall, and, although the employee conceded that it was “speculation” as to what, if any, substance was on the floor, the trial court accredited her testimony that the fall had occurred as she described and found that the hazard was incident to her employment. Although the employer's witnesses testified that they found no substance on the floor or any irregularity in the floor, the trial court concluded that the nursing staff could have tracked away whatever substance was present on the floor. Vandall v. Aurora Healthcare, LLC, 401 S.W.3d 28, 2013 Tenn. LEXIS 426 (Tenn. Apr. 24, 2013).

3. Injuries Not Covered.

One of the fundamental purposes of workers'  compensation law is to compensate employees for work-related injuries irrespective of fault; thus, recognizing hedonic damages as a basis for recovering benefits would run counter to the exclusive-remedy principle which reinforces the policy balance of workers'  compensation law. Lang v. Nissan North America, Inc., 170 S.W.3d 564, 2005 Tenn. LEXIS 659 (Tenn. Aug. 16, 2005).

Trial court did not err in granting summary judgment to an attorney in his former client's legal malpractice suit claiming he was negligent in not re-filing a workers'  compensation lawsuit within one year after a voluntary non-suit, as the client's evidence in the underlying workers'  compensation action regarding the death of her husband at work was insufficient to establish the damages element of the legal malpractice action. Shearon v. Seaman, 198 S.W.3d 209, 2005 Tenn. App. LEXIS 792 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 479 (Tenn. 2006).

Award of 35 percent permanent partial disability award to the employee's body as a whole in a workers'  compensation action was improper under T.C.A. § 50-6-103(a) because the injuries did not qualify as work-related; an injury occurring as an employee walked on a level, obstacle-free, concrete surface was not compensable unless a hazard contributed to the injury. Wilhelm v. Krogers, 235 S.W.3d 122, 2007 Tenn. LEXIS 743 (Tenn. Aug. 17, 2007).

Employee's injuries, although they occurred at home, were suffered during the course of her employment, but still did not arise out of her employment pursuant to T.C.A. § 50-6-103(a); the employee was engaged in a permissible incidental activity at her sanctioned work site when she was attacked, but the assailant was not part of a working employment relationship. Wait v. Travelers Indem. Co., 240 S.W.3d 220, 2007 Tenn. LEXIS 1033 (Tenn. Nov. 16, 2007).

Nurse's claim for workers' compensation benefits, based upon the nurse's claim that the nurse had contracted tuberculosis when the nurse's hand came into contact with the blood of a patient who was subsequently diagnosed with tuberculosis, was dismissed because the nurse failed to present competent medical evidence that the nurse had contracted tuberculosis as a result of the nurse's employment. Wheetley v. State, — S.W.3d —, 2014 Tenn. LEXIS 467 (Tenn. June 25, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 468 (Tenn. June 25, 2014).

Collateral References.

Construction of phrase “establishment” or “factory, establishment, or other premises” within unemployment compensation statute rendering employee ineligible during labor dispute or strike at such location. 60 A.L.R.3d 11, 63 A.L.R.3d 88.

Employee's injuries sustained in use of employer's restroom as covered by workers' compensation. 80 A.L.R.5th 417.

Injury to employee as arising out of or in course of employment for purposes of state workers'  compensation statute — Effect of employer-provided living quarters, room and board, or the like. 42 A.L.R.6th 61.

Presumptions, constitutionality of statute making one fact prima facie evidence of another. 51 A.L.R. 1179, 86 A.L.R. 179, 162 A.L.R. 495.

Recovery for discharge from employment in retaliation for filing workers' compensation claim. 32 A.L.R.4th 1221.

Right to compensation under state workers'  compensation statute for injuries sustained during or as result of horseplay, joking, fooling, or the like. 41 A.L.R.6th 207.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli — Right to compensation under particular statutory provisions. 97 A.L.R.5th 1.

Right to workers' compensation for injury suffered by employee while driving employer's vehicle. 28 A.L.R.6th 1.

Tort liability of workers' compensation insurer for wrongful delay or refusal to make payments due. 8 A.L.R.4th 902.

50-6-104. Election of corporate officer to be exempt from chapter.

  1. Any officer of a corporation may elect to be exempt from the operation of this chapter.
  2. An officer who elects exemption from this chapter shall give written notice to the corporation of the officer's intent not to be covered by this chapter on a form prescribed by the bureau. Notice of the officer's election not to be bound by this chapter must include an affidavit of the officer that the action of the officer in rejecting this chapter was not advised, counseled, nor encouraged by the employer or by anyone acting on the employer's behalf. The election by any employee, who is a corporate officer of the employer, to be exempt from this chapter, does not reduce the number of employees of the employer for the purposes of determining the requirements of coverage of the employer under this chapter.
  3. Every employee who is a corporate officer and who elects not to operate under this chapter, in any action to recover damages for personal injury or death by accident brought against an employer who has elected to operate under this chapter, shall proceed as at common law, and the employer may make use of all common law defenses.
  4. Notification given pursuant to this section does not become effective until it is filed with the proper entity. Any officer who elects exemption and who, after electing exemption then revokes that exemption, shall give written notice of the revocation to the employer and its insurer at least thirty (30) days before the occurrence of any injury or death.
  5. This section does not apply to any officer of a corporation, member of a limited liability company, partner, or sole proprietor who is engaged in the construction industry, as defined by § 50-6-901; instead, part 9 of this chapter applies to such officer, member, partner, or sole proprietor.

Acts 1975, ch. 198, § 2; impl. am. Acts 1980, ch. 534, § 1; T.C.A., § 50-904; Acts 2010, ch. 1149, § 4; 2013, ch. 289, § 12; 2014, ch. 903, § 2; 2015, ch. 341, § 15; 2017, ch. 344, § 3.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added former (d). All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, added “or member of a limited liability company” to (a); deleted (d) which read: “This section shall not apply to any officer of a corporation, member of a limited liability company, partner, or sole proprietor who is engaged in the construction industry, as defined by § 50-6-901; instead, part 9 of this chapter shall apply to such officer, member, partner or sole proprietor.”; and added present (e) and (f).

The 2014 amendment deleted “or member of a limited liability company”  following “of a corporation” in the first sentence of (a), following “corporate officer of the employer” in (e), and following “corporate officer” in the first sentence of (f).

The 2015 amendment substituted “bureau” for “division” in (a) and (c).

The 2017 amendment rewrote the section which read: “(a) Any officer of a corporation may elect to be exempt from the operation of this chapter. Any officer who elects exemption and who, after electing exemption then revokes that exemption, shall give notice to that effect in accordance with a form prescribed by the bureau.“(b) Notice given pursuant to subsection (a) shall be given thirty (30) days prior to any accident resulting in injury or death; provided, that if any injury or death occurs less than thirty (30) days after the date of employment, notice of the exemption or acceptance given at the time of employment shall be sufficient notice of exemption.“(c) The notice of election not to accept this chapter, shall be as follows: the employee shall give written or printed notice to the employer of the employee's election not to be bound by the Workers' Compensation Law and file with the bureau, a duplicate, with proof of service on the employer attached to the notice, together with an affidavit of the employee that the action of the employee in rejecting the Workers' Compensation Law was not advised, counseled or encouraged by the employer or by anyone acting for the employer.“(d) [Deleted by 2013 amendment, effective July 1, 2014.]“(e) The election by any employee, who is a corporate officer of the employer, to be exempted from this chapter, shall not reduce the number of employees of the employer for the purposes of determining the requirements of coverage of the employer under this chapter.“(f) Every employee who is a corporate officer and who elects not to operate under this chapter, in any action to recover damages for personal injury or death by accident brought against an employer who has elected to operate under this chapter, shall proceed as at common law, and the employer may make use of all common law defenses. This section shall not apply to any officer of a corporation, member of a limited liability company, partner, or sole proprietor who is engaged in the construction industry, as defined by § 50-6-901; instead, part 9 of this chapter shall apply to such officer, member, partner or sole proprietor.”

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2014, ch. 903, § 14. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2017, ch. 344, § 12. May 9, 2017.

50-6-104. Election of corporate officer to be exempt from chapter. [Applicable to injuries occurring prior to July 1, 2014.]

  1. Any officer of a corporation may elect to be exempt from the operation of this chapter. Any officer who elects exemption and who, after electing exemption then revokes that exemption, shall give notice to that effect in accordance with a form prescribed by the division.
  2. Notice given pursuant to subsection (a) shall be given thirty (30) days prior to any accident resulting in injury or death; provided, that if any injury or death occurs less than thirty (30) days after the date of employment, notice of the exemption or acceptance given at the time of employment shall be sufficient notice of exemption.
  3. The notice of election not to accept this chapter, shall be as follows: the employee shall give written or printed notice to the employer of the employee's election not to be bound by the Workers' Compensation Law and file with the division, a duplicate, with proof of service on the employer attached to the notice, together with an affidavit of the employee that the action of the employee in rejecting the Workers' Compensation Law was not advised, counseled or encouraged by the employer or by anyone acting for the employer.
  4. This section shall not apply to any officer of a corporation, member of a limited liability company, partner, or sole proprietor who is engaged in the construction industry, as defined by § 50-6-901; instead, part 9 of this chapter shall apply to such officer, member, partner or sole proprietor.

Acts 1975, ch. 198, § 2; impl. am. Acts 1980, ch. 534, § 1; T.C.A., § 50-904; Acts 2010, ch. 1149, § 4.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added (d). All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

      The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

      Cross-References. Defenses not available to employer failing to secure payment of compensation, § 50-6-111.

      Inapplicability to claims filed against state, § 9-8-307.

      Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 7.

      Law Reviews.

      Workers' Compensation Outline (Paul Campbell III), 18 No. 3 Tenn. B.J. 11 (1982).

      Collateral References.

      Jurisdiction to consider, and grounds of, attack upon employee's acceptance or rejection of Workmen's Compensation Act. 137 A.L.R. 747.

      What amounts to acceptance or election to come within act by employer as to whom act is not mandatory. 136 A.L.R. 899.

50-6-105. Relief associations or funds for benefit of employees, spouses and dependents unaffected.

Nothing in this chapter shall be construed as amending or repealing any statute or municipal ordinance relating to associations or funds for the relief, pensioning, retirement or other benefit of any employees of the municipal employer, or of the surviving spouses, children or dependents of the employees of the municipal employer, or as in any manner interfering with any statute or municipal ordinance as now or hereafter established.

Acts 1919, ch. 123, § 5; Shan. Supp., § 3608a141; Code 1932, § 6855; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-905.

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 5.

NOTES TO DECISIONS

1. Benefit Corporation — Operations for Profit.

Injury to a carpenter, who was working on a reservoir of an eleemosynary corporation, which was not needed for the corporation's own water supply but was needed to insure uniform supply to a town furnished water therefrom to the profit of the corporation, was compensable under this statute. Lincoln Memorial University v. Sutton, 163 Tenn. 298, 43 S.W.2d 195, 1931 Tenn. LEXIS 115 (1931).

50-6-106. Employments not covered.

This chapter shall not apply to:

    1. Any common carrier doing an interstate business while engaged in interstate commerce, which common carrier and the interstate business are already regulated as to employer's liability or workers' compensation by act of congress, it being the purpose of this law to regulate all such business that the congress has not regulated in the exercise of its jurisdiction to regulate interstate commerce; provided, that this chapter shall apply to those employees of the common carriers with respect to whom a rule of liability is not provided by act of congress; provided, further, that no common carrier by motor vehicle operating pursuant to a certificate of public convenience and necessity shall be deemed the employer of a leased-operator or owner-operator of a motor vehicle or vehicles under a contract to such a common carrier;
    2. Notwithstanding subdivision (1)(A), a leased operator or a leased owner/operator of a motor vehicle under contract to a common carrier may elect to be covered under any policy of workers' compensation insurance insuring the common carrier upon written agreement of the common carrier, by filing written notice of the contract, on a form prescribed by the administrator, with the bureau; provided, that the election shall in no way terminate or affect the independent contractor status of the leased operator or leased owner/operator for any other purpose than to permit workers' compensation coverage. The leased operator or leased owner/operator electing coverage as provided in this section shall establish the validity of and satisfy the terms and conditions of all contractual agreements between the parties prior to the payment of any claim for workers' compensation. The election of coverage may be terminated by the leased operator, leased owner/operator, or common carrier by providing written notice of the termination to the bureau and to all other parties consenting to the prior election. The termination shall be effective thirty (30) days from the date of the notice to all other parties consenting to the prior election and to the bureau;
    3. The venue of any dispute arising out of or connected with the validity of the contractual relationship or terms of the written agreement upon which the workers' compensation benefits are extended between the common carrier and a leased operator or leased owner/operator shall be the chancery court of the county where the contract was entered or the county of the principal place of business of the common carrier;
    4. Whenever the leased operator, the leased owner/operator or the carrier files a suit to resolve a contract dispute pursuant to subdivision (C), the statute of limitations for filing a petition for benefit determination with the bureau shall be tolled for ninety (90) days after final judgment has been entered in the suit including all appeals. In cases where a leased operator or leased owner/operator has filed a petition for benefit determination before the leased operator, leased owner/operator or the carrier has filed a suit pursuant to subdivision (C) to resolve a contract dispute, the petition for benefit determination shall be held in abeyance by the bureau until final judgment, including all appeals, has been entered in the suit filed pursuant to subdivision (C);
  1. Any person whose employment at the time of injury is casual, that is, one who is not employed in the usual course of trade, business, profession or occupation of the employer;
  2. Domestic servants and employers of domestic servants;
  3. Farm or agricultural laborers and employers of those laborers. Employers of farm or agricultural laborers may accept this chapter by purchasing a workers' compensation insurance policy, and may at any time withdraw that acceptance by canceling or not renewing the policy and providing notice to the employees;
  4. Cases where fewer than five (5) persons are regularly employed, except as provided in § 50-6-902. In cases with fewer than five (5) regularly employed persons, the employer may accept this chapter by purchasing a workers' compensation insurance policy, and may at any time withdraw that acceptance by canceling or not renewing the policy and providing notice to the employees;
  5. The state, counties of the state and municipal corporations; provided, that the state, any county or municipal corporation may accept this chapter by filing written notice of the acceptance with the bureau under the administrator, at least thirty (30) days before the happening of any accident or death, and may at any time withdraw the acceptance by giving like notice of the withdrawal. The state, any county or municipal corporation may accept this chapter as to any department or division of the state, county or municipal corporation by filing written notice of acceptance with the bureau under the administrator, at least thirty (30) days before the happening of any accident or death and may, at any time, withdraw acceptance for the division or department by giving like notice of the withdrawal, and the acceptance by the state, county or municipal corporation for any department or division of the state, county or municipal corporation shall have effect only of making the department or division designated subject to the terms of this chapter; or
  6. Any person performing voluntary service as a ski patrolperson who receives no compensation for the services other than meals, lodging or the use of ski tow or ski lift facilities or any combination of meals, lodging and the use of ski tow or ski lift facilities.

Acts 1919, ch. 123, § 6; 1923, ch. 84, §§ 2, 5; Shan. Supp., § 3608a142; Code 1932, § 6856; Acts 1941, ch. 20, § 1; 1941, ch. 90, § 2; 1943, ch. 120, § 1; C. Supp. 1950, § 6856; Acts 1976, ch. 495, § 1; 1976, ch. 602, § 1; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-906; Acts 1988, ch. 525, § 1; 1997, ch. 330, § 2; 1999, ch. 520, § 41; 2010, ch. 1149, § 15; 2013, ch. 282, § 1; 2014, ch. 633, §§ 1, 2; 2015, ch. 341, § 15; 2017, ch. 344, § 4; 2018, ch. 629, § 1.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which amended (5). All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2014, ch. 633,  § 3 provided that the act, which amended subdivision (1)(B) and added subdivisions (1)(C) and (D), shall apply to injuries occurring on or after July 1, 2014.

Amendments. The 2013 amendment, effective July 1 2014, substituted “administrator” for “commissioner” in (1)(B).

The 2014 amendment, in (1), added the second sentence in (B) and added (C) and (D).

The 2015 amendment substituted “bureau” for “division” throughout, when in reference to the Bureau of Workers' Compensation.

The 2017 amendment, in the first sentence, substituted “Cases” for “In cases” at the beginning and deleted the proviso at the end which read: “provided, that in those cases.”, and, in the second sentence, added “In cases with fewer than five (5) regularly employed persons,” to the beginning, substituted “purchasing a workers' compensation insurance policy,” for “ filing written notice of the acceptance with the bureau at least thirty (30) days before the happening of any accident or death” in the middle and substituted “canceling or not renewing the policy and providing notice to the employees” for “giving like notice of withdrawal” at the end.

The 2018 amendment added the last sentence in (4).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2014, ch. 633, § 3. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2017, ch. 344, § 12. May 9, 2017.

Acts 2018, ch. 629, § 2. April 2, 2018.

50-6-106. Employments not covered. [Applicable to injuries occurring prior to July 1, 2014.]

This chapter shall not apply to:

    1. Any common carrier doing an interstate business while engaged in interstate commerce, which common carrier and the interstate business are already regulated as to employer's liability or workers' compensation by act of congress, it being the purpose of this law to regulate all such business that the congress has not regulated in the exercise of its jurisdiction to regulate interstate commerce; provided, that this chapter shall apply to those employees of the common carriers with respect to whom a rule of liability is not provided by act of congress; provided, further, that no common carrier by motor vehicle operating pursuant to a certificate of public convenience and necessity shall be deemed the employer of a leased-operator or owner-operator of a motor vehicle or vehicles under a contract to such a common carrier;
    2. Notwithstanding subdivision (1)(A), a leased operator or a leased owner/operator of a motor vehicle under contract to a common carrier may elect to be covered under any policy of workers' compensation insurance insuring the common carrier upon written agreement of the common carrier, by filing written notice of the contract, on a form prescribed by the commissioner, with the division; provided, that the election shall in no way terminate or affect the independent contractor status of the leased operator or leased owner/operator for any other purpose than to permit workers' compensation coverage. The election of coverage may be terminated by the leased operator, leased owner/operator, or common carrier by providing written notice of the termination to the division and to all other parties consenting to the prior election. The termination shall be effective thirty (30) days from the date of the notice to all other parties consenting to the prior election and to the division;
  1. Any person whose employment at the time of injury is casual, that is, one who is not employed in the usual course of trade, business, profession or occupation of the employer;
  2. Domestic servants and employers of domestic servants;
  3. Farm or agricultural laborers and employers of those laborers;
  4. In cases where fewer than five (5) persons are regularly employed, except as provided in § 50-6-902; provided, that in those cases the employer may accept this chapter by filing written notice of the acceptance with the division at least thirty (30) days before the happening of any accident or death, and may at any time withdraw the acceptance by giving like notice of withdrawal;
  5. The state, counties of the state and municipal corporations; provided, that the state, any county or municipal corporation may accept this chapter by filing written notice of the acceptance with the division under the administrator, at least thirty (30) days before the happening of any accident or death, and may at any time withdraw the acceptance by giving like notice of the withdrawal. The state, any county or municipal corporation may accept this chapter as to any department or division of the state, county or municipal corporation by filing written notice of acceptance with the division under the administrator, at least thirty (30) days before the happening of any accident or death and may, at any time, withdraw acceptance for the division or department by giving like notice of the withdrawal, and the acceptance by the state, county or municipal corporation for any department or division of the state, county or municipal corporation shall have effect only of making the department or division designated subject to the terms of this chapter; or
  6. Any person performing voluntary service as a ski patrolperson who receives no compensation for the services other than meals, lodging or the use of ski tow or ski lift facilities or any combination of meals, lodging and the use of ski tow or ski lift facilities.

Acts 1919, ch. 123, § 6; 1923, ch. 84, §§ 2, 5; Shan. Supp., § 3608a142; Code 1932, § 6856; Acts 1941, ch. 20, § 1; 1941, ch. 90, § 2; 1943, ch. 120, § 1; C. Supp. 1950, § 6856; Acts 1976, ch. 495, § 1; 1976, ch. 602, § 1; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-906; Acts 1988, ch. 525, § 1; 1997, ch. 330, § 2; 1999, ch. 520, § 41; 2010, ch. 1149, § 15.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which amended (5). All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

      The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

      Cross-References. Inapplicability to claims filed against state, § 9-8-307.

      Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 529.

      Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, §§ 9—12, 14.

      Law Reviews.

      Plaintiffs Must Bear Cost of Immunity (John A. Day), 36 No. 12 Tenn. B.J. 29 (2000).

      Workers' Compensation Outline (Paul Campbell III), 18 No. 3 Tenn. B.J. 11 (1982).

      Attorney General Opinions. Coverage of some, but not all, employees, OAG 94-020 (2/25/94).

      1. Validity. 2. Scope. 3. Carriers. 4. —Election Requirement. 5. Telegraph Companies. 6. Maritime Statutes — Application. 7. Casual Employee — Meaning and Application. 8. —Issue of “Casualness” — When Raised. 9. —Question of Casual Employment in Specific Cases. 10. —Evidence. 11. —Payment of Compensation to Casual Employee — Effect. 12. Agricultural Laborers. 13. Domestic Servants. 14. Employers of Five Persons. 15. Employers of Fewer Than Five Persons. 16. State, Counties and Municipalities. 17. —Eleemosynary Institutions. 18. School Board. 19. —Agreement to Accept Provisions. 20. Lease Agreements. 21. Defenses — Nature of Question Raised. 22. Raising Question on Appeal. 23. Leased Vehicles.

      Exclusion from operation of the statute of those specified in this section is not an arbitrary, unreasonable and discriminatory classification. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

NOTES TO DECISIONS

1. Validity.

Acts 1943, ch. 120, amending this section by striking out subsection (a) and substituting new subsection (a), did not violate the provisions of Tenn. Const., art. II, § 17, requiring all acts that repeal, revive or amend to recite in the caption the title or the substance of the law repealed, revived or amended, as the caption of the amendatory act specified that it was amending this section of the official code. Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678, 1947 Tenn. LEXIS 407 (1947).

Acts 1943, ch. 120, removing exemption of common carriers engaged in interstate commerce from provisions of Workers' Compensation Law, was not invalid on the ground that it extended enforcement of statute beyond state borders, since basis of Workers' Compensation Law is based on a contractual relationship regardless as to where the accident or injury occurred. Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678, 1947 Tenn. LEXIS 407 (1947).

2. Scope.

The Workers' Compensation Law, as is evident from the several express exceptions set out in this section, does not undertake to cover the entire subject of master and servant. Olsen v. Sharpe, 191 Tenn. 503, 235 S.W.2d 11, 1950 Tenn. LEXIS 464 (1950).

3. Carriers.

Although there are cases preceding the 1976 amendment to subdivision (1) holding T.C.A. § 50-6-113, the principal contractor liability provision, applicable to the contract trucking situation, the 1976 amendment, removing common carriers from consideration as the statutory employer of an owner-operator or leased-operator, makes these cases and the principal contractor liability theory inapplicable to such situations. Long v. Stateline Systems, Inc., 738 S.W.2d 622, 1985 Tenn. LEXIS 542 (Tenn. 1985).

Railroads engaged in interstate commerce were excepted. Vaught v. East T. & W. N. C. R. Co., 148 Tenn. 379, 255 S.W. 595, 1923 Tenn. LEXIS 25, 29 A.L.R. 1202 (1923); Prince v. Nashville, C. & S. L. Ry., 152 Tenn. 189, 274 S.W. 13, 1925 Tenn. LEXIS 61 (1925).

Employee injured while loading an intrastate shipment into an interstate car was not compensable under this statute. Vaught v. East T. & W. N. C. R. Co., 148 Tenn. 379, 255 S.W. 595, 1923 Tenn. LEXIS 25, 29 A.L.R. 1202 (1923).

A section hand engaged in work preparatory to unloading gravel for ballasting an interstate track was engaged in such interstate commerce. Prince v. Nashville, C. & S. L. Ry., 152 Tenn. 189, 274 S.W. 13, 1925 Tenn. LEXIS 61 (1925).

To take the case out of the statute the work in which the employer and employee were jointly engaged at the time of the injury had to be an act of interstate commerce or so closely related thereto as to be a practical part of such commerce. Prince v. Nashville, C. & S. L. Ry., 152 Tenn. 189, 274 S.W. 13, 1925 Tenn. LEXIS 61 (1925); Williams v. Carolina, C. & O. R. Co., 154 Tenn. 224, 289 S.W. 520, 1926 Tenn. LEXIS 117 (1926).

4. —Election Requirement.

The filing requirement of T.C.A. § 50-6-106(1)(B) is merely directory and an election may be accomplished by substantial compliance with the workers' compensation statute; thus, where a carrier advised a leased-operator that he was covered by workers' compensation when he was hired and stated in its answers to interrogatories that the operator was covered, the carrier complied in substantial manner with the election requirement. Perkins v. Enterprise Truck Lines, 896 S.W.2d 123, 1995 Tenn. LEXIS 98 (Tenn. 1995).

5. Telegraph Companies.

Telegraph companies were not excepted from operation of the statute. Western Union Tel. Co. v. Byrd, 155 Tenn. 455, 294 S.W. 1099, 1926 Tenn. LEXIS 66 (1927).

6. Maritime Statutes — Application.

Where an employee of the American Red Cross who was engaged in rescue work during a flood drowned when a boat in which he was riding was overturned while crossing a navigable stream but occurred at a point ordinarily dry land and not covered by water except during flood times, the accident occurred on “overflowed lands” and not on a navigable stream and the widow was entitled to an award under the state Workers' Compensation Law and not under federal statutes relating to compensation as to such accidents occurring on navigable waters. American Red Cross v. Hinson, 173 Tenn. 667, 122 S.W.2d 433, 1938 Tenn. LEXIS 52 (1938).

Where maritime employee was killed while on his way into city on an errand for employer his exclusive remedy was under the Jones Act (46 U.S.C. App. § 688). Rudolph v. Industrial Marine Service, Inc., 187 Tenn. 119, 213 S.W.2d 30, 1948 Tenn. LEXIS 417 (1948).

7. Casual Employee — Meaning and Application.

The word “casual” signifies something which is without regularity and is occasional and incidental. Murphy v. Gaylord, 160 Tenn. 660, 28 S.W.2d 348, 1930 Tenn. LEXIS 151 (1930).

Unless an employee is engaged with reference to the usual course of the master's trade, business or occupation, he is a casual employee not protected by this statute, but if he is engaged with reference to his master's usual business, he may be protected, though his employment is casual as distinguished from regular. Gibbons v. Roller Estates, Inc., 163 Tenn. 373, 43 S.W.2d 198, 1931 Tenn. LEXIS 125 (1931).

Before an injured employee is entitled to compensation, he must show that his employment was not casual, and that he was injured in the course of his employment, and that the injury arose out of the employment. Parks v. E. M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285, 1934 Tenn. LEXIS 70 (1935).

Test of casual employment is whether individual concerned is employed in usual course of trade, business, profession or occupation of the employer and period of work is immaterial. Parks v. E. M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285, 1934 Tenn. LEXIS 70 (1935); D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897, 1947 Tenn. LEXIS 365 (1947).

An employee may come within the protection of the statutes, if engaged with reference to the usual course of the master's trade or business, although his employment is casual as distinguished from regular employment. Parks v. E. M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285, 1934 Tenn. LEXIS 70 (1935).

In determining whether or not the employee is entitled to compensation, the test as applied under subsection (b) (now subdivision (2)) is whether or not such employee was injured in the usual course of trade, business, profession or occupation of the employer and not with reference to such facts as related to the employee. Dancy v. Abraham Bros. Packing Co., 171 Tenn. 311, 102 S.W.2d 526, 1936 Tenn. LEXIS 93 (1937).

The general rule that construction work is not in the usual course of an employer's business where the employer is not a contractor or builder will not be extended to regular and general employees about a plant in connection with its usual business who happen to be at the time of the accident engaged on work of a repair or construction nature at the direction and under the supervision of the company's managers. United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184, 1937 Tenn. LEXIS 112 (Tenn. Mar. 7, 1938).

The amount of compensation paid and the length of time one is employed is not determinative of whether or not employment is regular or casual. Brady v. Reed, 186 Tenn. 556, 212 S.W.2d 378, 1948 Tenn. LEXIS 581 (1948).

In determining whether employment is casual, it is not the regularity of the employment of an injured workman that is important but the regularity of the employer's exercise of a given employment. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956); Federated Mut. Implement & Hardware Co. v. Shoemaker, 211 Tenn. 523, 366 S.W.2d 129, 1963 Tenn. LEXIS 377 (1963).

In determining whether the worker is entitled to recover under subsection (b) (now subdivision (2)), the test is not whether he was engaged in the usual course of his trade or occupation but whether he was injured in the usual course of the trade, business, profession or occupation of the employer. Federated Mut. Implement & Hardware Co. v. Shoemaker, 211 Tenn. 523, 366 S.W.2d 129, 1963 Tenn. LEXIS 377 (1963).

Where an employer regularly employs employees in a given class of work this may be evidence that such work is in the usual course of the employer's trade, business or occupation. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Maintenance, repair, painting, cleaning and the like are generally in the course of business, since the business could not be carried on without them and they are an expectable, routine and inherent part of carrying on an enterprise. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965); Winchester v. Seay, 219 Tenn. 321, 409 S.W.2d 378, 1966 Tenn. LEXIS 531 (1966).

So long as compensation claimant was a member of a class doing some work necessary in carrying on defendant's business, he fell within the classification of those regularly employed. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

So-called “relative nature of the work” test is of vital significance on the issue of whether an individual is an employee or casual employee but is of less significance where the question is whether the injured person is an employee or independent contractor. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Where plaintiff was employee of supplier of temporary manpower and was supplied to defendant who requested some temporary day labor, defendant was a coemployer with employment agency at the time of plaintiff's injury and plaintiff was limited to a cause of action under title 50, chapter 6 and precluded from bringing an action in negligence against defendant. Bennett v. Mid-South Terminals Corp., 660 S.W.2d 799, 1983 Tenn. App. LEXIS 627 (Tenn. Ct. App. 1983).

T.C.A. § 50-6-106 excludes those persons employed for the purpose of engaging in activity that is not in the usual course of business of the employer. It cannot be used to exclude employees employed for the purpose of performing work in the usual business of the employer who happened to be, at the time of the accident, engaged in work outside the usual course of the employer's business, at the direction and under the supervision of the employer. Yearout v. Trusty, 684 S.W.2d 612, 1984 Tenn. LEXIS 878 (Tenn. 1984), superseded by statute as stated in, Dulin v. Dulin, — S.W.3d —, 2003 Tenn. App. LEXIS 628 (Tenn. Ct. App. Sept. 3, 2003).

The word “usual” as used in T.C.A. § 50-6-106(2) means the normal operations of the business. Creek v. MacLennan, 752 S.W.2d 511, 1988 Tenn. LEXIS 202 (Tenn. 1988).

8. —Issue of “Casualness” — When Raised.

The question of “casualness” of the employment as a basis for defeating recovery of compensation by an injured employee is not in issue if it has been determined that the employment was not in the usual course of the employer's business. Parks v. E. M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285, 1934 Tenn. LEXIS 70 (1935).

9. —Question of Casual Employment in Specific Cases.

Employer, a garage owner, not engaged in the building business, was erecting a building aside from the usual course of his business. Petitioner was employed from time to time by the hour and lost a finger while oiling a concrete mixer. His injury was not compensable. Murphy v. Gaylord, 160 Tenn. 660, 28 S.W.2d 348, 1930 Tenn. LEXIS 151 (1930).

Death of boy while assisting in repainting office building was not compensable by owners of the building, the deceased not being employed in the usual course of trade, business or occupation of the owners. Gibbons v. Roller Estates, Inc., 163 Tenn. 373, 43 S.W.2d 198, 1931 Tenn. LEXIS 125 (1931).

Where structural iron worker was employed for temporary period to assist in carrying heating equipment to building site for installation by steam fitters because workers employed for job could not do work because of lack of membership in union, the iron worker was not a casual employee as work performed was work generally performed by structural iron workers. Parks v. E. M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285, 1934 Tenn. LEXIS 70 (1935).

Where carpenter was injured while engaged in construction of a hydrant house to protect the control valves for an automatic sprinkler system designed to protect meat packing plant from fire but where such packing company did not regularly maintain a force of carpenters for such work and the custom was for the chief engineer to call in a carpenter whenever the occasion demanded odd carpenter jobs and where the injured employee was so employed such employee was not engaged in the regular course of the employer's business so as to recover under the statute. Dancy v. Abraham Bros. Packing Co., 171 Tenn. 311, 102 S.W.2d 526, 1936 Tenn. LEXIS 93 (1937).

Where employee of manufacturer of cord fabrics was injured while unloading lumber to be used in construction of addition to the plant from a freight car, evidence that employee was hired to unload box cars and work around the yard as a common laborer, that he engaged in such work since the start of his employment and that he was working under the direction of the employer's supervisors was material evidence showing that the employment at the time of the injury was not casual. United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184, 1937 Tenn. LEXIS 112 (Tenn. Mar. 7, 1938).

Deceased employed as a guard for a period of three months by defendant contractor engaged on war control project for U.S. Navy was not a “casual employee” of defendant but was employed in usual course of trade, business, profession or occupation of defendant. McDonald v. Dunn Const. Co., 182 Tenn. 213, 185 S.W.2d 517, 1945 Tenn. LEXIS 212 (1945).

Claimant was not a casual employee where he was engaged in work on a new house being constructed by defendant engaged in business of manufacturing and selling lumber where defendant had built as many as 100 new houses and had 20 more houses in process of construction. D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897, 1947 Tenn. LEXIS 365 (1947).

Window washer who washed windows for building corporation was employed in usual course of business of corporation and not a casual employee where corporation under its contract with tenants furnished window washing free. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

Plumber employed by automobile garage to install a water pipe in garage was a casual employee and not entitled to compensation for fall from ladder. Harper v. Grady Counce & Son, 194 Tenn. 279, 250 S.W.2d 371, 1952 Tenn. LEXIS 379 (1952).

Where welding company contracted to move equipment of machinist's school by means of cranes owned by welding company engaged in supervising operation of crane was not a casual employee of machinist's school, but an employee of the welding company. Still v. Penn. Threshermen & Farmers' Mut. Cas. Ins. Co., 195 Tenn. 323, 259 S.W.2d 538, 1953 Tenn. LEXIS 344 (1953).

Uncontradicted testimony that employer maintained an average of more than five men working around pleasure resort and that particular workman was employed at such resort while not working at crops on land owned by such employer and operated by such workman on a share crop basis was sufficient to support trial court's finding that operation of such resort was in the regular course of employer's business and that workman's employment was not casual. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

Fact that employer was engaged in business of commercial trucking was not per se evidence that it was not regularly engaged in some other business or that employee killed by lightning while shutting off irrigation apparatus on pleasure resort operated by such employer was a casual employee. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

A person who worked for a university as a painter during the summer months and was employed from July 5th to time of injury in early October was not a “casual” employee. Smith v. Lincoln Memorial University, 202 Tenn. 238, 304 S.W.2d 70, 1957 Tenn. LEXIS 386 (1957).

Where a farmer who carried workers' compensation on his regular employees testified that such employees had, at times, painted the buildings as part of their regular work, a painter, whom he hired to paint certain buildings on a particular day, and retained right to terminate the employment at any time, was not an independent contractor nor a casual employee and was covered by the compensation law, the upkeep and maintenance of the buildings being an essential part of the farming. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Where service station and appliance store operator decided to build a retaining wall across the rear of the property and to do so hired two persons experienced in construction work to take charge of the work of building such wall, additional helpers also being hired by the service station operator for such work, the completion of such construction to take about 75 days, the persons hired to take charge of such work were employees of the service station and appliance store operator and, although casual employees and excluded from coverage so far as a service station and appliance store were concerned, the business of constructing such wall was considered a separate business engaged in by the service station operator and as employees in such business were not casual employees and were covered by the Workers' Compensation Act. Black v. Corder, 217 Tenn. 613, 399 S.W.2d 762, 1966 Tenn. LEXIS 616 (1966).

Where worker was injured while cutting metal strip to fit under air conditioner over door of restaurant such employee was engaged in such maintenance or repair work as to be entitled to compensation and was not excluded therefrom as a “casual employee” even though he was a regular employee of a nearby hotel where he was working under the direction of owner of the restaurant and not of his regular employer. Winchester v. Seay, 219 Tenn. 321, 409 S.W.2d 378, 1966 Tenn. LEXIS 531 (1966).

Men employed on an hourly basis solely for the purpose of painting a grocery store are casual employees under this section as such employment is not part of the normal operations which regularly constituted the business. Travelers Ins. Co. v. Dozier, 219 Tenn. 525, 410 S.W.2d 904, 1966 Tenn. LEXIS 543 (1966).

Farmer who brought load of tobacco to warehouse and was told by warehouse owner that if he unloaded the tobacco he would be paid for it and who was injured while performing the same function of unloading tobacco as warehouse's other employees was a regular employee even though only engaged in unloading tobacco from one truck. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

Painter hired by company to paint its building who was paid weekly by the hour, had income and social security taxes withheld from his pay, was required to clock in and out, and was furnished paint, brushes and ladders was a regular employee of the company, not a casual employee. Garan, Inc. v. Surratt, 525 S.W.2d 137, 1975 Tenn. LEXIS 653 (Tenn. 1975).

Absent facts which would clothe the entire transaction with all indicia of employer-employee relationship, a worker hired solely to paint business premises which were not regularly repainted was a casual employee. Freeman's Furniture Co. v. Large, 546 S.W.2d 582, 1977 Tenn. LEXIS 518 (Tenn. 1977).

Where person who was engaged in the business of carpet sales, installation and service purchased new building for its business and hired two carpenters to prepare the new building, such carpenters constituted casual employees not covered by the Workers' Compensation Act. Feathers v. Duncan, 582 S.W.2d 385, 1979 Tenn. LEXIS 445 (Tenn. 1979).

10. —Evidence.

If the employer regularly employs workers in a given class of work this may be evidence that such work is in the usual course of the employer's trade, business or occupation. Dancy v. Abraham Bros. Packing Co., 171 Tenn. 311, 102 S.W.2d 526, 1936 Tenn. LEXIS 93 (1937); Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956); Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Although not determinative, the occupation of the employee may be looked to and has evidential value as bearing on the nature of the work of the employer with reference to the work in which the employee was engaged. United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184, 1937 Tenn. LEXIS 112 (Tenn. Mar. 7, 1938).

Fact that employer was engaged in business of commercial trucking was not per se evidence that it was not regularly engaged in some other business. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

If the employer regularly employs employees in a given class of work, this may be evidence that such work is in the regular course of such employer's trade, business or occupation. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

Where employer regularly employs employees in a given class of work, this may be evidence that such work is in the usual course of such employer's trade. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

11. —Payment of Compensation to Casual Employee — Effect.

Where petitioner was a casual employee only, the fact that the insurance carrier paid compensation to petitioner for many weeks did not estop the employers to deny liability under the Workers' Compensation Law. Harper v. Grady Counce & Son, 194 Tenn. 279, 250 S.W.2d 371, 1952 Tenn. LEXIS 379 (1952).

12. Agricultural Laborers.

Whether a laborer is an agricultural or farm laborer is determined from the whole character of the work he is required to perform, and not from the general occupation or business of the employer. Ginn v. Forest Nursery Co., 165 Tenn. 9, 52 S.W.2d 141, 1931 Tenn. LEXIS 164 (1932).

One employed to till the soil, to tend the plants and shrubs of a commercial nursery, to prepare the products for market, and to deliver them to a shipping point, is an agricultural laborer. Ginn v. Forest Nursery Co., 165 Tenn. 9, 52 S.W.2d 141, 1931 Tenn. LEXIS 164 (1932).

One may be engaged at same time in both farming and mining or sawmilling, but to bring him within the statute he must be engaged in the occupation other than farming as a business. Robinson v. Stockley, 166 Tenn. 380, 61 S.W.2d 677, 1932 Tenn. LEXIS 145 (1933).

Employer whose principal occupation was farming was a farmer and exempt from operation of this statute though engaged in cutting and logging of timber, where the purpose of the cutting was to get the valuable merchantable timber off the land in order to put the land in cultivation. Robinson v. Stockley, 166 Tenn. 380, 61 S.W.2d 677, 1932 Tenn. LEXIS 145 (1933).

Employee on 500 acre farm operated by nursery who did any and all work required on the farm including hauling of nursery stock to employer's shipping plant located in town was a farm laborer, and fatal injury to such employee while steering disabled truck across a bridge was not covered. Dills v. Tennessee Nursery Co., 188 Tenn. 241, 218 S.W.2d 992, 1949 Tenn. LEXIS 336 (1949).

Where partnership engaged in operation of grain mill and 1,000 acre farm took a workers' compensation policy which provided coverage for farm employees other than in servants and insurance company accepted premiums based in part on wages paid to farm laborers, a farm laborer was entitled to recover on policy in suit against insurer though farm laborers were excluded from coverage under provisions of subdivision (3). Eidson v. Hardware Mut. Casualty Co., 191 Tenn. 430, 234 S.W.2d 836, 1950 Tenn. LEXIS 455 (1950).

Whether a laborer is or is not a farm laborer is determined from the character of the work he is required to perform; neither the pending task nor the place where it is being performed is the test. The whole character of the employment must be looked at, to determine whether he is a farm laborer. McWhirter v. Kimbro, 742 S.W.2d 255, 1987 Tenn. LEXIS 1030 (Tenn. 1987), rehearing denied, 742 S.W.2d 255, 1987 Tenn. LEXIS 1050 (Tenn. 1987).

13. Domestic Servants.

Employee of lumber company who was injured while mowing lawn of owner of such lumber company was not excluded from compensation as a domestic servant where employee for period of time had spent one day per week working about his employer's house but was only paid through lumber company and was injured during regular working hours. Sharp v. Jenkins, 211 Tenn. 691, 367 S.W.2d 464, 1963 Tenn. LEXIS 392 (1963).

14. Employers of Five Persons.

This section was impliedly amended by Acts 1923, ch. 84, § 2 so as to make the act cover employers using services of not less than five persons, though not specifically referred to in express terms. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

Workers' compensation attaches to an employer on the first day that five or more persons may be classified as regular employees and may not be withdrawn solely by the device of reducing the work force to four or fewer regular employees. Ganus v. Asher, 561 S.W.2d 756, 1978 Tenn. LEXIS 580 (Tenn. 1978).

Individual was counted as the fifth employee for purposes of T.C.A. § 50-6-106(4) where she admitted taking cash out of the “money bag” before plaintiff was injured to reimburse herself for money spent running errands for the store. Garner v. Reed, 856 S.W.2d 698, 1993 Tenn. LEXIS 196 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 249 (Tenn. June 28, 1993).

15. Employers of Fewer Than Five Persons.

This section does not require employer having less than five employees to wait 30 days before being bound, and such employer can accept the provisions of the law immediately. Commercial Ins. Co. v. Young, 209 Tenn. 608, 354 S.W.2d 779, 1961 Tenn. LEXIS 425 (1961).

The provisions of subdivision (4), that where less than five persons are regularly employed the employer may accept the provisions of the law by filing written notice with the bureau of workers' compensation at least 30 days before the happening of an accident or death, is permissive only and not exclusive, and does not prohibit the employer from accepting the provisions of the law by other methods or means including by agreement of the parties. Commercial Ins. Co. v. Young, 209 Tenn. 608, 354 S.W.2d 779, 1961 Tenn. LEXIS 425 (1961).

Where employer of less than five regular employees neglected to give notice to department of workers' compensation of its election to be bound by the law but it was understood by employer and employee that they were to be bound, employer's insurance carrier would not be permitted to assert the technical defense that employer had not given such notice. Commercial Ins. Co. v. Young, 209 Tenn. 608, 354 S.W.2d 779, 1961 Tenn. LEXIS 425 (1961).

The Workers' Compensation Law is silent with respect to an express procedure for withdrawal from coverage by an employer who was subject to the act by virtue of having five or more employees but thereafter reduced the work force below five. Karstens v. Wheeler Millwork Cabinet & Supply Co., 614 S.W.2d 37, 1981 Tenn. LEXIS 417 (Tenn. 1981).

An employer employing five or more persons who has filed proof of insurance pursuant to T.C.A. §§ 50-6-40150-6-406, who thereafter reduces his work force to less than five persons, shall be deemed to have elected to remain subject to the act until notice of withdrawal is filed with the division of workers' compensation in accord with T.C.A. § 50-6-106(4). Karstens v. Wheeler Millwork Cabinet & Supply Co., 614 S.W.2d 37, 1981 Tenn. LEXIS 417 (Tenn. 1981); Whitehead v. Watkins, 741 S.W.2d 327, 1987 Tenn. LEXIS 1029 (Tenn. 1987).

A mere reduction in the employer's work force does not withdraw an employer from coverage under the Workers' Compensation Act, T.C.A. § 50-6-101 et seq.Whitehead v. Watkins, 741 S.W.2d 327, 1987 Tenn. LEXIS 1029 (Tenn. 1987).

The five-employee limitation for workers' compensation liability was not applicable to principle contractor liable because subcontractor failed to secure workers' compensation insurance. Brown v. Canterbury Corp., 844 S.W.2d 134, 1992 Tenn. LEXIS 609 (Tenn. 1992).

Plaintiff did not carry her burden of demonstrating that individual was anything other than a gratuitous worker where he was not compensated, nor did he receive any consideration for his services, in any form whatever; therefore, he could not be counted as a person who was regularly employeed for purposes of T.C.A. § 50-6-101(4) et seq.Garner v. Reed, 856 S.W.2d 698, 1993 Tenn. LEXIS 196 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 249 (Tenn. June 28, 1993).

In counting the number of individuals for purposes of deciding whether the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., applied, dispositive emphasis was not placed on business records alone, since everyone who ever worked at the establishment was paid in cash, not by check, and more importantly, there was some question about the reliability of the business records themselves. Garner v. Reed, 856 S.W.2d 698, 1993 Tenn. LEXIS 196 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 249 (Tenn. June 28, 1993).

Pursuant to T.C.A. § 50-6-106(5), Tennessee Workers'  Compensation Act did not apply to employer that only had three employees, and therefore personal injury complaint against employer alleged damages only in common law tort. Maggart v. Almany Realtors, Inc., 259 S.W.3d 700, 2008 Tenn. LEXIS 534 (Tenn. Aug. 14, 2008).

16. State, Counties and Municipalities.

State, counties and municipalities are not within the statute unless they elect to accept its provisions. Bohannon v. Putnam County, 157 Tenn. 170, 7 S.W.2d 58, 1927 Tenn. LEXIS 62 (1928); Johnson v. Chattanooga-Hamilton County Hospital Authority, 749 S.W.2d 36, 1988 Tenn. LEXIS 73 (Tenn. 1988).

In view of subdivision (5), demurrer will be sustained to petition which seeks recovery for injury during employment by county but which does not allege election of county to operate under the statute, presumption of acceptance of statute under § 50-6-103 not pertaining to those expressly exempted. Bohannon v. Putnam County, 157 Tenn. 170, 7 S.W.2d 58, 1927 Tenn. LEXIS 62 (1928).

Upon acceptance of statute by a city, the terms of this section are written by law into its contracts with its employees. Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 1932 Tenn. LEXIS 86 (1933).

A policeman of a city is an officer, and not under any contract of hire so as to be an employee. Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 1932 Tenn. LEXIS 86 (1933).

Though the city accepted the provisions of the statute and in so doing referred to members of the police force as within the provisions of the statute, it is not estopped to deny liability where it is not shown that the suing policeman or the petitioner had knowledge of the fact prior to the accident. Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 1932 Tenn. LEXIS 86 (1933).

City was not liable for compensation to employee of emergency relief administration who was injured while working on city streets under supervision of foreman provided by city, as emergency relief administration was in control of job. Shelton v. Greeneville, 169 Tenn. 366, 87 S.W.2d 1016, 1935 Tenn. LEXIS 56 (1935).

Where petitioner suing under the Workers' Compensation Law knew that town of Shelbyville had accepted the provisions of such law, but did not know that it had withdrawn from such provisions and where there was no evidence that the town had given the notice of withdrawal required by this section to the commissioner of labor, the town was bound by the provisions of the statute. Shelbyville v. Hamilton, 170 Tenn. 297, 95 S.W.2d 43, 1935 Tenn. LEXIS 136 (1936).

Where insurance company carried compensation insurance insuring the employees of city water and light department for six or seven years, collected the premiums therefor and paid claims of employees of such department, including one claim of the deceased worker, the insurance company was estopped to assert the failure of the city to elect to come within the provisions of the compensation statute by complying with the provisions of this section as a defense to a claim for compensation for the death of an employee of such department arising out of and in the course of his employment. Travelers Ins. Co. v. Dudley, 180 Tenn. 191, 173 S.W.2d 142 (1943).

Where city accepted provisions of Workers' Compensation Law and entered into a contract with an insurance company for a policy designated as “Standard Workers' Compensation and Employer's Liability” and schedule listed policemen as covered, widow of a city policeman killed in the line of duty was entitled to recover compensation. Woods v. La Follette, 185 Tenn. 655, 207 S.W.2d 572, 1947 Tenn. LEXIS 370 (1947).

Where county highway department accepted Workers' Compensation Law by notice to division of workers' compensation and there was no evidence of withdrawal of acceptance, insolvency of county's insurance carriers did not relieve county of its contractual liability under the act or permit it to assert governmental immunity. Sevier County Highway Dep't v. Wells, 217 Tenn. 130, 395 S.W.2d 800, 1965 Tenn. LEXIS 525 (1965).

A legislatively created hospital district which acts on behalf of a governmental entity and performs a governmental function falls within the statutory exemption for subdivisions of the state and counties as does a hospital operated as a subsidiary of the hospital district. Finister v. Humboldt Gen. Hosp., 970 S.W.2d 435, 1998 Tenn. LEXIS 291 (Tenn. 1998).

The savings statute (T.C.A. § 28-1-105) cannot be used to extend the limitations period against a defendant protected by sovereign immunity in a workers' compensation case, even though the protected employer has opted to accept the provisions of the Workers' Compensation Act, T.C.A. § 50-6-101 et seq.Roettger v. Metropolitan Gov't, 991 S.W.2d 244, 1999 Tenn. LEXIS 286 (Tenn. Special Workers' Comp. App. Panel 1999), aff'd, Roettger v. Metro Gov't of Nashville, 1999 Tenn. LEXIS 285 (Tenn. May 27, 1999).

Denial of the municipal corporation's motion to dismiss or transfer the claimant's workers'  compensation action was affirmed because the corporation was subject to the venue provisions of the Workers'  Compensation Act when it voluntarily entered into the workers'  compensation system pursuant to an express grant of authority from the Tennessee General Assembly, which thus effected a waiver of its sovereign immunity; the specific venue provisions of the Workers'  Compensation Act controlled venue and applied and the corporation could be sued in the claimant's county of residence. Lanius v. Nashville Elec. Serv., 181 S.W.3d 661, 2005 Tenn. LEXIS 1047 (Tenn. 2005).

County that does not opt into the workers'  compensation statutes as provided for in T.C.A. § 50-6-106(6) may not exempt itself from liability under the Governmental Tort Liability Act (GTLA), T.C.A. §§ 29-20-10129-20-408, by adopting a civil service policy that purports to provide county employees with an exclusive remedy for recovering for work-related injuries. Such policies are void to the extent that they operate to preclude injured employee from pursuing their remedies under the GTLA. Crawley v. Hamilton County, 193 S.W.3d 453, 2006 Tenn. LEXIS 432 (Tenn. 2006).

17. —Eleemosynary Institutions.

An eleemosynary institution is not exempt by this section. Smith v. Lincoln Memorial University, 202 Tenn. 238, 304 S.W.2d 70, 1957 Tenn. LEXIS 386 (1957).

18. School Board.

A school board, which is initially exempted by statute from providing workers' compensation coverage, may divide employees along professional and nonprofessional lines and may elect to provide workers' compensation benefits for nonprofessional, nonunion employees while excluding professional, certified teachers who are represented by a union. Muhlheim v. Knox County Bd. of Educ., 2 S.W.3d 927, 1999 Tenn. LEXIS 431 (Tenn. 1999), rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 620 (Tenn. Nov. 6, 2000).

19. —Agreement to Accept Provisions.

Employees exempted by this section may be brought within the provisions of the statute by agreement of the parties. Eidson v. Hardware Mut. Casualty Co., 191 Tenn. 430, 234 S.W.2d 836, 1950 Tenn. LEXIS 455 (1950).

20. Lease Agreements.

Where independent contractor owner-operator (lessor) of truck had lease agreement requiring that lessor provide both the vehicle and a driver for the vehicle, the driver, for unemployment compensation purposes, was not an employee of the lessee but was an employee of the lessor owner operator, was himself a leased operator, and in each of those capacities precluded from being an employee of the lessee. Joslin v. Michigan Mut. Ins. Co., 742 S.W.2d 263, 1987 Tenn. LEXIS 1046 (Tenn. 1987).

21. Defenses — Nature of Question Raised.

When any of the provisions of this section are relied on in defense to a compensation suit, such defense raises a question of fact, and if the finding of the trial court is supported by material evidence it will be affirmed on appeal. Standard Sur. & Cas. Co. v. Sloan, 180 Tenn. 220, 173 S.W.2d 436, 1943 Tenn. LEXIS 20, 149 A.L.R. 407 (1943).

22. Raising Question on Appeal.

Where the petition charged that at the time of the injury the employer “was operating under the Workers' Compensation Law, and carried compensation insurance on petitioner and other employees” with a named insurance company and the employer and the insurance company jointly answered and expressly “admitted” these charges and pleaded specially several specific defenses, the defendants could not on appeal raise for the first time the contention that the parties were engaged in interstate commerce at the time of the injury. Standard Sur. & Cas. Co. v. Sloan, 180 Tenn. 220, 173 S.W.2d 436, 1943 Tenn. LEXIS 20, 149 A.L.R. 407 (1943).

23. Leased Vehicles.

An owner-operator is a person who owns and operates the leased vehicle, whereas a leased-operator must be construed to be a nonowner operating a vehicle pursuant to a lease agreement. Long v. Stateline Systems, Inc., 738 S.W.2d 622, 1985 Tenn. LEXIS 542 (Tenn. 1985).

T.C.A. § 50-6-106 excludes “employees” of owner-operators or leased-operators. Long v. Stateline Systems, Inc., 738 S.W.2d 622, 1985 Tenn. LEXIS 542 (Tenn. 1985).

Collateral References.

Award of workers' compensation benefits to professional athletes. 112 A.L.R.5th 365.

Continuity and duration of employment required by provision making applicability of act depend on number of persons employed. 81 A.L.R. 1232.

Liability for injury to window washer. 28 A.L.R. 624.

Property owner's liability for injury to workmen engaged in building or repairing structure under provisions as to casual employment. 15 A.L.R. 735.

Validity, construction, and application of statutory provisions exempting or otherwise restricting farm and agricultural workers from worker's compensation coverage. 40 A.L.R.6th 99.

What is casual employment. 33 A.L.R. 1452, 60 A.L.R. 1195, 107 A.L.R. 934.

Tort liability for window washer's injury or death. 69 A.L.R.4th 207.

50-6-107. Application to coal mine operators and employees.

This chapter shall apply to coal mine operators and to their employees.

Code 1932, § 6857; Acts 1972, ch. 699, § 1; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-907.

Law Reviews.

Workers' Compensation Outline (Paul Campbell III), 18 No. 3 Tenn. B.J. 11 (1982).

NOTES TO DECISIONS

1. Company Not Operating under Statute — Restricted Defenses.

If a coal company fails to comply with the Workers' Compensation Law, it is deprived of the common-law defenses of assumption of risk and contributory negligence, and the defense that the injury is due to the negligence of a fellow servant. Moore Coal Co. v. Brown, 166 Tenn. 516, 64 S.W.2d 3, 1933 Tenn. LEXIS 109 (1933).

50-6-108. Right to compensation exclusive.

  1. The rights and remedies granted to an employee subject to this chapter, on account of personal injury or death by accident, including a minor whether lawfully or unlawfully employed, shall exclude all other rights and remedies of the employee, the employee's personal representative, dependents or next of kin, at common law or otherwise, on account of the injury or death.
  2. No employer who fails to secure payment of compensation as required by this chapter, shall be permitted to defend the suit upon any of the following grounds, in any suit brought against the employer by an employee covered by this chapter or by the dependent or dependents of the employee, to recover damages for personal injury or death arising from an accident:
    1. The employee was negligent;
    2. The injury was caused by the negligence of a fellow servant or fellow employee; or
    3. The employee had assumed the risk of the injury.
  3. This section shall not be construed to preclude third party indemnity actions against an employer who has expressly contracted to indemnify the third party.

Acts 1919, ch. 123, § 8; Shan. Supp., § 3608a157; Code 1932, § 6859; Acts 1961, ch. 184, § 2; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-908; Acts 1985, ch. 326, § 1; 2013, ch. 289, § 13.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which added subsection (b), shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, added (b) and redesignated former (b) as present (c).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

NOTES TO DECISIONS

1. Exclusivity.

Where an employee sued an employer and several employees, alleging defamation, intentional infliction of emotional distress negligent infliction of emotional distress, invasion of privacy, negligence, false imprisonment, and misrepresentation based on allegations that a coworker falsely accused him of violating the company's alcohol policy, and that, based on these allegations, he was subjected to breath and blood alcohol tests and suspended until the results thereof, the claim were barred the workers'  compensation statute provided the exclusive remedy for an employee who was injured during the course and scope of his employment. Wiggins v. Kimberly-Clark Corp., 641 Fed. Appx. 545, 2016 U.S. App. LEXIS 2558, 2016 FED App. 94N (6th Cir.) (6th Cir. Tenn. 2016).

Although the Tennessee Workers'  Compensation Law, T.C.A. § 50-6-101, is the exclusive remedy for employees who are subject to it, the statute does not apply to a common carrier doing an interstate business while engaged in interstate commerce that is already regulated as to the employer's liability by act of Congress. Therefore, a railroad company engaged in interstate commerce, and its liability for employee injuries is determined by applying the Federal Employer Liability Act, 45 U.S.C.S. §§ 51 - 60, to substantive issues. McBee v. CSX Transp., Inc., — S.W.3d —, 2017 Tenn. App. LEXIS 129 (Tenn. Ct. App. Feb. 24, 2017).

In a case arising from a motor vehicle accident involving two co-workers, plaintiff was limited exclusively to his recovery in workers'  compensation and could not bring a common law negligence claim against his co-worker for the same incident. Williams v. Buraczynski, — S.W.3d —, 2017 Tenn. App. LEXIS 487 (Tenn. Ct. App. July 19, 2017).

Employee's claim of outrageous conduct/intentional infliction of emotional distress filed against his employer was properly dismissed based on the exclusivity of his workers'  compensation remedy because the employee had previously filed a workers'  compensation claim against the employer, seeking compensation for injuries arising out of the same incident; the employee did not allege facts showing that the agents actually intended that he be injured by their actions; and it would be inappropriate to infer actual intent to injure as the actions taken by his supervisors were related to an alleged violation of company policy, establishing a business related justification for their actions. Byrd v. Appalachian Elec. Coop., — S.W.3d —, 2018 Tenn. App. LEXIS 216 (Tenn. Ct. App. Apr. 25, 2018).

Pertinent language in the statute, which describes the benefits available under the Workers'  Compensation Law as an injured worker's exclusive remedy, has not changed; as a result, the Tennessee Supreme Court finds nothing in the Workers'  Compensation Reform Act of 2013, or subsequent amendments, that authorizes an award of pre-judgment interest. Batey v. Deliver This, Inc., — S.W.3d —, 2019 Tenn. LEXIS 18 (Tenn. Jan. 29, 2019).

Circuit court was without jurisdiction to consider an injured worker's tort claims based on negligence, fraud, and intentional misrepresentation because, although it was not determined whether the worker was employed by the general contractor or a subcontractor, the exclusive remedies provided by the Tennessee Workers'  Compensation Law, T.C.A. §§ 50-6-101 to 50-6-108, applied as the worker's personal injuries arose within the course and scope of the worker's employment at a construction site. Swindle v. Goodlow, — S.W.3d —, 2020 Tenn. App. LEXIS 72 (Tenn. Ct. App. Feb. 20, 2020).

2. Rights of Action Not Barred by Section.

Exclusivity provision of the workers'  compensation law did not apply, as the evidence did not support a finding that the assault on the restaurant manager was a natural incident of her employment, nor was it causally connected to her employment, as the assault did not occur in order to force open the safe, as she had permitted the assailant to rob the safe, and the sexual assault was not a risk inherent in her employment or a condition under which her work was required to be performed. Doe v. P.F. Chang's China Bistro, — S.W.3d —, 2017 Tenn. App. LEXIS 584 (Tenn. Ct. App. Aug. 29, 2017).

50-6-108. Right to compensation exclusive. [Applicable to injuries occurring prior to July 1, 2014.]

  1. The rights and remedies granted to an employee subject to this chapter, on account of personal injury or death by accident, including a minor whether lawfully or unlawfully employed, shall exclude all other rights and remedies of the employee, the employee's personal representative, dependents or next of kin, at common law or otherwise, on account of the injury or death.
  2. This section shall not be construed to preclude third party indemnity actions against an employer who has expressly contracted to indemnify the third party.

Acts 1919, ch. 123, § 8; Shan. Supp., § 3608a157; Code 1932, § 6859; Acts 1961, ch. 184, § 2; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-908; Acts 1985, ch. 326, § 1.

Cross-References. Administration by department of labor and workforce development, § 4-3-1405.

Administration by state board of education in cooperation with federal government, § 49-11-606.

Law Reviews.

Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee (Carol A. Mutter), 57 Tenn. L. Rev. 199 (1990).

The OSHA Hazard Communication Standard (Gary C. Shockley), 25 No. 5 Tenn. B.J. 22 (1989).

Torts — Ridings v. Ralph M. Parsons Co.: The Tennessee Supreme Court Rejects Use of Employer Negligence to Reduce Liability of Defendants in Post-McIntyre On-the-Job Tort Cases, 26 U. Mem. L. Rev. 1533 (1996).

Weapons in the Workplace: The Effect of Tennessee's Concealed Weapons Statute on Employer Liability, 28 U. Mem. L. Rev. 281 (1997).

Workers' Compensation — Anderson v. Save-ALot, Ltd.: Tennessee's Workers' Compensation Law is No Place for Sexual Harassment, 30 U. Mem. L. Rev. 185 (1999).

Workers' Compensation — Valencia v. Freeland & Lemm Construction Company: Proving an Employer's Intent Remains Nearly Impossible in Tennessee, 34 U. Mem. L. Rev. 717 (2004).

NOTES TO DECISIONS

1. Validity of Section.

This statute does not violate the constitution as a deprivation of a property right of an employee without just compensation. An employee has no property right in the common-law rules of liability applicable to relation of employer and employee prior to occurrence of an injury. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This section, in providing that rights under Workers' Compensation Law are exclusive and in precluding wife's right to sue for loss of consortium resulting from compensable injuries to husband occurring after effective date of statute, did not amount to the taking of a right without due process of law. Nichols v. Benco Plastics, Inc., 225 Tenn. 334, 469 S.W.2d 135, 1971 Tenn. LEXIS 347 (1971).

2. Construction With Other Provisions.

The state and federal statutes governing the operation of strip mines were not designed to remove the exclusive remedy provisions of the workers' compensation statute. King v. Ross Coal Co., 684 S.W.2d 617, 1984 Tenn. App. LEXIS 2992 (Tenn. Ct. App. 1984).

The phrase “in all cases” in T.C.A. § 56-7-105 and the exclusive remedy in T.C.A. § 50-6-108 denote the same degree of exclusiveness. Chandler v. Prudential Ins. Co., 715 S.W.2d 615, 1986 Tenn. App. LEXIS 3011 (Tenn. Ct. App. 1986).

T.C.A. § 50-6-108 clearly expresses a legislative intent that any potential liability of the employer arising from “injury or death” is abolished in favor of the remedy provided by workers' compensation. Harman v. Moore's Quality Snack Foods, Inc., 815 S.W.2d 519, 1991 Tenn. App. LEXIS 189 (Tenn. Ct. App. 1991).

In determining whether an employee's claims under the Tennessee Human Rights Act, T.C.A. § 4-21-101 et seq., are barred by the exclusive remedy provision of T.C.A. § 50-6-108, trial court must determine whether an employee's claim is based upon real discrimination or arises from employer misconduct that is a normal part of the employment relationship; T.C.A. § 50-6-108 will bar claims of the latter type. Harman v. Moore's Quality Snack Foods, Inc., 815 S.W.2d 519, 1991 Tenn. App. LEXIS 189 (Tenn. Ct. App. 1991).

Principal contractor liable under T.C.A. § 50-6-113 is immune to tort actions of injured employee to the same extent as the subcontractor. Mathis v. Bowater, Inc., 985 F.2d 277, 1993 U.S. App. LEXIS 1895 (6th Cir. Tenn. 1993).

Defendants in a suit for personal injuries based on allegations of negligence and strict liability in tort could not assert as an affirmative defense that the plaintiff's employer caused or contributed to the plaintiff's injuries and damages notwithstanding that the injuries were sustained in the course and scope of the plaintiff's employment. Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 1996 Tenn. LEXIS 57 (Tenn. 1996).

3. Application.

If accident arose out of and in the course of the employment, the provisions of this section control. Kaylor v. Magill, 181 F.2d 179, 1950 U.S. App. LEXIS 2576 (6th Cir. Tenn. 1950).

As between employer and employee, rights of the employee against the employer as provided by the compensation law are exclusive of all other rights and remedies. Trammell v. Appalachian Electric Co-operative, 135 F. Supp. 512, 1955 U.S. Dist. LEXIS 2610 (D. Tenn. 1955); Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963); Clower v. Memphis Light, Gas & Water Div., 54 Tenn. App. 716, 394 S.W.2d 718, 1965 Tenn. App. LEXIS 288 (Tenn. Ct. App. 1965).

Decision in state court that employee was not injured in course of employment under Workers' Compensation Law would not prevent employee from recovering in civil tort action against employer in federal court. Palm Beach Co. v. Crum, 262 F.2d 586, 1958 U.S. App. LEXIS 3458 (6th Cir. Tenn. 1958).

The Workers' Compensation Act constitutes a complete substitute for the previous remedies in tort on the part of the employee. Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963).

Where widow was receiving compensation benefits under Illinois law for death of her husband, employee of tower erector, she could not recover from prime contractor on theory that the tower erector was negligent and prime contractor was his employer, as both Illinois and Tennessee law provide that if an employee accepts workers' compensation, this will be the exclusive remedy against employer. Mooney v. Stainless, Inc., 338 F.2d 127, 1964 U.S. App. LEXIS 4741 (6th Cir. Tenn. 1964), cert. denied, 381 U.S. 925, 85 S. Ct. 1561, 14 L. Ed. 2d 684, 1965 U.S. LEXIS 1173 (1965).

The Workers' Compensation Law bars a common law action against the employer for injuries sustained as a result of intentional assault and battery by a fellow employee but the statute does not bar a common law action against a fellow employee who commits an intentional and malicious assault and battery upon the employee. Williams v. Smith, 222 Tenn. 284, 435 S.W.2d 808, 1968 Tenn. LEXIS 432 (1968).

T.C.A. § 50-6-108 provides the exclusive remedy for permanent disfigurement arising out of and in the course of employment. Clayton v. Pizza Hut, Inc., 673 S.W.2d 144, 1984 Tenn. LEXIS 820 (Tenn. 1984).

Where permanent disfigurement is not compensable, but the worker is compensated, or is entitled to compensation for temporary disability or medical expenses, the exclusive remedy provision of the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., extends to the entire injury and all its damages. Clayton v. Pizza Hut, Inc., 673 S.W.2d 144, 1984 Tenn. LEXIS 820 (Tenn. 1984).

Owner of project site was acting as a principal contractor, and was therefore immune to tort liability. Mathis v. Bowater, Inc., 985 F.2d 277, 1993 U.S. App. LEXIS 1895 (6th Cir. Tenn. 1993).

If an employee is able to prove that the employer had an actual intent to injure the employee, then the exclusive provisions of the Workers' Compensation Act, T.C.A. § 50-6-101 et seq., do not apply. Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 1993 Tenn. App. LEXIS 96 (Tenn. Ct. App. 1993).

The law in Tennessee requires proof of an actual intent to injure an employee in order to avoid the exclusive remedy provisions of the Workers' Compensation Act, T.C.A. § 50-6-101 et seq.Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 1993 Tenn. App. LEXIS 96 (Tenn. Ct. App. 1993).

Contract between employer and contractor recognized that the employer would be responsible for the maintenance of workers'  compensation insurance, thus implying that its workers'  compensation insurer would be looked to for the payment of benefits if an employee was injured; accordingly, the insurer was unable to show that it was an unintended third-party beneficiary of the contract and had no standing to file a claim based on the breach of contract. Travelers Prop. Cas. Co. of Am. v. Unitrac R.R. Materials, — S.W.3d —, 2007 Tenn. App. LEXIS 556 (Tenn. Ct. App. Aug. 29, 2007).

Summary judgment was properly granted to a decedent's employer in a wrongful death action on the ground that the decedent's injury was compensable under the workers’ compensation laws and that, therefore, the exclusive remedy provision in T.C.A. § 50-6-108(a) did not apply, because the time, place and circumstances test was satisfied, in that the accident occurred a reasonable interval after the decedent finished work while she was engaged in the incidental activity of talking with her co-workers. Further, the injury arose out of the decedent's employment because the danger of getting struck by a car and killed while standing off the roadway was one peculiar to her employment as a construction zone flagger. Clawson v. Burrow, 327 S.W.3d 638, 2010 Tenn. App. LEXIS 306 (Tenn. Ct. App. Apr. 30, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1094 (Tenn. Nov. 12, 2010).

After the workers'  compensation claim of an employee of a real estate and auction company was settled, the employee's common law tort claims against the employer's managing broker were dismissed because T.C.A. § 50-6-108(a) limited the employee's rights and remedies to the workers'  compensation settlement, as the employee was injured in the course of the employee's employment while assisting the managing broker of the company to move cattle panels on the managing broker's personal farm. However, the employee was permitted, under T.C.A. § 50-6-112(a), to maintain common law tort claims against the managing broker's adult child, who was called to assist after the injury occurred, because the adult child was not an affiliate, officer, director, employee, agent or representative of the employer when the employee sustained injuries and the adult child did not come within the terms of the release which the employee signed. Ridenour v. Carman, — S.W.3d —, 2013 Tenn. App. LEXIS 180 (Tenn. Ct. App. Mar. 15, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 691 (Tenn. Aug. 14, 2013).

If the employee sought to recover damages resulting from his on-the-job injury, his exclusive avenue for such a recovery was the Tennessee workers' compensation statutes because the employee had not alleged an intentional tort on the part of any defendant in the case. Thurmer v. Charter Communs., LLC, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 59713 (E.D. Tenn. Apr. 30, 2014).

4. —Employee of Independent Contractor.

Employee of independent contractor which contracted to make certain changes in paper mill was not an employee of the paper mill and therefore such employee could sue paper mill for negligence. Bowaters Southern Paper Corp. v. Brown, 253 F.2d 631, 1958 U.S. App. LEXIS 5205 (6th Cir. Tenn. 1958).

5. —Loaned Servant.

Where plaintiff was a loaned servant of defendant, the immunity from common-law liability applied both to defendant and defendant's regular employees in the same manner as in the uncomplicated case involving only one employer and his direct employees. Carpenter v. Hooker Chemical & Plastics Corp., 553 S.W.2d 356, 1977 Tenn. App. LEXIS 286 (Tenn. Ct. App. 1977).

6. —Intentional Tort Exception.

The courts have carved out an exception to exclusivity provisions of T.C.A. § 50-6-101 for intentional torts committed by an employer against an employee; these torts give rise to a common law action for damages. Coffey v. Foamex L.P., 2 F.3d 157, 1993 U.S. App. LEXIS 20135 (6th Cir. Tenn. 1993).

Tennessee courts have consistently defined the scope of the intentional tort exception to the exclusivity provisions narrowly, holding that “gross or criminal negligence” is not considered an intentional tort for this purpose. Coffey v. Foamex L.P., 2 F.3d 157, 1993 U.S. App. LEXIS 20135 (6th Cir. Tenn. 1993).

Although the Tennessee courts consider fraud to be an intentional tort, allegations of fraud resulting in worker injury do not necessarily fall outside the workers' compensation scheme. The existence of the defendant's actual intent, not the nature of the tort, determines whether common law suit is permitted; it takes more than a mere inference of tortious intent to convert the defendant's negligence into an intentional tort. Coffey v. Foamex L.P., 2 F.3d 157, 1993 U.S. App. LEXIS 20135 (6th Cir. Tenn. 1993).

In a tort action against their employer, where employees did not state that the employer actually intended to injure them, but alleged only that the employer's conduct was willful, wanton, deliberate, and grossly negligent, their claims were barred by the exclusivity provisions of T.C.A. § 50-6-108. Scarborough v. Brown Group, 935 F. Supp. 954, 1995 U.S. Dist. LEXIS 21110 (W.D. Tenn. 1995).

Employee's discrimination claims under 42 U.S.C.S. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., were not barred by the exclusive remedy provisions of the Tennessee Workers'  Compensation Law (TWCL), T.C.A. § 50-6-101 et seq., because the employee had alleged intentionally discriminatory acts which resulted in his injuries, and those contentions alone removed the case out of the exclusivity protection of the TWCL. Medrano v. MCDR, Inc., 366 F. Supp. 2d 625, 2005 U.S. Dist. LEXIS 15074 (W.D. Tenn. 2005).

Heirs'  tort claims against a decedent's employers were properly dismissed because the complaint failed to allege facts showing that employers, by requiring the decedent to to work near toxic mold, actually intended to injure her within the meaning of the intentional tort exception to T.C.A. § 50-6-108, the exclusive remedy requirement of the Tennessee Workers'  Compensation Act. Rodgers v. GCA Servs. Group, — S.W.3d —, 2013 Tenn. App. LEXIS 99 (Tenn. Ct. App. Feb. 13, 2013).

7. Guarantor of Self-Insured.

The guarantor of a self-insured employer's obligations is entitled to the same immunity as a workers' compensation insurer. Malkiewicz v. R.R. Donnelley & Sons Co., 703 F. Supp. 49, 1989 U.S. Dist. LEXIS 290 (M.D. Tenn. 1989), aff'd without opinion, 932 F.2d 968, 1991 U.S. App. LEXIS 14568 (6th Cir. Tenn. 1991).

There is no “principled” distinction between the status of a workers' compensation insurer and that of a “guarantor” who guarantees the employer's financial ability to comply with the workers' compensation statutes. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

Inclusion of a guarantor within the definition of “employer” so as to afford it the benefit of exclusive remedy provisions is consistent with the legislative purpose of insuring solvent and responsible sources of recovery under the compensation program. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

8. Election to Come under Statute — Effect on Remedies.

Before the 1973 amendment to § 50-6-103, it was held that an employee was bound by the remedies prescribed by the statute by his election to come under the statute though ignorant of its provisions. Mitchell v. Usilton, 146 Tenn. 419, 242 S.W. 648, 1921 Tenn. LEXIS 24 (1921).

9. Insufficient Facts to Show Acceptance — Effect.

Defense that employer has complied with the statute is not available in common law action where it appeared that employer had taken out insurance but had not notified commissioner as required by § 50-6-405. Cain v. Sisk, 18 Tenn. App. 84, 72 S.W.2d 1061, 1934 Tenn. App. LEXIS 15 (Tenn. Ct. App. 1934).

To show an acceptance of benefits under the compensation statute so as to exclude common-law recovery, it is not sufficient that the employer thought that the employee was applying for and receiving such benefits when the evidence does not show that he actually did so, especially where the employer rendered monthly statements of money advanced which evidenced an intention to claim repayment. Cain v. Sisk, 18 Tenn. App. 84, 72 S.W.2d 1061, 1934 Tenn. App. LEXIS 15 (Tenn. Ct. App. 1934).

10. Rights of Action Barred by Section.

This section prevents a common-law action. Williams v. Carolina, C. & O. R. Co., 154 Tenn. 224, 289 S.W. 520, 1926 Tenn. LEXIS 117 (1926); McCreary v. Nashville, C. & S. L. Ry., 161 Tenn. 691, 34 S.W.2d 210, 1930 Tenn. LEXIS 56 (1931).

If an employer has complied with the Workers' Compensation Law it is not subject to a common law suit for damages for personal injuries, since the remedy provided in the Workers' Compensation Law is exclusive. Copeland v. Cherry, 20 Tenn. App. 122, 95 S.W.2d 1275, 1936 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1936); Napier v. Martin, 194 Tenn. 105, 250 S.W.2d 35, 1952 Tenn. LEXIS 356 (1952).

Where employees of a subcontractor operating under the compensation statute were injured when a scaffold on which they were working was struck by a truck driven by an employee of the principal contractor, such employees could not maintain an action against the principal contractor and an intermediate contractor as such parties were primarily liable under the provisions of § 50-6-113, and were not “third parties” so as to be liable to suit at common law. Adams v. Hercules Powder Co., 180 Tenn. 340, 175 S.W.2d 319, 1943 Tenn. LEXIS 21, 151 A.L.R. 1352 (1943).

Widow of watchman killed while attempting to operate gate which fell upon him was not entitled to sue contractor on naval project for damages but was restricted to recovery of compensation where contractor was in charge of guards and had complied with provisions of Workers' Compensation Law. McDonald v. Dunn Const. Co., 182 Tenn. 213, 185 S.W.2d 517, 1945 Tenn. LEXIS 212 (1945).

Subcontractor for construction of road could not be sued for damages by driver of truck furnished by company for hauling stone of stone company who had contracted to furnish stone to subcontractor since subcontractor was not a third party. McVeigh v. Brewer, 182 Tenn. 683, 189 S.W.2d 812, 1945 Tenn. LEXIS 266 (1945).

Where husband was subject to Workers' Compensation Law and employer was paying him benefits under such statute for injuries, wife did not have the right to maintain common-law action for loss of services and consortium of husband as a result of such injuries. Napier v. Martin, 194 Tenn. 105, 250 S.W.2d 35, 1952 Tenn. LEXIS 356 (1952).

No action for punitive damages is allowable in a workers' compensation case. Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963).

Where, under contract between defendant and plaintiff's immediate employer, the latter furnished men to work under the direction and control of defendant's representatives reconstructing generating station, plaintiff worker having collected compensation from his immediate employer's insurance carrier for injuries suffered on the reconstruction project, must be treated and considered as an employee of defendant and cannot maintain a common-law action against defendant. Clower v. Memphis Light, Gas & Water Div., 54 Tenn. App. 716, 394 S.W.2d 718, 1965 Tenn. App. LEXIS 288 (Tenn. Ct. App. 1965).

Those provisions of the act making the principal contractor liable for injuries to a subcontractor's employee to the same extent as the immediate employer, place primary liability on the principal contractor along with the subcontractor and therefore the principal contractor is not a “third party” liable to a common-law action by an employee of the subcontractor. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

This section operated to preclude wife whose husband was receiving workers' compensation benefits from employer from bringing action for loss of consortium on basis of compensable injuries to husband. Nichols v. Benco Plastics, Inc., 225 Tenn. 334, 469 S.W.2d 135, 1971 Tenn. LEXIS 347 (1971).

The Tennessee Workers' Compensation Law bars third party actions by making the rights and remedies granted to the plaintiffs the exclusive remedy. McCoy v. Wean United, Inc., 67 F.R.D. 495, 1975 U.S. Dist. LEXIS 13502 (D. Tenn. 1975).

Workers' compensation is the exclusive remedy except where the injury is caused by a third party. McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240, 1977 Tenn. LEXIS 535 (Tenn. 1977).

Where claimant was a hospital employee who suffered injury arising out of and in the course of her employment, and subsequently was admitted to the employer hospital where her injury was aggravated by negligent treatment, she was barred from suing the hospital at common law for any injury incurred while she was a patient, since the hospital was her employer and not a third party. McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240, 1977 Tenn. LEXIS 535 (Tenn. 1977).

Even if employer was guilty of gross or criminal negligence which resulted in injury to employee, so long as employer did not cause the injury intentionally employer could not be sued at common law, but sole remedy was under the Workers' Compensation Law. Cooper v. Queen, 586 S.W.2d 830, 1979 Tenn. App. LEXIS 334 (Tenn. Ct. App. 1979).

An allegation that the defendant intentionally operated its store in a negligent manner which caused the worker's injuries does not take the case out of the exclusive remedy provision of T.C.A. § 50-6-108. Estate of Schultz v. Munford, Inc., 650 S.W.2d 37, 1982 Tenn. App. LEXIS 429 (Tenn. Ct. App. 1982).

Taking together T.C.A. §§ 50-6-113 and 50-6-108 tort recovery is barred against a principal contractor. Posey v. Union Carbide Corp., 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

Co-employees are not liable for breach of an employer's duty to provide a safe work place, and the rights and remedies granted to an employee subject to this statute, on account of personal injury or death by accident, exclude all other rights and remedies. Hamilton v. Bean, 745 F.2d 1034, 1984 U.S. App. LEXIS 16951 (6th Cir. 1984).

The exclusive remedy provision of the Tennessee Workers' Compensation Law, T.C.A. § 50-6-101 et seq., bars an employee who has sustained a compensable injury covered by the law from maintaining an independent action against the workers' compensation carrier of the employer on the grounds of alleged bad faith in handling the workers' compensation claim, negligence in regard to handling that claim, and outrageous conduct. Perry v. Transamerica Ins. Group, 703 S.W.2d 151, 1985 Tenn. App. LEXIS 3143 (Tenn. Ct. App. 1985).

Consortium claims and derivative actions are within the ambit of workers' compensation exclusivity. Brewer v. Monsanto Corp., 644 F. Supp. 1267, 1986 U.S. Dist. LEXIS 21504 (M.D. Tenn. 1986).

Allegations that defendant knowingly permitted dangerous working conditions to exist and violated safety regulations is not sufficient to subject defendant to common law liability. The Workers' Compensation Law, T.C.A. § 50-6-101 et seq., provides the exclusive remedy for the entire injury and all of its damages. Mize v. Conagra, Inc., 734 S.W.2d 334, 1987 Tenn. App. LEXIS 2513 (Tenn. Ct. App. 1987).

Even though the employer allowed plaintiff to work with explosives and plaintiff was untrained and inexperienced in their use, plaintiff's allegations were insufficient as a matter of law to constitute the actual intent to injure which was necessary to avoid the exclusive remedy provisions of the Tennessee Workers' Compensation Act, T.C.A. § 50-6-101 et seq.Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 1993 Tenn. App. LEXIS 96 (Tenn. Ct. App. 1993).

Proof of safety violations, even if they are shown to be willful, do not provide a sufficient basis to infer actual intent to injure a plaintiff and, thus, deprive an injury of its accidental character for the purposes of subjecting an employer to a common law action. Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 1993 Tenn. App. LEXIS 96 (Tenn. Ct. App. 1993).

T.C.A. § 50-6-108 barred an action in tort for personal injuries brought by the employee of a subcontractor against a contractor, where the employee had recovered all workers' compensation benefits to which he was entitled from the insurer of his employer. Campbell v. Dick Broadcasting Co., 883 S.W.2d 604, 1994 Tenn. LEXIS 254 (Tenn. 1994).

Where plaintiff was covered by the workers' compensation law, he did not have a right to sue his employer in tort prior to or subsequent to the adoption of comparative fault. Castleman v. Ross Eng'g, 958 S.W.2d 720, 1997 Tenn. LEXIS 626 (Tenn. 1997).

Defendant's status as independent contractor did not place it outside the purview of T.C.A. § 50-6-108 because it was performing a non-delegable duty of the workers' compensation carrier when it failed to pay plaintiff's claim. Davis v. Alexsis, Inc., 2 S.W.3d 228, 1999 Tenn. App. LEXIS 203 (Tenn. Ct. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 449 (Tenn. Sept. 13, 1999).

An employer was not allowed to offer an employee an alternative benefit option that would have circumvented Tennessee workers' compensation law when the employer was aware that the employee's injury was work-related. Frayser v. Dentsply Int'l, 78 S.W.3d 242, 2002 Tenn. LEXIS 303 (Tenn. 2002), aff'd, 78 S.W.3d 242, 2002 Tenn. LEXIS 302 (Tenn. 2002).

Judicially created exception to the exclusive remedy requirement of workers compensation law, which requires actual intent, was not broad enough to include an employer's conduct that was “substantially certain” to cause injury or death. In the absence of an allegation of actual intent, the employee was limited to his workers compensation remedies. Valencia v. Freeland & Lemm Constr. Co., 108 S.W.3d 239, 2003 Tenn. LEXIS 572 (Tenn. 2003).

Court dismissed the employee's state tort law claims against the general contractor because under T.C.A. § 50-6-108, an employee could not bring a cause of action under the common law on account of personal injury or death. Medrano v. MCDR, Inc., 366 F. Supp. 2d 625, 2005 U.S. Dist. LEXIS 15074 (W.D. Tenn. 2005).

Employee, Tennessee resident who was injured in Texas, could not pursue common law tort claims against a general contractor or a co-worker as Tennessee workers'  compensation benefits had been awarded under T.C.A. § 50-6-115; exclusivity provision barred the claims under T.C.A. § 50-6-108 because the employer as a subcontractor had provided workers' compensation insurance under T.C.A. § 50-6-113. Scott v. AMEC Kamtech, Inc., 583 F. Supp. 2d 912, 2008 U.S. Dist. LEXIS 73662 (E.D. Tenn. Sept. 24, 2008).

In a personal injury case in which a worker sued a company and the company moved for summary judgment, arguing that the worker's suit was precluded by the principal contractor and exclusivity provisions of Tennessee's Workers'  Compensation Law, the worker unsuccessfully argued that his employer, not the company, retained the complete authority to control his work and that the company could not be his statutory employer. Bray v. TVA, 742 F. Supp. 2d 911, 2010 U.S. Dist. LEXIS 110222 (W.D. Tenn. Sept. 24, 2010).

Employees of a credit union who were allegedly sickened by exposure to carbon monoxide emanating from a hot water heater in the basement of their building were limited to the remedies afforded by the workers'  compensation law because their injuries had a rational, causal connection with their employment and the conditions under which their work was required to be performed. Coleman v. St. Thomas Hosp., 334 S.W.3d 199, 2010 Tenn. App. LEXIS 500 (Tenn. Ct. App. Aug. 4, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 1061 (Tenn. Nov. 15, 2010).

In a personal injury case in which a worker, who had been employed by a subcontractor to a general contractor, appealed a district court's entry of summary judgment in favor of the general contractor, under T.C.A. § 50-6-108(a), the Tennessee Workers'  Compensation Act provided the worker with his exclusive remedy, the general contractor was immune under T.C.A. § 50-6-113 to the same extent as the worker's employer, and T.C.A. § 50-6-115 and was relevant to the case. Scott v. AMEC Kamtech, Inc., 412 Fed. Appx. 818, — F.3d —, 2011 U.S. App. LEXIS 3758, 2011 FED App. 111N (6th Cir.).

Employer could not be held liable for its actions as the proximate, or legal cause of a worker's injury due to its statutory immunity even though the trial court properly found that its actions were an intervening cause of the worker's injury. Long v. Quad Power Prods., LLC, — S.W.3d —, 2015 Tenn. App. LEXIS 131 (Tenn. Ct. App. Mar. 20, 2015).

11. Rights of Action Not Barred by Section.

This section does not prevent the maintenance of a common law action against third persons. Bristol Tel. Co. v. Weaver, 146 Tenn. 511, 243 S.W. 299, 1921 Tenn. LEXIS 29 (1921).

A suit by a hospital to recover for medical services rendered employee under a contract with employer is not a suit by the employee and is not barred by this section. Weakley County Hospital v. Kentucky-Tennessee Light & Power Co., 171 Tenn. 662, 107 S.W.2d 226, 1937 Tenn. LEXIS 148 (1937).

There are many injuries which are not compensable under the statute and which cannot be made compensable under the court's rule of liberal interpretation, and in such cases the injured employee may have a common law right of action for the injury sustained. Matthews v. Hardaway Contracting Co., 179 Tenn. 98, 163 S.W.2d 59, 1941 Tenn. LEXIS 99 (1942).

When the relationship of master and servant is shown to exist, the contract of employment is governed by the common law except when abrogated or modified by statute. Hammett v. Vogue, Inc., 179 Tenn. 284, 165 S.W.2d 577, 1942 Tenn. LEXIS 22 (1942).

An employee who suffers an injury not covered by the Workers' Compensation Law may have his action at law for damages, and he is not deprived of such lawful remedy because of a mistaken view of the proper remedy. Hammett v. Vogue, Inc., 179 Tenn. 284, 165 S.W.2d 577, 1942 Tenn. LEXIS 22 (1942).

Exclusive right of compensation to all employees provided for in this section did not apply where engineer employed by general contractor was run over by truck driven by employee of subcontractor since engineer did not have right or remedy of compensation against subcontractor. Olsen v. Sharpe, 191 Tenn. 503, 235 S.W.2d 11, 1950 Tenn. LEXIS 464 (1950).

Where injury to worker was aggravated by improper treatment by physician, employed by employer on a fee basis, injured employee could bring action against the physician for malpractice, notwithstanding that he received compensation under the act. Garrison v. Graybeel, 202 Tenn. 567, 308 S.W.2d 375, 1957 Tenn. LEXIS 442 (1957).

Although injured employee, injured by action of coemployee while acting in course of employment, sued coemployee at common law for negligence and later dismissed action after receiving $3,500 from coemployee in exchange for covenant not to sue, he was not estopped to assert his workers' compensation claim, since employer was not prejudiced and stipulation showed that attorney for injured employee did not know that coemployee was driving employer's automobile for which employer furnished gasoline and allowed travel time, at time of action against coemployee. Sturkie v. Bottoms, 203 Tenn. 237, 310 S.W.2d 451, 1958 Tenn. LEXIS 295 (1958).

Where employee of motor carrier was injured through negligence of shipper and concurring negligence of carrier and employee received compensation from carrier he could thereafter sue shipper in tort for damages, and if judgment was recovered against shipper such shipper was likewise entitled to judgment against carrier because of its concurring negligence. General Electric Co. v. Moretz, 270 F.2d 780, 1959 U.S. App. LEXIS 5067 (4th Cir. Va. 1959), rehearing denied, 272 F.2d 624, 1959 U.S. App. LEXIS 5061 (4th Cir. Va. 1959), cert. denied, Mason & Dixon Lines, Inc. v. General Electric Co., 361 U.S. 964, 80 S. Ct. 593, 4 L. Ed. 2d 545, 1960 U.S. LEXIS 1648 (1960).

Where plaintiff, a maintenance mechanic, had suffered chronic lymphocytic leukemia, allegedly from exposure to radioactive and toxic substances and materials, and was shown by the record to be an employee of an independent contractor conducting the Oak Ridge operations of the atomic energy commission, he was not limited to remedies under Tennessee Workers' Compensation Law but could maintain common-law action against United States as third party tortfeasor. Mahoney v. United States, 216 F. Supp. 523, 1962 U.S. Dist. LEXIS 6118 (E.D. Tenn. 1962).

Parent corporation was not an employer and thus could be sued in a wrongful death action arising from an explosion in parent company's factory where decedent was an employee of a wholly owned subsidiary which paid decedent on its own paychecks, maintained separate payroll deduction returns, held its own charter, produced seat belts essentially dissimilar from the air bags manufactured by the parent, and hired its own employees, paying them on its own checks, and where decedent was never notified that she was actually working for the parent company. Latham v. Technar, Inc., 390 F. Supp. 1031, 1974 U.S. Dist. LEXIS 6079 (E.D. Tenn. 1974).

A coemployee who causes injury while acting outside the course of his employment is not protected from liability in common-law actions arising out of the injury. Taylor v. Linville, 656 S.W.2d 368, 1983 Tenn. LEXIS 714 (Tenn. 1983).

A corporate employer is liable for intentional torts carried out at the behest of the corporate employer but through corporate employees. Brewer v. Monsanto Corp., 644 F. Supp. 1267, 1986 U.S. Dist. LEXIS 21504 (M.D. Tenn. 1986).

Because an employer's intentional torts are outside the workers' compensation bar, none of the injuries flowing from the intentional tort can be forced back into the statute's scope. Brewer v. Monsanto Corp., 644 F. Supp. 1267, 1986 U.S. Dist. LEXIS 21504 (M.D. Tenn. 1986).

The only claims of relatives that are barred by T.C.A. § 50-6-108 are those that are based on the relationship to an injured employee; actions based on injuries independent of that relationship, even though mediated by an employee, have never been barred in Tennessee. Brewer v. Monsanto Corp., 644 F. Supp. 1267, 1986 U.S. Dist. LEXIS 21504 (M.D. Tenn. 1986).

Neither the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., nor the federal labor laws, nor employee's failure to make use of the grievance procedure barred employee's tort actions against another employee. Blair v. Allied Maintenance Corp., 756 S.W.2d 267, 1988 Tenn. App. LEXIS 317 (Tenn. Ct. App. 1988).

Administratrix was not precluded from pursuing tort claims against the general contractor under the exclusive remedy provisions of the Tennessee Workers'  Compensation Law, T.C.A. § 50-6-101 et seq., because if the administratrix's contention that the company that the deceased worked for was not a subcontractor of the general contractor, but a separate general contractor was true, the administratrix could have conceivably pursued a claim against a separate party not protected by the exclusive remedy provisions. Therefore, the court could not have concluded, based on the bare allegations of the general contractor, that it was the statutory employer of the deceased and thus insulated by the Tennessee Workers'  Compensation Law. Medrano v. MCDR, Inc., 366 F. Supp. 2d 625, 2005 U.S. Dist. LEXIS 15074 (W.D. Tenn. 2005).

Defendant employer had waived the exclusivity provision of Tennessee's workers' compensation statute, T.C.A. § 50-6-108(a), given the late date in a former employee's action alleging intentional infliction of emotional distress; the failure to raise the defense of the exclusivity provision of Tennessee's workers' compensation statute, T.C.A. § 50-6-108(a), is treated like a statute of limitations defense and is waived if not raised early in the proceeding. Pollard v. E.I. DuPont De Nemours, Inc., 412 F.3d 657, 2005 FED App. 274P, 2005 U.S. App. LEXIS 11949 (6th Cir. Tenn. 2005).

12. Subsequent Injuries.

In the field of workers' compensation law, and in suits by a worker against his employer, the initial injury is the cause of all that follows, even where there is superimposed upon the original injury, a new, or additional or independent, injury during the course of treatment, negligent or otherwise. McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240, 1977 Tenn. LEXIS 535 (Tenn. 1977).

13. Widow's Acceptance of Indemnity for Herself and Minors — Effect.

Prior to the 1949 amendment to § 50-6-112, a widow's acceptance of death benefits under this act barred any action by the personal representative, dependents or next of kin against employer or third party for wrongful death. McCreary v. Nashville, C. & S. L. Ry., 161 Tenn. 691, 34 S.W.2d 210, 1930 Tenn. LEXIS 56 (1931).

14. Recovery under Law of Another State.

The Tennessee Workers' Compensation Law does not preclude recovery under the law of another state, and the full faith and credit clause does not require that greater effect be given the Tennessee statute elsewhere than is given in the courts of this state. Ohio v. Chattanooga Boiler & Tank Co., 289 U.S. 439, 53 S. Ct. 663, 77 L. Ed. 1307, 1933 U.S. LEXIS 189 (1933).

Under certain circumstances, the pursuit of a compensation claim in another jurisdiction may preclude the filing of the same claim in the courts of Tennessee, especially where it results in an award or an approved settlement. Gray v. Holloway Constr. Co., 834 S.W.2d 277, 1992 Tenn. LEXIS 363 (Tenn. 1992).

15. —Recovery in Tennessee Precluded.

The common thread in Perkins v. BE & K, Inc., 802 S.W.2d 215, 1990 Tenn. LEXIS 486 (Tenn. 1990) and Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221, 1931 Tenn. LEXIS 131 (1931), cases in which recovery in Tennessee was held to be precluded, is the fact that workers injured in other jurisdictions had both filed out-of-state claims and received awards in those courts or entered into settlements approved by industrial commissions in those states. Gray v. Holloway Constr. Co., 834 S.W.2d 277, 1992 Tenn. LEXIS 363 (Tenn. 1992).

16. —Recovery in Tennessee Not Precluded.

The common thread in Thomas v. Transport Insurance Co., 532 S.W.2d 263, 1976 Tenn. LEXIS 603 (Tenn. 1976) and Hale v. Commercial Union Assurance Cos., 637 S.W.2d 865, 1982 Tenn. LEXIS 342 (Tenn. 1982), opinions in which the court held that recovery was not precluded, is the fact that the workers in those cases had done no more than accept benefits tendered by their employers' insurance carriers upon notice of injury, at a time when they had too little knowledge to make an “informed choice” about which of two remedies they wished to pursue, and in what forum. Gray v. Holloway Constr. Co., 834 S.W.2d 277, 1992 Tenn. LEXIS 363 (Tenn. 1992).

17. Pleading and Proof.

In a common-law action by an injured employee to recover damages for personal injuries, defendant may, under the general issue, show that plaintiff was not its employee, or it may show under its plea of not guilty that it had compensation insurance. Copeland v. Cherry, 20 Tenn. App. 122, 95 S.W.2d 1275, 1936 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1936).

Where a common-law right of action is brought, the defendant, if he claims the benefits of the Workers' Compensation Law, should plead such statute specially. Hammett v. Vogue, Inc., 179 Tenn. 284, 165 S.W.2d 577, 1942 Tenn. LEXIS 22 (1942).

Where employee sued at common law to recover damages for personal injuries from the employer without alleging that the parties had not accepted the provisions of the Workers' Compensation Law and the employer failed to rely on the provisions of the statute as an affirmative defense and where there was no reference to the statute in the pleadings, such employer was not entitled to rely on the provisions of the statute as grounds for an arrest of judgment. Hammett v. Vogue, Inc., 179 Tenn. 284, 165 S.W.2d 577, 1942 Tenn. LEXIS 22 (1942).

18. —Burden of Establishing Action under Statute.

Burden was not on employer to establish that employee's action was under this law and not under the common law, until the employee, who sued in negligence under the common law, had made out a prima facie case of liability upon the principles of law relied on in his declaration. Watson v. Borg-Warner Corp., 190 Tenn. 209, 228 S.W.2d 1011, 1950 Tenn. LEXIS 441 (1950).

19. —Concurrent Procedure under State and Federal Statutes.

Where it is difficult to tell whether a particular case falls under this statute or the federal Employers' Liability Act (former 45 U.S.C. § 51 et seq.), it may be possible to proceed under both statutes until the facts are developed, so that suit in federal court under federal act will not estop one to claim under state act. Southern R. Co. v. Grigsby, 155 Tenn. 285, 292 S.W. 3, 1926 Tenn. LEXIS 46 (1927).

20. —Pendency of Common-Law Action — Effect.

Pendency of common-law action for damages for wrongful death of husband is no bar to suit for compensation under this statute begun within the statutory period. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

21. Employer as Joint Tortfeasor.

Where an employee was killed by the concurrent negligence of the employer and a third party, the immunity of the employer under this section from tort liability for the employee's death did not also render the employer immune from liability for indemnity as a joint tortfeasor to the third party under a “save harmless” contract with the third party, who had paid a judgment for damages for the wrongful death of the employee. Brogdon v. Southern R. Co., 384 F.2d 220, 1967 U.S. App. LEXIS 5157 (6th Cir. Tenn. 1967).

No right of contribution exists in favor of a third person tortfeasor against an employer of the person injured or killed where the employer would have no tort liability unto the injured or killed employee because of the provisions of this act which does away with any tort liability upon the part of the employer. Smith v. Illinois C. R. Co., 263 F. Supp. 70, 1967 U.S. Dist. LEXIS 7329 (E.D. Tenn. 1967).

By virtue of this section the employer is not liable in tort for injuries sustained by his employees in the course of their employment, whether such liability is sought to be imposed by an action for contribution from a joint tortfeasor or by an action for indemnity under the Tennessee active-passive negligence rule. Union Carbide Corp. v. Dunn Bros. General Contractors, Inc., 294 F. Supp. 704, 1968 U.S. Dist. LEXIS 8019 (M.D. Tenn. 1968).

22. Contribution by Joint Tortfeasor.

Where an employee of a company sued a supplier of that company for damages for personal injuries suffered due to the alleged negligence of the supplier, and, but for the application of this statute, could have sued his employer and the supplier as joint tortfeasors, Tennessee law did not permit the supplier, in the absence of a contractual obligation on the part of the employer to make contribution, to sue for contribution from the employer on the ground that it was also guilty of some similar or equally causative, but different, negligent acts, which might also have constituted a proximate cause of the injury to the employee. Dawn v. Essex Conveyors, Inc., 379 F. Supp. 1342, 1973 U.S. Dist. LEXIS 12024 (E.D. Tenn. 1973).

23. Indemnity of Third Party Tortfeasor by Employer.

An employer who has paid an injured employee benefits under this statute is not liable for indemnity to a third party tortfeasor under the Tennessee active-passive negligence doctrine since, in view of this section, the employer could share no common tort liability with the third party tortfeasor. Dawn v. Essex Conveyors, Inc., 498 F.2d 921, 1974 U.S. App. LEXIS 8036 (6th Cir. Tenn. 1974), cert. denied, Process Equipment Engineering Co. v. Tennessee Eastman Co., 419 U.S. 1040, 95 S. Ct. 528, 42 L. Ed. 2d 317, 1974 U.S. LEXIS 3534 (1974).

A third-party indemnity action against an employer, based upon an express contract of indemnity, is barred by the “exclusive remedy” provision of the Tennessee Workers' Compensation Law. Tennessee River Pulp & Paper Co. v. Eichleay Corp., 708 F.2d 1055, 1983 U.S. App. LEXIS 27128 (6th Cir. Tenn. 1983).

24. Third Party Indemnity Actions.

Although in Tennessee River Pulp & Paper Co. v. Eichleay Corp., 708 F.2d 1055, 1983 U.S. App. LEXIS 27128 (6th Cir. 1983), the sixth circuit held that under Tennessee law all third-party indemnity actions against an employer, even though based upon an express contract of indemnity, were barred by the exclusive remedy provision of the Tennessee Workers' Compensation Law, on May 9, 1985, T.C.A. § 50-6-108 was amended to provide that “this section shall not be construed to preclude third party indemnity actions against an employer who has expressly contracted to indemnify such third party” and, since this amendment postdates the sixth circuit's decision in Tennessee River Pulp, the court accepted it as dispositive of this issue. Davison Specialty Chemical Co. v. S & H Erectors, Inc., 621 F. Supp. 783, 1985 U.S. Dist. LEXIS 16481 (E.D. Tenn. 1985).

A third party indemnity action against an employer for damages recovered by an injured employee against the third party is not barred by T.C.A. § 50-6-108 when the action is based on an express contract. Easter v. Exxon Co., USA, 699 S.W.2d 168, 1985 Tenn. App. LEXIS 2950 (Tenn. Ct. App. 1985).

25. Retaliatory Discharge.

An employee at will who is discharged because the employee filed a workers' compensation claim has a cause of action for retaliatory discharge against the employer. Such cause of action warrants the recovery of both compensatory and punitive damages, and would not be within the exclusive remedy rule provided by T.C.A. § 50-6-108. Leatherwood v. United Parcel Service, 708 S.W.2d 396, 1985 Tenn. App. LEXIS 3279 (Tenn. Ct. App. 1985).

An employer's failure to provide alternative employment does not constitute retaliatory discharge within the meaning of the cause of action established in Clanton v. Cain-Sloan Company, 677 S.W.2d 441, 1984 Tenn. LEXIS 935 (Tenn. 1984). Leatherwood v. United Parcel Service, 708 S.W.2d 396, 1985 Tenn. App. LEXIS 3279 (Tenn. Ct. App. 1985).

Collateral References.

Assault, Workers' Compensation Act as providing exclusive remedy for injury by. 72 A.L.R. 117, 112 A.L.R. 1258.

Common-law remedy against general employer by employee of independent contractor or against independent contractor by employee of subcontractor as affected by specific provisions of Workers' Compensation Act relating to such employees. 151 A.L.R. 1359, 166 A.L.R. 813.

Construction and application of exclusive remedy rule under state workers'  compensation statute with respect to liability for injury or death of employee as passenger in employer-provided vehicle — Against whom may rule be invoked and application of rule to particular situations and employees. 43 A.L.R.6th 375.

Construction and application of exclusive remedy rule under state workers'  compensation statutes with respect to liability for injury or death of employee as passenger in employer-provided vehicle — Requisites for, and factors affecting, applicability and who may invoke rule. 42 A.L.R.6th 545.

Contractual waiver of exclusivity of workers' compensation remedy. 117 A.L.R.5th 441.

Employer's liability for negligence of employee in driving his or her own automobile. 27 A.L.R.5th 174.

Exclusive remedy provision of state workers'  compensation statute as applied to injuries sustained during or as the result of horseplay, joking, fooling, or the like. 44 A.L.R.6th 545.

Federal Safety Appliance Act, state Workers' Compensation Act as precluding action based on noncompliance with, to recover for death of, or injury to, railroad employee while engaged in intrastate commerce. 98 A.L.R. 511, 104 A.L.R. 839.

Husband or wife of injured employee, compensation act as precluding common-law action by. 104 A.L.R. 346.

Medical or surgical treatment of employee after injury. Workers' Compensation Act as affecting liability of or remedy against employer for injury due to. 127 A.L.R. 1108.

Minor employees, election of remedies by. 14 A.L.R. 818.

Physician rendering services to injured employee, exclusiveness of remedy of, under Workers' Compensation Act, precluding recovery in action on contract. 72 A.L.R. 1016, 143 A.L.R. 1264.

Postaccident conduct by employer, employer's insurer, or employer's employees in relation to workers' compensation claim as waiving, or estopping employer from asserting, exclusivity otherwise afforded by workers' compensation statute. 120 A.L.R.5th 513.

Pre-emption by workers' compensation statute of employee's remedy under state “whistleblower” statute. 20 A.L.R.5th 677.

Third person's negligence, rights and remedies where employee was injured by. 19 A.L.R. 766, 27 A.L.R. 493, 37 A.L.R. 838, 67 A.L.R. 249, 88 A.L.R. 665, 106 A.L.R. 1040.

Workers' Compensation Act as exclusive of remedy by action against employer for injury or disease not compensable under act. 100 A.L.R. 519, 121 A.L.R. 1143.

Workers' Compensation Act as furnishing exclusive remedy for employee injured by product manufactured, sold, or distributed by employer. 9 A.L.R.4th 873.

Workers' compensation as precluding employee's suit against employer for sexual harassment in the workplace. 51 A.L.R.5th 163.

Workers' compensation provision as precluding employee's action against employer for fraud, false imprisonment, defamation, or the like. 46 A.L.R.3d 1279.

50-6-109. Nonperformance of statutory duty not relieved.

Nothing in this chapter shall be construed to relieve any employer or employee from penalty for failure or neglect to perform any statutory duty.

Acts 1919, ch. 123, § 9; Shan. Supp., § 3608a158; Code 1932, § 6860; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-909.

NOTES TO DECISIONS

1. Construction.

The “penalty” referred to in this section is the penalty prescribed in the statute which may have been violated in any given case and does not affect the contractual rights of the parties under the Workers' Compensation Law. Louisville & N. R. Co. v. Nichols, 168 Tenn. 672, 80 S.W.2d 656, 1934 Tenn. LEXIS 98, 98 A.L.R. 508 (1935).

2. Violation of Federal Statute.

Employee of railroad injured in accident in intrastate commerce who had elected to take under Workers' Compensation Law could not sue railroad for damages at common law though injury was due to violation by railroad of federal Safety Appliance Act (45 U.S.C. § 1 et seq.). Louisville & N. R. Co. v. Nichols, 168 Tenn. 672, 80 S.W.2d 656, 1934 Tenn. LEXIS 98, 98 A.L.R. 508 (1935).

Collateral References.

Recovery for discharge from employment in retaliation for filing worker's compensation claim. 32 A.L.R.4th 1221.

Violation of employment rule as barring claim for workers' compensation. 61 A.L.R.5th 375.

50-6-110. Injuries not covered — Drug and alcohol testing.

  1. No compensation shall be allowed for an injury or death due to:
    1. The employee's willful misconduct;
    2. The employee's intentional self-inflicted injury;
    3. The employee's intoxication or illegal drug usage;
    4. The employee's willful failure or refusal to use a safety device;
    5. The employee's willful failure to perform a duty required by law; or
    6. The employee's voluntary participation in recreational, social, athletic or exercise activities, including, but not limited to, athletic events, competitions, parties, picnics, or exercise programs, whether or not the employer pays some or all of the costs of the activities unless:
      1. Participation was expressly or impliedly required by the employer;
      2. Participation produced a direct benefit to the employer beyond improvement in employee health and morale;
      3. Participation was during employee's work hours and was part of the employee's work-related duties; or
      4. The injury occurred due to an unsafe condition during voluntary participation using facilities designated by, furnished by or maintained by the employer on or off the employer's premises and the employer had actual knowledge of the unsafe condition and failed to curtail the activity or program or cure the unsafe condition.
  2. If the employer defends on the ground that the injury arose in any or all of the ways stated in subsection (a), the burden of proof shall be on the employer to establish the defense.
    1. In cases where the employer has implemented a drug-free workplace pursuant to chapter 9 of this title, if the injured employee has, at the time of the injury, a blood alcohol concentration level equal to or greater than eight hundredths of one percent (0.08%) for non-safety sensitive positions, or four hundredths of one percent (0.04%) for safety-sensitive positions, as determined by blood or breath testing, or if the injured employee has a positive confirmation of a drug as defined in § 50-9-103, then it is presumed that the drug or alcohol was the proximate cause of the injury. This presumption may be rebutted by clear and convincing evidence that the drug or alcohol was not the proximate cause of injury. Percent by weight of alcohol in the blood must be based upon grams of alcohol per one hundred milliliters (100 mL) of blood. If the results are positive, the testing facility must maintain the specimen for a minimum of three hundred sixty-five (365) days at minus twenty degrees celsius (-20° C.). Blood serum may be used for testing purposes under this chapter; provided, however, that if this test is used, the presumptions under this section do not arise unless the blood alcohol level is proved to be medically and scientifically equivalent to or greater than the comparable blood alcohol level that would have been obtained if the test were based on percent by weight of alcohol in the blood. However, if, before the accident, the employer had actual knowledge of and acquiesced in the employee's presence at the workplace while under the influence of alcohol or drugs, the employer retains the burden of proof in asserting any defense under subsections (a) and (b), and this subsection (c) does not apply.
    2. If the injured worker refuses to submit to a drug test, it shall be presumed, in the absence of clear and convincing evidence to the contrary, that the proximate cause of the injury was the influence of drugs, as defined in § 50-9-103.
    3. The administrator of the bureau of workers' compensation shall provide, by rule, for the authorization and regulation of drug testing policies, procedures and methods. Testing of injured employees pursuant to a drug-free workplace program under chapter 9 of this title shall not commence until the rules are adopted.

Acts 1919, ch. 123, § 10; Shan. Supp., § 3608a159; Code 1932, § 6861; T.C.A. (orig. ed.), § 50-910; Acts 1994, ch. 765, § 1; 1996, ch. 944, § 49; 1999, ch. 520, § 41; 2005, ch. 390, § 1; 2009, ch. 407, § 1; 2011, ch. 203, §§ 1, 2; 2013, ch. 282, § 1; 2015, ch. 341, § 15.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Amendments. The 2013 amendment, effective July 1, 2014, substituted “administrator of the division of workers' compensation” for “commissioner of labor workforce and development” in (c)(3).

The 2015 amendment substituted “bureau” for “division” in (c)(3).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Cross-References. Waiver of compensation for aggravation of occupational disease, § 50-6-307.

NOTES TO DECISIONS

1. Failure to Rebut Presumption.

Trial court correctly found that an employee failed to rebut by clear and convincing evidence the presumption that the drugs revealed in his drug screen were the proximate cause of his injury because the evidence he submitted consisted entirely of his own testimony; the expert medical witness testified that the results of the drug screen were inconsistent with the employee's version of events because they showed he had taken non-prescribed medications shortly before the accident. Austin v. Roach Sawmill & Lumber Co., — S.W.3d —, 2016 Tenn. LEXIS 748 (Tenn. Oct. 26, 2016), aff'd, — S.W.3d —, 2016 Tenn. LEXIS 747 (Tenn. Oct. 26, 2016).

2. Recreational or Social Activity.

Workers'  Compensation Appeals Board properly reversed the trial court's determination that the claimant's knee injury was compensable as his injury arose from his voluntary participation in a mud run charity event because his participation in the mud run was not required as the individual, who was the primary source of pressure on the claimant to participate, had no supervisory authority over the claimant, and the claimant was not threatened with any adverse employment action if he declined to participate; and the mud run was not work-related as the claimant was not compensated for his time, he was not required to make sales or to network, and his participation in the mud run was a departure from his normal duty of selling cars. Pope v. Nebco of Cleveland, Inc., — S.W.3d —, 2018 Tenn. LEXIS 146 (Tenn. Jan. 16, 2018).

50-6-110. Injuries not covered — Drug and alcohol testing. [Applicable to injuries occurring prior to July 1, 2014.]

  1. No compensation shall be allowed for an injury or death due to:
    1. The employee's willful misconduct;
    2. The employee's intentional self-inflicted injury;
    3. The employee's intoxication or illegal drug usage;
    4. The employee's willful failure or refusal to use a safety device;
    5. The employee's willful failure to perform a duty required by law; or
    6. The employee's voluntary participation in recreational, social, athletic or exercise activities, including, but not limited to, athletic events, competitions, parties, picnics, or exercise programs, whether or not the employer pays some or all of the costs of the activities unless:
      1. Participation was expressly or impliedly required by the employer;
      2. Participation produced a direct benefit to the employer beyond improvement in employee health and morale;
      3. Participation was during employee's work hours and was part of the employee's work-related duties; or
      4. The injury occurred due to an unsafe condition during voluntary participation using facilities designated by, furnished by or maintained by the employer on or off the employer's premises and the employer had actual knowledge of the unsafe condition and failed to curtail the activity or program or cure the unsafe condition.
  2. If the employer defends on the ground that the injury arose in any or all of the ways stated in subsection (a), the burden of proof shall be on the employer to establish the defense.
    1. In cases where the employer has implemented a drug-free workplace pursuant to chapter 9 of this title, if the injured employee has, at the time of the injury, a blood alcohol concentration level equal to or greater than eight hundredths of one percent (0.08%) for non-safety sensitive positions, or four hundredths of one percent (0.04%) for safety-sensitive positions, as determined by blood or breath testing, or if the injured employee has a positive confirmation of a drug as defined in § 50-9-103, then it is presumed that the drug or alcohol was the proximate cause of the injury. This presumption may be rebutted by clear and convincing evidence that the drug or alcohol was not the proximate cause of injury. Percent by weight of alcohol in the blood must be based upon grams of alcohol per one hundred milliliters (100 mL) of blood. If the results are positive, the testing facility must maintain the specimen for a minimum of three hundred sixty-five (365) days at minus twenty degrees celsius (-20° C.). Blood serum may be used for testing purposes under this chapter; provided, however, that if this test is used, the presumptions under this section do not arise unless the blood alcohol level is proved to be medically and scientifically equivalent to or greater than the comparable blood alcohol level that would have been obtained if the test were based on percent by weight of alcohol in the blood. However, if, before the accident, the employer had actual knowledge of and acquiesced in the employee's presence at the workplace while under the influence of alcohol or drugs, the employer retains the burden of proof in asserting any defense under subsections (a) and (b), and this subsection (c) does not apply.
    2. If the injured worker refuses to submit to a drug test, it shall be presumed, in the absence of clear and convincing evidence to the contrary, that the proximate cause of the injury was the influence of drugs, as defined in § 50-9-103.
    3. The commissioner of labor and workforce development shall provide, by rule, for the authorization and regulation of drug testing policies, procedures and methods. Testing of injured employees pursuant to a drug-free workplace program under chapter 9 of this title shall not commence until the rules are adopted.

Acts 1919, ch. 123, § 10; Shan. Supp., § 3608a159; Code 1932, § 6861; T.C.A. (orig. ed.), § 50-910; Acts 1994, ch. 765, § 1; 1996, ch. 944, § 49; 1999, ch. 520, § 41; 2005, ch. 390, § 1; 2009, ch. 407, § 1; 2011, ch. 203, §§ 1, 2.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Cross-References. Waiver of compensation for aggravation of occupational disease, § 50-6-307.

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 25.

Law Reviews.

Workers' Compensation — Nance v. State Industries, Inc.: Tennessee Adopts Affirmative Defense Standard for Willful Failure or Refusal to Use a Safety Appliance, 31 U. Mem. L. Rev. 727 (2001).

Workmen's Compensation — Traveling Employees — Duration and Intoxication as Deviation Factors, 39 Tenn. L. Rev. 755 (1971).

NOTES TO DECISIONS

1. Application.

This section is limited in application to willful failure or refusal. Louisville & N. R. Co. v. Nichols, 168 Tenn. 672, 80 S.W.2d 656, 1934 Tenn. LEXIS 98, 98 A.L.R. 508 (1935).

This section neither provides for nor contemplates a recovery independent of the statute but states and deals with a situation in which the injured party could not recover in any form of action. Louisville & N. R. Co. v. Nichols, 168 Tenn. 672, 80 S.W.2d 656, 1934 Tenn. LEXIS 98, 98 A.L.R. 508 (1935).

The issue of willful misconduct is a question of fact rather than of law. Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959).

Four-step test was used when analyzing an assertion that an employee's claim for workers'  compensation benefits was barred by the employee's willful misconduct or failure to use a safety device, and those steps are: (1) the employee's actual, as opposed to constructive, notice of a safety rule; (2) the employee's understanding of the danger involved in violating the rule; (3) the employer's bona fide enforcement of the rule; and (4) the employee's lack of a valid excuse for violating the rule. Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442, 2012 Tenn. LEXIS 300 (Tenn. May 8, 2012).

2. Burden of Proof.

The burden of proof is on the employer to show that injury was due to willful misconduct or intoxication. Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W.2d 860, 1928 Tenn. LEXIS 119 (1928); Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928); Gentry v. Lilly Co., 225 Tenn. 708, 476 S.W.2d 252, 1971 Tenn. LEXIS 332 (1971); Overall v. Southern Subaru Star, Inc., 545 S.W.2d 1, 1976 Tenn. LEXIS 614 (Tenn. 1976).

Before workers' compensation can be denied for misconduct, it must appear such misconduct, if any, was willful as opposed to inadvertent and the burden of proof is on the employer if he invokes the defense. Hoodenpyle v. Patterson, 197 Tenn. 621, 277 S.W.2d 351, 1955 Tenn. LEXIS 328 (1955).

The employer or insurance carrier raising the question has the burden of proof to show that the injury was due to the willful misconduct of the employee. Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959).

In view of this section and § 50-6-116, the employer and its carrier carry the burden of proof that actions or conduct of an employee constitute intentional self-infliction or misconduct sufficiently willful to bar compensation. Wheeler v. Glens Falls Ins. Co., 513 S.W.2d 179, 1974 Tenn. LEXIS 461 (Tenn. 1974).

In order to invoke this section as a defense to a work-related injury or death due to the employee's intoxication, the employer has the burden of establishing proximate cause. Overall v. Southern Subaru Star, Inc., 545 S.W.2d 1, 1976 Tenn. LEXIS 614 (Tenn. 1976).

In the absence of any evidence in the record that decedent willfully violated any order, notice, rule, regulation or prohibition of any kind, defendant employer had not met its burden of proof, and its defense of “willful misconduct” or “willful failure or refusal to use a safety appliance” failed. Wright v. Gunther Nash Mining Constr. Co., 614 S.W.2d 796, 1981 Tenn. LEXIS 434 (Tenn. 1981).

3. Willful Misconduct — Facts Constituting.

However careless, and even reckless, the conduct of the employee may have been in subjecting himself unnecessarily to danger, if not willful and intentional, it will not bar a recovery. Moore v. Cincinnati, N. O. & T. P. R. Co., 148 Tenn. 561, 256 S.W. 876, 1923 Tenn. LEXIS 43 (1923), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

“Willfully” means intentionally, that is, the person doing the act intended at the time to perform that act. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

Where death was due to employee's continuous and steadfast refusal to accept any medical services, there is willful misconduct barring recovery by deceased's widow and minor dependents. Hughes v. Elliott, 162 Tenn. 188, 35 S.W.2d 387, 1930 Tenn. LEXIS 78 (1931).

Willful misconduct within the meaning of this section means something more than mere negligence and carries the idea of deliberation and intentional wrongdoing. Glass v. Sullivan, 170 Tenn. 230, 94 S.W.2d 381, 1936 Tenn. LEXIS 6 (1936).

Willful misconduct connotes intentional misconduct and purposeful violation of established rules of safety and orders for protection from danger. Brown v. Birmingham Nurseries, 173 Tenn. 343, 117 S.W.2d 739, 1937 Tenn. LEXIS 31 (1938).

Where an employee with full knowledge of the danger involved and a familiarity with the safety rules disregards such rules and is injured, his conduct is willful within the meaning of the statute and no recovery can be had. Cordell v. Kentucky-Tennessee Light & Power Co., 173 Tenn. 596, 121 S.W.2d 970, 1938 Tenn. LEXIS 46 (1938).

Not only does “willful misconduct” connote intentional, purposeful violation of orders, but also an element of perverseness. American Mut. Liability Ins. Co. v. Garth, 174 Tenn. 297, 125 S.W.2d 140, 1938 Tenn. LEXIS 92 (1939); Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959).

Where employee was shot and killed by fellow servant after he made an unprovoked attack on such fellow servant in an encounter which was personal between the parties, homicide did not arise out of and in course of employment and employee was guilty of willful misconduct. Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897, 1957 Tenn. LEXIS 330 (1957).

Employee injured as a result of his placing open flame near can of gasoline at his place of employment after working hours in the presence of his girl friend, the employer's sales supervisor and the supervisor's wife after having been warned by the supervisor not to do so was not entitled to compensation. Webster v. Seven-Up Bottling Co., 211 Tenn. 8, 362 S.W.2d 244, 1962 Tenn. LEXIS 332 (1962).

Where defendant was injured when he punched or goosed a fellow employee in his ribs for no reason but to see his reaction therefrom and within five minutes after having been ordered not to do so, this was considered willful misconduct. Insurance Co. of America v. Hogsett, 486 S.W.2d 730, 1972 Tenn. LEXIS 330 (Tenn. 1972).

The statutory “willful misconduct” defense, whatever its actual general definition, has in practical application been largely limited to the deliberate and intentional violation of known regulations designed to preserve the employee from serious bodily harm. Wright v. Gunther Nash Mining Constr. Co., 614 S.W.2d 796, 1981 Tenn. LEXIS 434 (Tenn. 1981).

The term “willful” as used in T.C.A. § 50-6-110 is not defined in the code. Wright v. Gunther Nash Mining Constr. Co., 614 S.W.2d 796, 1981 Tenn. LEXIS 434 (Tenn. 1981).

Employee who was in violation of store's safety rules by engaging in intentional horseplay, which was the proximate cause of the employee's injury and which constituted willful misconduct under T.C.A. § 50-6-110(a), was barred from receiving workers' compensation benefits. Rogers v. Kroger Co., 832 S.W.2d 538, 1992 Tenn. LEXIS 409 (Tenn. 1992).

Award of workers'  compensation benefits to an employee who was injured when the employee came in contact with an electrical wire while working as a lineman was barred due to the employee's failure to use a safety device because: (1) the employee had actual, not merely constructive, notice of the employer's rule requiring the employee to wear safety gloves; (2) the employee understood the danger involved in violating the rule; (3) the employee admitted the employer consistently enforced the rule; and (4) the employee had no valid excuse for violating the rule, as the employee's concern that the employee would damage the gloves was not such an excuse, since the employer would immediately replace the gloves at no cost to the employee, nor was the fact that the gloves made the employee's job more difficult, and the employee's failure to use the gloves proximately caused the employee's injury, so the employee's violation was willful, not merely negligent or reckless. Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442, 2012 Tenn. LEXIS 300 (Tenn. May 8, 2012).

Award of workers'  compensation benefits to an employee who was injured when the employee came in contact with an electrical wire while working as a lineman was barred due to willful misconduct because: (1) the employee had actual, not merely constructive, notice of the employer's rule requiring the employee to wear safety gloves, (2) the employee understood the danger involved in violating the rule; (3) the employee admitted the employer consistently enforced the rule; and (4) the employee had no valid excuse for violating the rule, as the employee's concern that the employee would damage the gloves was not such an excuse, since the employer would immediately replace the gloves at no cost to the employee, nor was the fact that the gloves made the employee's job more difficult, and the employee's failure to use the gloves proximately caused the employee's injury, so the employee's violation was willful, not merely negligent or reckless. Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442, 2012 Tenn. LEXIS 300 (Tenn. May 8, 2012).

4. Willful Misconduct — Facts Not Constituting.

Employee's crawling under train to go to his home where there was a safe alternative way was not willful misconduct. Moore v. Cincinnati, N. O. & T. P. R. Co., 148 Tenn. 561, 256 S.W. 876, 1923 Tenn. LEXIS 43 (1923), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Operating a motor truck without license required by city ordinance is not willful misconduct. Bohlen-Huse Coal & Ice Co. v. McDaniel, 148 Tenn. 628, 257 S.W. 848, 1923 Tenn. LEXIS 48 (1924).

Use of gloves with loose and flabby cuffs in operating gin saws is not willful misconduct. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

A mere disregard, not willful or deliberate, is not willful misconduct where it is a thoughtless act on the spur of the moment. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924).

Death from gas explosion when miner entered room with open lamp with the permission of his foreman was not due to willful misconduct precluding recovery, though he and foreman had found the room unsafe by test about three hours previous. Mullins v. Tennessee Stave & Lumber Co., 155 Tenn. 132, 290 S.W. 975, 1926 Tenn. LEXIS 27 (1927).

Refusal of widow to consent to an autopsy on demand of interested party is not willful misconduct. Lenoir Car Works v. Hill, 163 Tenn. 578, 44 S.W.2d 321, 1931 Tenn. LEXIS 151 (1931).

In compensation proceedings for death of automobile driver which occurred while he was driving the automobile of his employer in another state at a speed of 50 miles per hour when the speed limit was 40 miles per hour, the fact that the driver was driving in excess of the statutory limit did not amount to willful misconduct in absence of evidence that he was aware of the speed limit in such state. Southern Motor Car Co. v. Patterson, 168 Tenn. 252, 77 S.W.2d 446, 1934 Tenn. LEXIS 47 (1935).

Where employee who had gone without sleep for 36 hours and was apparently very tired turned operation of employer's truck over to a third party against employer's orders but where such third person was an expert driver and the employee sat in the seat alongside, the employee was not guilty of willful misconduct within the meaning of this section so as to bar recovery where the steering gear of the truck locked so that the truck left the road, overturned, caught fire and burned the employee fatally. Glass v. Sullivan, 170 Tenn. 230, 94 S.W.2d 381, 1936 Tenn. LEXIS 6 (1936).

In suit by municipal employee against the municipality for compensation under the Workers' Compensation Law, the fact that petitioner was violating a municipal ordinance by fast driving was not such willful misconduct as would bar recovery under the act. Shelbyville v. Hamilton, 170 Tenn. 297, 95 S.W.2d 43, 1935 Tenn. LEXIS 136 (1936).

Where an employee engaged in cleaning ashes out of the combustion chamber of large boiler entered such chamber to facilitate his work despite orders by his superior and as a result was fatally burned and where the facts justified the conclusion that he acted impulsively rather than deliberately in committing an error of judgment in what he regarded as the demanded interest of his employer while having in mind the result desired to be accomplished and believing that he was proceeding safely, the acts of such employee did not constitute “willful misconduct” so as to bar recovery of compensation. American Mut. Liability Ins. Co. v. Garth, 174 Tenn. 297, 125 S.W.2d 140, 1938 Tenn. LEXIS 92 (1939).

Where a motorcycle messenger was proceeding south at a speed of 20 or 30 miles per hour behind a line of cars on the right side of the street in a drizzling rain when he struck a car which was turning right after coming from the south, such messenger might have been guilty of negligence but his conduct was not such as to bar recovery under the statute as amounting to willful misconduct. W. C. Sharp Drug Stores v. Hansard, 176 Tenn. 595, 144 S.W.2d 777, 1940 Tenn. LEXIS 106 (1940).

Employee was not barred from compensation on the ground of willful injury merely because he was scuffling with other employees while riding home from work in employer's truck. Taylor v. Meeks, 191 Tenn. 695, 236 S.W.2d 969, 1951 Tenn. LEXIS 372 (1951).

Inadvertence, mistake of judgment, negligence or even gross negligence does not constitute willful misconduct. Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959).

Where record showed that physician prescribed diet, rest and the use of certain medications, advised against the use of alcohol and warned against strenuous exercise, but did not specifically forbid employee to continue his work as a trim carpenter or inform him that he was placing himself in imminent peril by doing so, employee who continued to work but who otherwise followed physician's orders was not guilty of willful misconduct even though his death was due to aggravation of his preexisting heart condition as a result of his work. Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959).

Truck driver injured during “horseplay” initiated by himself while awaiting assignment in accordance with employer's instructions was entitled to compensation. Ransom v. H. G. Hill Co., 205 Tenn. 377, 326 S.W.2d 659, 1959 Tenn. LEXIS 374 (1959).

Where an employee, with a five-year history of alcoholism and related diseases including pancreatitis and cirrhosis of the liver, while on duty as a policeman, fell on an icy street which aggravated degenerative arthritis in his neck and back, causing extreme pain and preventing him from working, and he then began drinking more heavily until six months later, after acute delirium tremens, a marked liver enlargement and a collapse, he was admitted to the hospital in a comatose state and died of acute necrotizing pancreatitis contributed to by bilateral lobular pneumonia and cirrhosis, the court held that his fall, which occurred in the course of his employment, was the proximate cause of his death, that he was not guilty of willful misconduct or intentional self-inflicted injury as defined by this section, and that his survivor was entitled to recover full compensation for his injury and death. Wheeler v. Glens Falls Ins. Co., 513 S.W.2d 179, 1974 Tenn. LEXIS 461 (Tenn. 1974).

When an employee is performing the duties assigned to him by his employment contract and is acting in furtherance of his employer's interests, regardless of the fact that he performs those duties in an unnecessarily dangerous or rash manner, it cannot be said that his resulting injuries did not arise out of his employment, provided that his conduct could be reasonably contemplated. Wright v. Gunther Nash Mining Constr. Co., 614 S.W.2d 796, 1981 Tenn. LEXIS 434 (Tenn. 1981).

Disobedience of a rule is not willful misconduct where the rule is habitually disregarded with the knowledge and acquiescence of the employer; the employer has waived the so-called “rule” and is estopped to invoke it against the misled employee. Bryan v. Paramount Packaging Corp., 677 S.W.2d 453, 1984 Tenn. LEXIS 852 (Tenn. 1984).

It takes more than a mere inference of tortious intent to convert an employer's negligence into an intentional tort. King v. Ross Coal Co., 684 S.W.2d 617, 1984 Tenn. App. LEXIS 2992 (Tenn. Ct. App. 1984).

Allegations which establish gross or criminal negligence fall short of alleging actual intent to injure; there is a distinct difference in fact and law between gross or criminal negligence and actual intent to injure. King v. Ross Coal Co., 684 S.W.2d 617, 1984 Tenn. App. LEXIS 2992 (Tenn. Ct. App. 1984).

Driving in excess of the speed limit is not willful misconduct per se. Loy v. North Bros. Co., 787 S.W.2d 916, 1990 Tenn. LEXIS 159 (Tenn. 1990).

5. Violation of Rule or Instruction.

A laundry employee injured while pressing a skirt for a fellow employee on a day of the week when individual laundering was forbidden and after regular work hours was not in course of employment. Hinton Laundry Co. v. De Lozier, 143 Tenn. 399, 225 S.W. 1037, 1920 Tenn. LEXIS 27, 16 A.L.R. 1361 (1920).

Injury to ore shoveler when he was voluntarily and against positive instructions loosening supporting chain of swinging floor doors of freight car is not compensable in view of this section as to willful and intentional injuries and § 50-6-102. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924).

If a workman is acting within the scope of his employment, a mere disregard of an order does not become willful misconduct unless the disobedience be in fact willful or deliberate, and not merely a thoughtless act on the spur of the moment. Kingsport Foundry & Machine Works, Inc. v. Sheffey, 156 Tenn. 150, 299 S.W. 787, 1927 Tenn. LEXIS 97 (1927).

Employee's use of emery wheel in smoothing casting contrary to previous instructions not to use wheel did not constitute willful disobedience where order was made because wheel was considered not effective rather than because it was considered dangerous and employee used it to hasten the work in compliance with employer's wishes, the order as to the wheel dealing with conduct within sphere of employment rather than limiting such sphere. Kingsport Foundry & Machine Works, Inc. v. Sheffey, 156 Tenn. 150, 299 S.W. 787, 1927 Tenn. LEXIS 97 (1927).

Failure of employee to observe rule requiring wearing of rubber gloves in handling electric wires because he reasonably supposed from conduct and statements of a fellow worker that the wires with which he was working were dead held not a willful disregard of the rule nor action upon his own judgment. Knoxville Power & Light Co. v. Barnes, 156 Tenn. 184, 299 S.W. 772, 1927 Tenn. LEXIS 101 (1927), overruled, Standard Glass Co. v. Wallace, 189 Tenn. 213, 225 S.W.2d 35, 1949 Tenn. LEXIS 417 (1949), overruled in part, Standard Glass Co. v. Wallace, 189 Tenn. 213, 225 S.W.2d 35, 1949 Tenn. LEXIS 417 (1949).

Fact that employee, whose duties were to accompany and care for carload of poultry while in transit, was found dead outside of the car, with feet mangled, does not establish a departure from his employment in the sense of the act. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928).

A miner, disregarding a positive instruction not to work under a dangerous impending rock, is guilty of deliberate and willful misconduct. Collins v. Brier Hill Collieries, 158 Tenn. 317, 13 S.W.2d 332, 1928 Tenn. LEXIS 155 (1929).

Death of night watchman of ice company from electric shock was not compensable where manner of contact with current was unknown but it appeared likely that he could have come into contact therewith only by climbing up transformer tower to height of 10 feet, where the duties of his employment did not require him to be, general instructions of company to employees being to avoid machinery and electrical apparatus in the plant. Home Ice Co. v. Franzini, 161 Tenn. 395, 32 S.W.2d 1032, 1930 Tenn. LEXIS 18 (1930).

It is not every disobedience of orders which constitutes willful misconduct barring compensation under this section. Kennedy v. Columbian Casualty Co., 163 Tenn. 312, 43 S.W.2d 201, 1931 Tenn. LEXIS 118 (1931); American Mut. Liability Ins. Co. v. Garth, 174 Tenn. 297, 125 S.W.2d 140, 1938 Tenn. LEXIS 92 (1939).

As the employer is entitled to protection from liability where the employee willfully refuses to observe reasonable rules and obey orders against dangerous practices, such conduct by the employee must be held to be willful misconduct within the meaning of the statute. Brown v. Birmingham Nurseries, 173 Tenn. 343, 117 S.W.2d 739, 1937 Tenn. LEXIS 31 (1938).

An employee whose legs were crushed between employer's truck and a bridge while riding on the truck in an obviously dangerous position with his legs hanging over the side of the truck in violation of orders and warnings by the employer was guilty of willful misconduct within the meaning of this section and was not entitled to compensation. Brown v. Birmingham Nurseries, 173 Tenn. 343, 117 S.W.2d 739, 1937 Tenn. LEXIS 31 (1938).

Where claimant's husband was killed by dangerous rock condition in mine after warnings by foreman to avoid working in the area, without proof that he was working there when killed after directions to get tools and go home, the trial judge could decide as a matter of fact that elements of willful misconduct do not appear and there is evidence of no such conduct. Hoodenpyle v. Patterson, 197 Tenn. 621, 277 S.W.2d 351, 1955 Tenn. LEXIS 328 (1955).

6. Failure to Use Appliances or Safety Devices.

Where a shopman failed to wear goggles furnished him as required by posted safety rule which he neglected to read, if such employee was not instructed as to the application of the rule to his task, there was not a willful failure to use the appliance. But in later case such failure barred recovery where employee knew of the rule, and the failure to use involved both intent and deliberation. Nashville, C. & S. L. R. Co. v. Wright, 147 Tenn. 619, 250 S.W. 903, 1922 Tenn. LEXIS 68 (1923); Nashville, C. & St. L. Ry. v. Coleman, 151 Tenn. 443, 269 S.W. 919, 1924 Tenn. LEXIS 77 (1924).

Where employee's failure to use appliances and his wearing a certain type of glove were at most only negligence, recovery cannot be denied on the ground that the injury was due to the employee's willful failure or refusal to use safety appliances or was intentionally self-inflicted, negligence not being the equivalent of willfulness. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

An employee cannot be excused for failure to use a safety appliance at hand, when the nature of his work demands the use of such appliance and he knows it, even though such use of such appliance has not been required by any rule of the employer. Nashville, C. & St. L. Ry. v. Coleman, 151 Tenn. 443, 269 S.W. 919, 1924 Tenn. LEXIS 77 (1924).

Willful refusal of employee to use safety appliance is not shown by fact that automatic switch on motor operating wheel, bursting of which caused the injury, which switch would cut off the current when overloaded, was tied so it could not operate, it not appearing that employee tied or knew of tying of switch or that accident occurred from cause which switch would have prevented. Kingsport Foundry & Machine Works, Inc. v. Sheffey, 156 Tenn. 150, 299 S.W. 787, 1927 Tenn. LEXIS 97 (1927).

Where an experienced lineman who was fatally injured as a result of a fall from an electric pole after touching an electric wire carrying a high voltage was not using the safety devices supplied by the company, although he had been repeatedly warned to observe the safety rules of the company and his failure to use the safety devices had been recently called to his attention, and where the evidence was to the effect his injury resulted from his failure to observe the safety rules and use the safety devices supplied him, such employee was guilty of willful misconduct within the meaning of this section so as to bar recovery. Cordell v. Kentucky-Tennessee Light & Power Co., 173 Tenn. 596, 121 S.W.2d 970, 1938 Tenn. LEXIS 46 (1938).

To establish a defense of willful failure or refusal to use a safety appliance, the employer must prove that: (1) At the time of the injury the employer had in effect a policy requiring the employee's use of a particular safety appliance; (2) The employer carried out strict, continuous and bona fide enforcement of the policy; (3) The employee had actual knowledge of the policy, including a knowledge of the danger involved in its violation, through training provided by the employer; and (4) The employee willfully and intentionally failed or refused to follow the established policy requiring use of the safety appliance. Nance v. State Indus., Inc., 33 S.W.3d 222, 2000 Tenn. LEXIS 720 (Tenn. Special Workers' Comp. App. Panel 2000), aff'd, 2000 Tenn. LEXIS 721 (Tenn. Special Workers' Comp. App. Panel Dec. 27, 2000).

7. Emergency.

An employee acting in the master's interest when an emergency arises should not be charged with willful misconduct in disobedience of orders although the thing he did was a thing forbidden when no emergency existed. Johnson v. Copeland, 178 Tenn. 431, 158 S.W.2d 986, 1941 Tenn. LEXIS 74 (1942).

Where evidence was to the effect that deceased worker met his death as a result of burns sustained when he entered the boiler room of his employer's dry cleaning plant while wearing clothes saturated with inflammable cleaning fluid to put out a fire that occurred there, such employee was acting in his employer's interest in an emergency and was not guilty of willful misconduct so as to bar recovery, even though he had been expressly forbidden to enter the boiler room while wearing such clothes. Johnson v. Copeland, 178 Tenn. 431, 158 S.W.2d 986, 1941 Tenn. LEXIS 74 (1942).

8. Intoxication.

In absence of proof of details of motor vehicle accident which occurred when employee was returning in employer's truck from servicing equipment of employer's customers, evidence that alcohol content in employee's blood was sufficient in itself to show intoxication was not sufficient to establish that intoxication was cause of accident so as to preclude recovery of benefits for death of employee arising out of accident. Gentry v. Lilly Co., 225 Tenn. 708, 476 S.W.2d 252, 1971 Tenn. LEXIS 332 (1971).

Evidence did not preponderate against trial court's finding that employee's injury was “due to intoxication.” Dobbs v. Liberty Mut. Ins. Co., 811 S.W.2d 75, 1991 Tenn. LEXIS 182 (Tenn. 1991).

9. Sufficiency of the Evidence.

In suit to recover workers' compensation death benefits with regard to employee who was killed in a vehicular collision, where a blood test showed that employee's blood contained ethyl alcohol in the amount of 0.10 percent, but where there was no direct proof that intoxication was the proximate cause of the accident, employer failed to carry its burden of proof that employee's death was brought about by his voluntary intoxication. Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858, 1976 Tenn. LEXIS 587 (Tenn. 1976).

Where there was material evidence from which the trial court might have found that the deceased's death was proximately caused by either his own intoxication or by dangerous highway conditions, the trial court's finding that death was due to intoxication will not be overturned. Overall v. Southern Subaru Star, Inc., 545 S.W.2d 1, 1976 Tenn. LEXIS 614 (Tenn. 1976).

10. Tort Law.

Although concepts of tort law such as the “rescue” doctrine applicable to negligence cases may be helpful, they are not controlling in the workers' compensation field. Hall v. Mason Dixon Lines, Inc., 743 S.W.2d 148, 1987 Tenn. LEXIS 1035 (Tenn. 1987).

Collateral References.

“Culpable negligence” or negligence other than “willful” or “serious and willful misconduct” within provision of Workers' Compensation Act precluding compensation. 149 A.L.R. 1004.

Effect of employee's intoxication. 43 A.L.R. 421.

Employee's insubordination as barring unemployment compensation. 26 A.L.R.3d 1333, 20 A.L.R.4th 637.

Injury received while doing prohibited act. 23 A.L.R. 1161.

Necessity and sufficiency of evidence that disease contracted by applicant for compensation is attributable to his employment. 20 A.L.R. 26, 73 A.L.R. 488.

Neglect or improper self-treatment as affecting right to or amount of compensation. 54 A.L.R. 637.

Recovery of compensation for injury or death to which pre-existing physical description contributes. 19 A.L.R. 106, 28 A.L.R. 204, 60 A.L.R. 1299.

Safety appliances, failure to use, as serious and willful misconduct. 4 A.L.R. 116, 9 A.L.R. 1377, 23 A.L.R. 1161, 26 A.L.R. 166, 58 A.L.R. 197, 83 A.L.R. 1211, 119 A.L.R. 1409.

Serious and willful misconduct of employee as bar to compensation. 4 A.L.R. 116.

Suicide as compensable under Workers' Compensation Law. 15 A.L.R.3d 616.

Violation of employment rule as barring claim for workers' compensation. 61 A.L.R.5th 375.

What conduct is willful, intentional, or deliberate within Workers' Compensation Act provision authorizing tort action for such conduct. 96 A.L.R.3d 1064.

50-6-111. Defenses not available to employer failing to secure payment of compensation. [Applicable to injuries occurring prior to July 1, 2014.]

No employer who fails to secure payment of compensation as required by this chapter, shall, in any suit brought against the employer by an employee covered by this chapter or by the dependent or dependents of the employee, to recover damages for personal injury or death arising from an accident, be permitted to defend the suit upon any of the following grounds:

  1. The employee was negligent;
  2. The injury was caused by the negligence of a fellow servant or fellow employee; or
  3. The employee had assumed the risk of the injury.

Acts 1919, ch. 123, § 11; Shan. Supp., § 3608a160; Code 1932, § 6862; Acts 1973, ch. 379, § 2; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-911.

Compiler's Notes. Acts 2013, ch. 289, § 14, effective July 1, 2014, amends  § 50-6-111 by deleting it in its entirety.  However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law.  Thus, this section remains in effect as to injuries occurring prior to July 1, 2014. See § 50-6-108(b) for similar provisions under law applicable to injuries occurring on or after July 1, 2014.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-8.03.22.

Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, §§ 23, 27, 33; 26 Tenn. Juris., Workers' Compensation, § 5.

Law Reviews.

Torts — Employer's Duty to Disclose Employee's Illness, 25 Tenn. L. Rev. 520 (1958).

NOTES TO DECISIONS

1. Validity of Section.

This section is not coercive, because it deprives the employer of some of his common law defenses, for the general assembly has the power to abolish such common law defenses. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

2. Employer Not under Statute — Rights of Employee.

The employee of one not operating under this law is entitled to damages only if his injury was proximately caused by some act or omission on the part of the employer or his agents amounting to negligence or want of reasonable care. Moore Coal Co. v. Brown, 166 Tenn. 516, 64 S.W.2d 3, 1933 Tenn. LEXIS 109 (1933); Duncan v. Dickie Rector Lumber Co., 31 Tenn. App. 155, 212 S.W.2d 908, 1948 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1948).

3. Defenses of Which Noncomplying Employer Deprived.

If an employer fails to comply with the Workers' Compensation Law, he is deprived of the common law defenses of assumption of risk and contributory negligence, and the defense that the injury was due to the negligence of a fellow servant. Moore Coal Co. v. Brown, 166 Tenn. 516, 64 S.W.2d 3, 1933 Tenn. LEXIS 109 (1933); Shoaf v. Fitzpatrick, 104 F.2d 290, 1939 U.S. App. LEXIS 4129 (6th Cir. Tenn. 1939), cert. denied, 308 U.S. 620, 60 S. Ct. 295, 84 L. Ed. 518, 1939 U.S. LEXIS 29 (Tenn. Dec. 11, 1939); Schroader v. Rural Educational Ass'n, 33 Tenn. App. 36, 228 S.W.2d 491, 1950 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1950).

Where defendant lessee of mining property was under duty to furnish props for use in mine and there was no evidence of negligence on part of codefendant who operated mine for defendant, and where defendants had not complied with Workers' Compensation Law or laws relative to mining, and employee working in mine was injured as result or failure to furnish props, judgment against defendant alone was sustained irrespective of whether codefendant was a servant or independent contractor, and even though it was contended that the injury was the result of the employee's negligence. Layne v. Campbell, 31 Tenn. App. 651, 219 S.W.2d 917, 1949 Tenn. App. LEXIS 76 (Tenn. Ct. App. 1949).

4. Facts Negativing Employer's Liability.

Although assumption of risk could not be relied upon as an affirmative defense in case involving injury of employee where employer had elected not to come under Workers' Compensation Law, the fact of superior knowledge on the part of employee of the particular circumstances existing at the time of injury and his control over the instrumentality causing injury would serve to negative the liability of employer. Duncan v. Dickie Rector Lumber Co., 31 Tenn. App. 155, 212 S.W.2d 908, 1948 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1948).

Collateral References.

Right to maintain action against fellow employee for injury or death covered by workers' compensation. 21 A.L.R.3d 845, 57 A.L.R.4th 888.

Work-connected inefficiency or negligence as “misconduct” barring unemployment compensation. 26 A.L.R.3d 1356.

Workers' compensation: law enforcement officer's recovery for injury sustained during exercise or physical recreation activities. 44 A.L.R.5th 569.

50-6-112. Actions against third persons — Attorney's fees — Distribution of recovery — Limitations period.

  1. When the injury or death for which compensation is payable under this chapter was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured worker, or the injured worker's dependents, shall have the right to take compensation under this chapter, and the injured worker, or those to whom the injured worker's right of action survives at law, may pursue the injured worker's or their remedy by proper action in a court of competent jurisdiction against the other person.
  2. In the event of a recovery from the other person by the worker, or those to whom the worker's right of action survives, by judgment, settlement or otherwise, the attorney representing the injured worker, or those to whom the injured worker's right of action survives, and effecting the recovery, shall be entitled to a reasonable fee for the attorney's services, and the attorney shall have a first lien for the fees against the recovery; provided, that if the employer has engaged other counsel to represent the employer in effecting recovery against the other person, then a court of competent jurisdiction shall, upon application, apportion the reasonable fee between the attorney for the worker and the attorney for the employer, in proportion to the services rendered.
    1. In the event of a recovery against the third person by the worker, or by those to whom the worker's right of action survives, by judgment, settlement or otherwise, and the employer's maximum liability for workers' compensation under this chapter has been fully or partially paid and discharged, the employer shall have a subrogation lien against the recovery, and the employer may intervene in any action to protect and enforce the lien.
    2. In the event the net recovery by the worker, or by those to whom the worker's right of action survives, exceeds the amount paid by the employer, and the employer has not, at the time, paid and discharged the employer's full maximum liability for workers' compensation under this chapter, the employer shall be entitled to a credit on the employer's future liability, as it accrues, to the extent the net recovery collected exceeds the amount paid by the employer.
    3. In the event the worker, or those to whom the worker's right of action survives, effects a recovery, and collection of that recovery, from the other person, by judgment, settlement or otherwise, without intervention by the employer, the employer shall nevertheless be entitled to a credit on the employer's future liability for workers' compensation, as it accrues under this chapter, to the extent of the net recovery.
    1. The action against the other person by the injured worker, or those to whom the injured worker's right of action survives, must be instituted in all cases within one (1) year from the date of injury.
    2. Failure on the part of the injured worker, or those to whom the injured worker's right of action survives, to bring the action within the one-year period shall operate as an assignment to the employer of any cause of action in tort that the worker, or those to whom the worker's right of action survives, may have against any other person for the injury or death, and the employer may enforce the cause of action in the employer's own name or in the name of the worker, or those to whom the worker's right of action survives, for the employer's benefit, as the employer's interest may appear, and the employer shall have six (6) months after the assignment within which to commence the suit.
    3. If the cause of action described in subsection (a) arises in a jurisdiction other than this state and the other jurisdiction has a statute of limitations for personal injury and wrongful death greater than the one-year statute of limitations provided in this state, the court hearing the cause of action shall apply the statute of limitations that provides the injured worker, or those to whom the injured worker's right of action survives, the greatest amount of time in which to institute an action.
    4. Under no circumstances shall the negligent party described in subsection (a) benefit from this subsection (d).

Acts 1919, ch. 123, § 14; Shan. Supp., § 3608a163; Code 1932, § 6865; Acts 1949, ch. 277, § 1; C. Supp. 1950, § 6865; Acts 1963, ch. 333, § 1; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-914; Acts 1985, ch. 393, § 2.

Textbooks. Tennessee Jurisprudence, 23 Tenn. Juris., Subrogation, § 4; 26 Tenn. Juris., Workers' Compensation, §§ 34, 48-56.

Law Reviews.

Comparative Fault in Tennessee: Where Are We Going and Why Are We in this Handbasket?, 67 Tenn. L. Rev. 765 (2000).

Employer not liable for manager's egregious misconduct (Timothy S. Bland and Licia M. Williams), 37 No. 10 Tenn. B.J. 17 (2001).

Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee (Carol A. Mutter), 57 Tenn. L. Rev. 199 (1990).

Subrogation of Future Medical Payments (John A. Day), 36 No. 8 Tenn. B.J. 33 (2000).

The OSHA Hazard Communication Standard (Gary C. Shockley), 25 No. 5 Tenn. B.J. 22 (1989).

Attorney General Opinions. Constitutionality of using presumptions to determine reasonableness of case management costs, OAG 98-084 (4/14/98).

NOTES TO DECISIONS

1. Constitutionality.

Fact that suit by workers' compensation recipient against manufacturers and supplier of equipment for personal injuries sustained from explosion of equipment during course of employment was governed by limitation of this section, rather than applicable general limitation of § 28-3-104, did not constitute unlawful discrimination prohibited by Tenn. Const., art. XI, § 8 or equal protection clause of U.S. Const., amend. 14. Dobbins v. Terrazzo Machine & Supply Co., 479 S.W.2d 806, 1972 Tenn. LEXIS 401 (Tenn. 1972).

2. Purpose and Effect of 1949 Amendment.

The 1949 amendment was undoubtedly enacted for the purpose of changing the statute as it then stood by: (1) allowing the injured parties to receive from the employer the amount awarded by the statute; and (2) at the same time assert his claim against the third party as an alleged wrongdoer for the full measure of damages suffered with (3) the employer having a lien upon the recovery or settlement to the extent of the amount paid by such employer to the employee or his dependents under the provisions of the Workers' Compensation Law; and (4) if the employee or his dependents had not asserted claim against the third party within one year, then, by way of subrogation the right is given to the employer to recover from such third party damages in an amount not to exceed the amount paid or payable by that employer to its employee, or dependents. Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954).

3. Construction and Interpretation.

This section is not a “real party in interest” statute. Kimbrell v. United States, 306 F.2d 98, 1962 U.S. App. LEXIS 4475 (6th Cir. Tenn. 1962).

Workers' compensation is the exclusive remedy except where the injury is caused by a third party. McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240, 1977 Tenn. LEXIS 535 (Tenn. 1977).

Nothing in this section may be construed to evince a legislative intent that an employer may ever be classified as a third person without doing violence to the plain language which permits common-law suits against “some person other than an employer.” McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240, 1977 Tenn. LEXIS 535 (Tenn. 1977).

The Products Liability Act, specifically T.C.A. § 29-28-103, does not in any sense repeal, revive or amend T.C.A. § 50-6-112. Hawkins v. D & J Press Co., 527 F. Supp. 386, 1981 U.S. Dist. LEXIS 16194 (E.D. Tenn. 1981).

The general assembly employed the singular form of “person” in referring to a tortious third party knowing that one or multiple suits could be filed by the employee against alleged tort-feasors. Plough, Inc. v. Premier Pneumatics, Inc., 660 S.W.2d 495, 1983 Tenn. App. LEXIS 619 (Tenn. Ct. App. 1983).

The action against third persons contemplated, and provided for, by T.C.A. § 50-6-112 is in tort and includes all types of relations creating the duty of the tort-feasor, such as automobile and general negligence cases, products liability cases, medical malpractice cases and federal tort claims act cases. Plough, Inc. v. Premier Pneumatics, Inc., 660 S.W.2d 495, 1983 Tenn. App. LEXIS 619 (Tenn. Ct. App. 1983).

T.C.A. § 50-6-112 is clear and unambiguous that for a period of one year from the date that the cause of action accrues, the employee or those to whom his right of action survives, can institute suit against allegedly liable third parties, and at the expiration of the one year, the claim of the employee is assigned to the employer. Craig v. R.R. Street & Co., 794 S.W.2d 351, 1990 Tenn. App. LEXIS 12 (Tenn. Ct. App. 1990).

“Employer” refers to any party who may be liable for workers' compensation benefits pursuant to T.C.A. § 50-6-113(a). Campbell v. Dick Broadcasting Co., 883 S.W.2d 604, 1994 Tenn. LEXIS 254 (Tenn. 1994).

The “credit on the employer's future liability” as used in T.C.A. § 50-6-112(c)(2) and (3) does not encompass future medical payments when the parties have settled the case for a lump sum award. Graves v. Cocke County, 24 S.W.3d 285, 2000 Tenn. LEXIS 369 (Tenn. 2000).

4. Suit Against Fellow Employee.

Under provisions of this section limiting action by employee for injuries to “some person other than employer” and giving right of subrogation to employer and his insurance carrier, employee could not hold fellow employee liable for injuries resulting from automobile accident which occurred while both were acting in concert within scope and course of their employment and while plaintiff was a guest passenger in automobile operated by defendant. Majors v. Moneymaker, 196 Tenn. 698, 270 S.W.2d 328, 1954 Tenn. LEXIS 441 (1954).

Co-employee causing injury to fellow employee while acting in course of employment was not a third person who might be sued under this section. Sturkie v. Bottoms, 203 Tenn. 237, 310 S.W.2d 451, 1958 Tenn. LEXIS 295 (1958).

Where injured employee sued co-employee for damages in common law action and thereafter dismissed suit after receiving $3,500 from co-employee under covenant not to sue, employer was entitled to credit for such sum received by the injured employee in workers' compensation proceedings against employer. Sturkie v. Bottoms, 203 Tenn. 237, 310 S.W.2d 451, 1958 Tenn. LEXIS 295 (1958).

A co-employee who causes injury while acting outside the course of his employment is not protected from liability in common-law actions arising out of the injury. Taylor v. Linville, 656 S.W.2d 368, 1983 Tenn. LEXIS 714 (Tenn. 1983).

Neither the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., nor the federal labor laws, nor the employee's failure to make use of the grievance procedure barred employee's tort actions against another employee. Blair v. Allied Maintenance Corp., 756 S.W.2d 267, 1988 Tenn. App. LEXIS 317 (Tenn. Ct. App. 1988).

In a case arising from a motor vehicle accident involving two co-workers, plaintiff was limited exclusively to his recovery in workers'  compensation and could not bring a common law negligence claim against his co-worker for the same incident. Williams v. Buraczynski, — S.W.3d —, 2017 Tenn. App. LEXIS 487 (Tenn. Ct. App. July 19, 2017).

5. Suit Against Co-employer.

Where plaintiff was employee of supplier of temporary manpower and was supplied to defendant who requested some temporary day labor, defendant was a co-employer with the employment agency at the time of plaintiff's injury and plaintiff was limited to a cause of action under the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., and precluded from bringing an action in negligence against defendant. Bennett v. Mid-South Terminals Corp., 660 S.W.2d 799, 1983 Tenn. App. LEXIS 627 (Tenn. Ct. App. 1983).

The definition of “employer” under the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., which includes the compensation insurance carrier, also includes the employees of the insurance carrier. Spears v. Morris & Wallace Elevator Co., 684 S.W.2d 620, 1984 Tenn. App. LEXIS 3047 (Tenn. Ct. App. 1984).

6. Compromise of Claims against Third Party.

This section, by necessary implication, authorizes the employee to settle with the third party without suit. Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954).

Widow was empowered under § 20-5-106 to maintain suit for benefit of herself and minor child against third parties for tort causing worker's death and may compromise these claims without suit, and such compromise did not have to be postponed until after a final determination of employer's liability under Workers' Compensation Law. Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954).

In considering legal effect of settlement with third parties by widow of workman as affects liability of employer to widow and child under Workers' Compensation Law for same accident, Workers' Compensation Law is to be construed liberally in favor of persons entitled to its benefits. Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954).

Workers' compensation insurer who paid medical expenses to employee in excess of employer's statutory liability was entitled by subrogation to recover from third party tortfeasor the excess payments under compensation act by legal subrogation and under the policy by conventional subrogation since it had an indorsement providing for these excess payments regardless of settlement between employee and tortfeasor. United States Fidelity & Guaranty Co. v. Elam, 198 Tenn. 194, 278 S.W.2d 693, 1955 Tenn. LEXIS 363 (1955).

The Tennessee workers' compensation statute does not require the employee to obtain the ratification of the employer before making a settlement with a third-party tortfeasor, but it clearly obligates the employee to repay the employer all compensation advanced and to credit any future compensation due, up to the full amount of the proceeds of any settlement. Aetna Casualty & Surety Co. v. Gilreath, 625 S.W.2d 269, 1981 Tenn. LEXIS 510 (Tenn. 1981).

7. —Rights and Liabilities of Employer.

Where widow settles with third parties whose tort caused death of worker husband, before final determination of employer's liability under Workers' Compensation Law, employer remains liable to full extent under Workers' Compensation Law but is entitled to credit against his liability equal to amount actually collected by widow from third parties. Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954).

The legislative intent is to reimburse an employer for payments made under a workers' compensation award for “the net recovery” obtained by the employee or those to whom his right of action survives, to the extent of the employer's total obligation under the Workers' Compensation Law. Beam v. Maryland Casualty Co., 477 S.W.2d 510, 1972 Tenn. LEXIS 391 (Tenn. 1972).

In a workers'  compensation dispute, an injured employee was not required to obtain the approval of an employer when settling a case with a third-party tortfeasor, even though the employer had a subrogated lien under T.C.A. § 50-6-112. Cooper v. Logistics Insight Corp., 395 S.W.3d 632, 2013 Tenn. LEXIS 12 (Tenn. Jan. 16, 2013).

8. Extent of Rights Created.

Under this section, the employee may sue and recover from a negligent third party and the employer who has paid or become obligated to pay compensation has a right of subrogation against the third party, but this section does not provide for a right of setoff, counterclaim, contribution or indemnity in favor of the third party. Trammell v. Appalachian Electric Co-operative, 135 F. Supp. 512, 1955 U.S. Dist. LEXIS 2610 (D. Tenn. 1955).

Where: (1) principal contractor, subcontractor and subcontractor's injured employee were all citizens of Tennessee; (2) contract of employment between employee and subcontractor was executed in Tennessee; (3) both principal contractor and subcontractor had complied with Tennessee Compensation Act; and (4) employee was injured in another state under circumstances which would have been compensable in Tennessee, Tennessee Workers' Compensation Law provided exclusive remedy in courts of Tennessee and suit against principal contractor based on common law negligence would be barred if Tennessee Workers' Compensation Law was pleaded as a defense. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

9. Suit Against Third Party.

Administrator of deceased worker could maintain suit against third party whose alleged negligence caused the death of the worker, even though there was pending an action by the widow against the employer's insurance carrier in which carrier had acknowledged liability. Trammell v. Appalachian Electric Co-operative, 135 F. Supp. 512, 1955 U.S. Dist. LEXIS 2610 (D. Tenn. 1955).

Where defendant was a cotort-feasor with employer, the fact that workers' compensation payments were received will not release defendant. Cart v. Coal Creek Mining & Mfg. Co., 153 F. Supp. 330, 1957 U.S. Dist. LEXIS 3240 (D. Tenn. 1957).

Where plaintiff, a maintenance mechanic, had suffered chronic lymphocytic leukemia, allegedly from exposure to radioactive and toxic substances and materials, and was shown by the record to be an employee of an independent contractor conducting the Oak Ridge operations of the atomic energy commission, he was not limited to remedies under Tennessee Workers' Compensation Law but could maintain common law action against United States as third party tort-feasor. Mahoney v. United States, 216 F. Supp. 523, 1962 U.S. Dist. LEXIS 6118 (E.D. Tenn. 1962).

Where widow was receiving compensation benefits under Illinois law for death of her husband, employee of tower erector, she could not recover from prime contractor on theory that the tower erector was negligent and prime contractor was his employer and liable under doctrine of respondeat superior, since under both Illinois and Tennessee law the prime contractor was not a third party. Mooney v. Stainless, Inc., 338 F.2d 127, 1964 U.S. App. LEXIS 4741 (6th Cir. Tenn. 1964), cert. denied, 381 U.S. 925, 85 S. Ct. 1561, 14 L. Ed. 2d 684, 1965 U.S. LEXIS 1173 (1965).

Where under the contract between defendant and plaintiff's immediate employer, the latter furnished men to work under the direction and control of defendant's representatives reconstructing generating station, plaintiff workman, having collected compensation from his immediate employer's insurance carrier for injuries suffered on the reconstruction project, must be treated and considered as an employee of defendant and cannot be permitted to sue his ultimate employer at common law. Clower v. Memphis Light, Gas & Water Div., 54 Tenn. App. 716, 394 S.W.2d 718, 1965 Tenn. App. LEXIS 288 (Tenn. Ct. App. 1965).

Where death of an employee was caused by the combined negligence of the employer and a third party, damages for the wrongful death of such employee will be apportioned between the employer and such third party, notwithstanding the fact that the employer had previously paid full workers' compensation to such employee's widow. Brogdon v. Southern R. Co., 253 F. Supp. 676, 1966 U.S. Dist. LEXIS 7751 (E.D. Tenn. 1966), aff'd, 384 F.2d 220, 1967 U.S. App. LEXIS 5157 (6th Cir. Tenn. 1967).

Where attorney for injured employee and compensation carrier agreed that it would not be necessary for carrier to file intervening petition in suit by employee against third party tort-feasor but that attorney would protect carrier's rights, and that with respect to portion of judgment for which carrier would be entitled to subrogation attorney would hold same for benefit of carrier, carrier was entitled to maintain separate action for interest on such portion of judgment from date of judgment after amount of subrogation claim had been paid even though carrier had not filed subrogation claim. Berke v. Reliance Ins. Co., 62 Tenn. App. 94, 459 S.W.2d 172, 1969 Tenn. App. LEXIS 274 (Tenn. Ct. App. 1969).

Where defendant is found not to be a principal contractor under § 50-6-113, he may be sued as a “third person” under this section. Womble v. J. C. Penney Co., 431 F.2d 985, 1970 U.S. App. LEXIS 7337 (6th Cir. Tenn. 1970).

Where claimant was a hospital employee who suffered injury arising out of and in the course of her employment, and subsequently was admitted to the employer hospital where her injury was aggravated by negligent treatment, she was barred from suing the hospital at common law for any injury incurred while she was a patient, since the hospital was her employer and not a third party. McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240, 1977 Tenn. LEXIS 535 (Tenn. 1977).

A workers' compensation insurance carrier and its employee cannot be classified as a “third party” and a plaintiff who has received benefits from an insurance carrier under the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., may not maintain a suit against the carrier and its employee in tort. Spears v. Morris & Wallace Elevator Co., 684 S.W.2d 620, 1984 Tenn. App. LEXIS 3047 (Tenn. Ct. App. 1984).

Where the defendant contractor had a degree of control over, and involvement in, the work performed by subcontractor not normally found in a customer-independent contractor relationship, the contractor was acting as a principal contractor in its relationship with the subcontractor, and as such, is protected from third-party liability. Manis v. Erwin Utils., 661 F. Supp. 3 (E.D. Tenn. 1986).

Defendant's status as independent contractor did not place it outside the purview of T.C.A. § 50-6-112 because it was performing a non-delegable duty of the workers' compensation carrier when it failed to pay plaintiff's claim. Davis v. Alexsis, Inc., 2 S.W.3d 228, 1999 Tenn. App. LEXIS 203 (Tenn. Ct. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 449 (Tenn. Sept. 13, 1999).

After the workers'  compensation claim of an employee of a real estate and auction company was settled, the employee's common law tort claims against the employer's managing broker were dismissed because T.C.A. § 50-6-108(a) limited the employee's rights and remedies to the workers'  compensation settlement, as the employee was injured in the course of the employee's employment while assisting the managing broker of the company to move cattle panels on the managing broker's personal farm. However, the employee was permitted, under T.C.A. § 50-6-112(a), to maintain common law tort claims against the managing broker's adult child, who was called to assist after the injury occurred, because the adult child was not an affiliate, officer, director, employee, agent or representative of the employer when the employee sustained injuries and the adult child did not come within the terms of the release which the employee signed. Ridenour v. Carman, — S.W.3d —, 2013 Tenn. App. LEXIS 180 (Tenn. Ct. App. Mar. 15, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 691 (Tenn. Aug. 14, 2013).

10. —Limitation of Action.

Workers' compensation recipient must bring action against nonresident third party tort-feasor in another state within one year after the injury or as a matter of law the cause of action is assigned to his employer, since the general tolling of § 28-2-111(a) in reference to nonresidents does not apply. Willis v. Weil Pump Co., 130 F. Supp. 896, 1954 U.S. Dist. LEXIS 2281 (D.N.Y. 1954), aff'd, 222 F.2d 261, 1955 U.S. App. LEXIS 3797 (2d Cir. N.Y. 1955).

The Mississippi statute of limitations and not the limitation of this section would govern an action by an injured Tennessee employee against a third party for injuries received in an accident occurring in Mississippi. Graham v. Red Ball Motor Freight, Inc., 262 F. Supp. 49, 1966 U.S. Dist. LEXIS 7485 (N.D. Miss. 1966).

The Workers' Compensation Law is for the benefit of employees primarily and for employers and their insurance carriers next and the assignment to the employer by action of law is not available to an alleged negligent third party as a defense to an action brought by the employee after one year from the date of injury. Graham v. Red Ball Motor Freight, Inc., 262 F. Supp. 49, 1966 U.S. Dist. LEXIS 7485 (N.D. Miss. 1966).

Where an involved injury provided benefits to an injured person under the Workers' Compensation Law, the action against the third-party wrongdoer was controlled by state statute providing that period of limitation ran from date of injury. Williams v. Singer Co., 457 F.2d 799, 1972 U.S. App. LEXIS 10675 (6th Cir. Tenn. 1972).

Suit by workers' compensation recipient against manufacturers and supplier of equipment for injuries sustained during the course of employment was governed by limitation of this section rather than that of § 28-3-104. Dobbins v. Terrazzo Machine & Supply Co., 479 S.W.2d 806, 1972 Tenn. LEXIS 401 (Tenn. 1972).

If the one-year limitation in this section has not expired, a products liability action under this section may be brought but is subject to the 10-year limitation of § 29-28-103. Hawkins v. D & J Press Co., 527 F. Supp. 386, 1981 U.S. Dist. LEXIS 16194 (E.D. Tenn. 1981).

Where injury, resulting in wrongful death, for which suit was brought occurred more than one year prior to the institution of the suit, suit was barred by T.C.A. § 50-6-112(d) as well as T.C.A. § 28-3-104 and there is no conflict between these provisions. Craig v. R.R. Street & Co., 794 S.W.2d 351, 1990 Tenn. App. LEXIS 12 (Tenn. Ct. App. 1990).

The general assembly intended for the employer or the workers' compensation carrier to proceed with its assigned claim within 18 months of the date the cause of action accrues. Craig v. R.R. Street & Co., 794 S.W.2d 351, 1990 Tenn. App. LEXIS 12 (Tenn. Ct. App. 1990).

Where warranty action was based on an injury compensable under the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., occurring under circumstances creating legal liability in a third party, the specific statute of limitations of T.C.A. § 50-6-112 controlled over the general statute of limitations in T.C.A. § 47-2A-506. Lambert v. Invacare Corp., 985 S.W.2d 446, 1998 Tenn. App. LEXIS 588 (Tenn. Ct. App. 1998).

Trial court erred in granting a trucking company's motion for summary judgment as it related to an employer because the rendering of an employee's complaint as void ab initio operated as an assignment of the employee's cause of action to the employer, providing the employer with six months within which to file its complaint, and the employer filed its complaint to recover worker's compensation benefits paid to the employee prior to the assignment. Duffer v. Keystops, LLC, — S.W.3d —, 2012 Tenn. App. LEXIS 530 (Tenn. Ct. App. July 31, 2012).

11. Suit against Employer by Third Party.

Where a third party is found liable for injuries to a worker, the third party may not then seek indemnity from the worker's employer even though the employer himself is liable for the injuries under the Workers' Compensation Law, although such a claim could be based on an otherwise valid expressed contract of indemnity. Rupe v. Durbin Durco, Inc., 557 S.W.2d 742, 1976 Tenn. App. LEXIS 269 (Tenn. Ct. App. 1976).

12. Effect of Recovery on Employer's Payments.

Where employee recovered against third party tort-feasor and amount of recovery was credited to the employer against his liability to the employee with the remainder of the amount due under the compensation statute to be paid in weekly installments, such installment payments should have been deferred until the sum total of the weekly credits that would have accrued from the date of the injury would have been equal to the net credit from the recovery from the third party tort-feasor. Reece v. York, 199 Tenn. 592, 288 S.W.2d 448, 1956 Tenn. LEXIS 358 (1956).

Where employee recovered against third party tort-feasor and amount of recovery credited to the employer against liability to employee with the remainder of the amount due under the compensation statute to be paid in weekly installments, contention of employee that to defer payment of weekly installments until the amount of weekly credits accrued amounted to the net credit from the tort-feasor would deprive employer of right to bring suit against tort-feasor by reason of limitation of this section was without merit. Reece v. York, 199 Tenn. 592, 288 S.W.2d 448, 1956 Tenn. LEXIS 358 (1956).

A woman may legally make a settlement with third party tort-feasor without suit or before intervention by employer in a suit where insurance carrier did not give notice to defendant tort-feasor of its claim until after settlement by worker and tort-feasor. Employers Liability Assurance Corp. v. St. Louis & S. F. R., 497 S.W.2d 249, 1972 Tenn. App. LEXIS 292 (Tenn. Ct. App. 1972).

13. Recovery under Federal Tort Claims Act.

Employee of subcontractor injured at government ordinance plant was not barred from recovery against the U.S. government under the federal Tort Claims Act (28 U.S.C. § 2671 et seq.) merely because he had received compensation under the Tennessee Workers' Compensation Law since this section expressly provides that an injured worker may take compensation under the compensation statute and also sue for recovery against a third party responsible for his injury. Pierce v. United States, 142 F. Supp. 721, 1955 U.S. Dist. LEXIS 2165 (D. Tenn. 1955), aff'd, 235 F.2d 466, 1956 U.S. App. LEXIS 3887 (6th Cir. Tenn. June 29, 1956).

This section did not preclude action of employee against United States under federal Tort Claims Act (28 U.S.C. § 2674) for damages suffered in automobile accident which with the consent of the employer was filed more than a year after the alleged tortious injury occurred. Kimbrell v. United States, 306 F.2d 98, 1962 U.S. App. LEXIS 4475 (6th Cir. Tenn. 1962).

14. Malpractice.

Where injury to worker was aggravated by improper treatment by physician, employed by employer on a fee basis, injured employee could bring action against the physician for malpractice, notwithstanding that he received compensation under the act. Garrison v. Graybeel, 202 Tenn. 567, 308 S.W.2d 375, 1957 Tenn. LEXIS 442 (1957).

The provisions of T.C.A. § 29-26-119 of the former  Medical Malpractice Review Board and Claims Act did not repeal or directly deal with the terms of T.C.A. § 50-6-112 that grant employers a subrogation lien for benefits paid or payable under the Workers' Compensation Law. Nance v. Westside Hospital, 750 S.W.2d 740, 1988 Tenn. LEXIS 52 (Tenn. 1988), rehearing denied, 750 S.W.2d 740, 1988 Tenn. LEXIS 305 (Tenn. 1988).

15. Subrogation of Employer.

An employer who provides payment of medical expenses in excess of his statutory liability under § 50-6-204 is not an intermeddler or volunteer so as to bar his insurer from subrogation for these payments against a third party tort-feasor since there is a moral obligation and it supplies good will, it is within the legislative intention, and in keeping with public policy. United States Fidelity & Guaranty Co. v. Elam, 198 Tenn. 194, 278 S.W.2d 693, 1955 Tenn. LEXIS 363 (1955).

Insurance carrier was entitled to reimbursement for total net settlement by third party for wrongful death of employee where net settlement was less than insurer's total obligation for workers' compensation benefits and trial court improperly restricted recovery to widow's portion on theory that subrogation rights did not extend to portion of decedent's surviving children who did not receive compensation benefits. Beam v. Maryland Casualty Co., 477 S.W.2d 510, 1972 Tenn. LEXIS 391 (Tenn. 1972).

This section, authorizing an employer to intervene in an action to protect and enforce its subrogation lien, does not give right to the third person, against whom suit is brought by the employee, to require the employer or its insurer to be joined as a real party in interest to the action. McCoy v. Wean United, Inc., 67 F.R.D. 491, 1973 U.S. Dist. LEXIS 10477 (D. Tenn. 1973).

T.C.A. § 50-6-112 imposes an implied duty upon the part of an employee's attorney to recognize the employer's lien, when known to him, and when no other attorney represents the employer's subrogation interest, in the event of a recovery against a third-party tortfeasor by “judgment, settlement or otherwise” and to disburse the proceeds of such recovery in accord with the rights of all parties declared therein. Aetna Casualty & Surety Co. v. Gilreath, 625 S.W.2d 269, 1981 Tenn. LEXIS 510 (Tenn. 1981).

The right of subrogation declared in this section is a right that vests in every insurance company that pays benefits to an injured worker, and attaches as a matter of statutory law, to the recovery of the injured worker against tortfeasors, “by judgment, settlement or otherwise.” Aetna Casualty & Surety Co. v. Gilreath, 625 S.W.2d 269, 1981 Tenn. LEXIS 510 (Tenn. 1981).

Nothing in T.C.A. § 50-6-112, or elsewhere in the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., allows an employee to circumvent the employer's statutory subrogation lien by entering into a settlement with a third party, even though the employer's rights to sue the third party had been preserved. Heggie v. Cumberland Electric Membership Corp., 790 S.W.2d 284, 1990 Tenn. App. LEXIS 51 (Tenn. Ct. App. 1990).

Where an injured employee who had been paid workers' compensation and subsequently recovered a judgment against a third party, the net proceeds of which exceeded the employer's subrogation claim, a pro rata portion of the cost and attorney's fees could not be charged against the subrogation claim. Breedlove v. Niagara Cold Drawn South, 813 S.W.2d 467, 1991 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1991), appeal denied, State v. Gardner, 1991 Tenn. LEXIS 161 (Tenn. Apr. 15, 1991).

A workers' compensation insurance carrier was not entitled to an award against the proceeds of a settlement between a deceased workers' personal representative and the workers' uninsured motorist (UM) insurer since the UM insurer's liability was not a legal liability for the worker's death but, rather, was a liability in contract determined by the terms of the insurance agreement and, as subrogee of the worker, the workers' compensation carrier had no independent cause of action against the UM insurer. Hudson ex rel. Hudson v. Hudson Mun. Contractors, 898 S.W.2d 187, 1995 Tenn. LEXIS 188 (Tenn. 1995).

In tort action for personal injuries, employer's workers' compensation carrier is entitled to enforcement of a subrogation claim for benefits paid to an employee, where at trial, fault was attributed to the employee and the employer; T.C.A. § 50-6-112 creating the subrogation claim does not by its terms condition the claim upon the employee obtaining a full recovery of damages sustained, but rather the subrogation lien attaches to the net recovery collected and secures the amount paid by the employer or the amount of the employer's future liability, as it accrues. Castleman v. Ross Eng'g, 958 S.W.2d 720, 1997 Tenn. LEXIS 626 (Tenn. 1997).

The “credit on the employer's future liability” as used in T.C.A. § 50-6-112(c)(2) and (3) does not encompass future medical payments when the parties have settled the case for a lump sum award. Graves v. Cocke County, 24 S.W.3d 285, 2000 Tenn. LEXIS 369 (Tenn. 2000).

The “made whole doctrine,” which refers to the injured party receiving full compensation for losses as a prerequisite for allowing an insurer to exercise its subrogation rights, does not apply to workers' compensation cases. Graves v. Cocke County, 24 S.W.3d 285, 2000 Tenn. LEXIS 369 (Tenn. 2000).

In contrast to Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555, 2001 Tenn. LEXIS 112, the workers'  compensation statutes provide for compensating a deceased worker's spouse with death benefits; thus, the purpose of the statutory subrogation lien, i.e. to prevent a double recovery, is present when an employee's surviving spouse obtains a wrongful death recovery from a third-party tortfeasor but is absent when an employee's spouse obtains a recovery on a claim for loss of consortium. Correll v. E.I. Dupont de Nemours & Co., 207 S.W.3d 751, 2006 Tenn. LEXIS 1001 (Tenn. 2006).

Employer was entitled to a subrogation lien under T.C.A. § 50-6-112, representing amounts previously paid to the employee or on his behalf, because under the statute the employer was entitled to a subrogation lien against the employee's third-party recovery if the employer had fully or partially paid and discharged its maximum workers' compensation liability, and the employer partially paid and discharged its maximum workers' compensation liability by paying workers' compensation benefits. Hickman v. Cont'l Baking Co., 143 S.W.3d 72, 2004 Tenn. LEXIS 703 (Tenn. 2004).

Where the employee of a nursing home was injured in an automobile accident while her co-worker was driving to a training facility, the co-worker's insurer settled a claim with the employee under the liability provision of the policy. The right of subrogation did not come into play, because there was no legal liability of any party other than the employer; the co-worker could not be held liable because both employees were subject to the workers'  compensation laws. Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 2006 Tenn. LEXIS 301 (Tenn. 2006).

Employer's subrogation right under T.C.A. § 50-6-112(c) extended to the wrongful death recovery that a deceased employee's widow obtained in a products liability action filed by the employee in Georgia prior to his death; however, on remand, the trial court was to determine the portion of the recoveries attributable to the widow's loss of consortium claim to which the employer's subrogation right did not extend. Correll v. E.I. Dupont de Nemours & Co., 207 S.W.3d 751, 2006 Tenn. LEXIS 1001 (Tenn. 2006).

Need to prevent double recovery with respect to a wrongful death claim governed by Tennessee law also exists when the wrongful death recovery is obtained under Georgia law; the employer's right of subrogation under T.C.A. § 50-6-112 applies in both instances; this is consistent with the result Georgia courts have reached concerning the subrogation interest employers are afforded by Georgia's workers'  compensation statutes. Correll v. E.I. Dupont de Nemours & Co., 207 S.W.3d 751, 2006 Tenn. LEXIS 1001 (Tenn. 2006).

Judgments for the third parties in a T.C.A. § 50-6-112 suit were in error as although under the election of remedies doctrine, a widow who chose to receive workers'  compensation benefits under Iowa's workers'  compensation laws could not then seek workers'  compensation benefits for that same injury in Tennessee, the employer could rely on § 50-6-112 in seeking subrogation benefits against the third-parties, who allegedly committed a tort resulting in the decedent's death. Lacroix v. L.W. Matteson, Inc., 393 S.W.3d 687, 2012 Tenn. App. LEXIS 342 (Tenn. Ct. App. May 29, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 653 (Tenn. Sept. 19, 2012).

If an employee or his survivors elect not to receive Tennessee workers'  compensation benefits but are entitled to same, they should still, under Tennessee's statute, be allowed to take advantage of the provision in T.C.A. § 50-6-112 allowing for a third party tort claim for the same injury; and if the employee/survivors are entitled to maintain such an action, it follows that the employer can then maintain such an action between 12-18 months from the date of injury if the employee fails to file it within 12 months, as the statute expressly provides. Lacroix v. L.W. Matteson, Inc., 393 S.W.3d 687, 2012 Tenn. App. LEXIS 342 (Tenn. Ct. App. May 29, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 653 (Tenn. Sept. 19, 2012).

Trial court properly declined to include nurse case management expenses as part of an employer's workers'  compensation subrogation lien under T.C.A. § 50-6-112 where case management was discretionary under the applicable statutory and regulatory provisions, former T.C.A. § 50-6-123 (amended 2016) and Tenn. Comp. R. & Regs. 0800-2-7-.03(1) (2007), and case management services were primarily for the benefit of the employer, not the employees. Memphis Light Gas & Water Div. v. Watson, — S.W.3d —, 2019 Tenn. App. LEXIS 82 (Tenn. Ct. App. Feb. 13, 2019).

Special master incorrectly estimated workers'  compensation carrier's subrogation lien when the carrier had not fully paid and discharged the maximum liability at the time of the judgment, as the amount of the lien should have been equal to the weekly benefits and funeral benefits less the amount of future, unpaid weekly benefits. The carrier was entitled to a credit against future liability to the extent that the net recovery of the decedent's survivors exceeded the amount that the carrier previously paid in workers'  compensation benefits. Cordova ex rel. Alfredo C. v. Nashville Ready Mix, Inc., — S.W.3d —, 2020 Tenn. App. LEXIS 225 (Tenn. Ct. App. May 19, 2020).

16. Attorney's Fees.

In action arising prior to 1963 amendment to this section and § 50-6-226, which inserted provisions relating to attorney's fees, where employee's widow recovered amount in excess of compensation which employer's insurance carrier agreed to pay, attorney's fee with respect to amount subject to subrogation was to be fixed by court while, with respect to the excess, the contract between attorney and client governed the fee, and attorney's fee on amount subject to subrogation could not be recouped from excess recovery going to employee. Martin v. McMinnville, 51 Tenn. App. 503, 369 S.W.2d 902, 1962 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1962).

There is nothing in T.C.A. § 50-6-112 giving rise to a right of recovery of attorney's fees by a plaintiff from the employer in connection with collection of a judgment against a third party. Long v. General Aviation Service, Inc., 498 F. Supp. 78, 1980 U.S. Dist. LEXIS 14128 (E.D. Tenn. 1980).

Claimant's obligation to pay her former attorney a 20 percent fee had not been extinguished by law, and because this amount had explicitly been held to be reasonable by the trial court, claimant was liable to pay her former attorney the balance of $6,522 owed him for his services as her attorney in a workers' compensation case. West v. C.B. Ragland Co., 842 S.W.2d 251, 1992 Tenn. LEXIS 626 (Tenn. 1992).

Where the total recovery in a third party action was less than the workers' compensation benefits paid, in order to give effect to the statutory mandate of giving the employee's attorney a first lien on the “recovery”, the attorney for an injured workman was awarded his reasonable attorney's fees against the amount recovered from a third party. Miller v. Boswell, 844 S.W.2d 626, 1992 Tenn. App. LEXIS 524 (Tenn. Ct. App. 1992).

Where the employer's lawyer did not actively participate in the prosecution of the tort action, the employee's attorney's fee was to be charged against the entire recovery and was to reduce the employer's subrogation claim by a pro rata amount. Summers v. Command Sys., 867 S.W.2d 312, 1993 Tenn. LEXIS 414 (Tenn. 1993).

Employee was entitled to be reimbursed for the employer's proportionate share of the attorney fees from the third-party suit. Hickman v. Cont'l Baking Co., 143 S.W.3d 72, 2004 Tenn. LEXIS 703 (Tenn. 2004).

Trial court did not err in holding that the employee's attorney was entitled to an attorney's fee from the employer's subrogation lien where the attorney had performed a number of tasks on the employee's behalf, and the employer's counsel had not intervened or actively participated in the third-party tort action. Memphis Light Gas & Water Div. v. Watson, — S.W.3d —, 2019 Tenn. App. LEXIS 82 (Tenn. Ct. App. Feb. 13, 2019).

Because there was no evidence upon which to find that the workers'  compensation carrier or its counsel actively participated in the prosecution of the wrongful death action, or in effecting recovery against the other person, or were prevented from so doing—despite the carrier's contention that it withheld filing its intervening complaint in consideration and at the behest of the survivors'  counsel, the survivors'  counsel was entitled to a fee from the carrier's portion of the recovery—which was equal to the benefits it had paid. Cordova ex rel. Alfredo C. v. Nashville Ready Mix, Inc., — S.W.3d —, 2020 Tenn. App. LEXIS 225 (Tenn. Ct. App. May 19, 2020).

17. General Contractor.

Where a business enterprise undertakes to act as its own general contractor and contracts directly with subcontractors for various phases of construction on its own premises, such business enterprise is subject to the liability imposed by the workers' compensation law upon general contractors and, consequently, is entitled to the immunities conferred by the same law. Fugunt v. Tennessee Valley Authority, 545 F. Supp. 977, 1982 U.S. Dist. LEXIS 14126 (E.D. Tenn. 1982).

18. Guarantor.

The guarantor of a self-insured employer's obligations is entitled to the same immunity from suit afforded an insurer of an employer's worker's compensation obligations. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

There is no principled distinction between the status of a workers' compensation insurer and that of a guarantor who guarantees the employer's financial ability to comply with the workers' compensation statutes. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

19. Statutory Employer.

The two tests employed to determine whether an employer-employee relationship is that of a statutory employer or an independent contractor are: (1) whether the work being performed by the contractor in question is the same type of work usually performed by the company or is part of the regular business of the company; and (2) whether the company has the right to control employees of the contractor. Barber v. Purina, 825 S.W.2d 96, 1991 Tenn. App. LEXIS 605 (Tenn. Ct. App. 1991).

The provision in a contract purporting to establish that plaintiff's employer was an independent contractor was not dispositive of the issue of whether the defendant was a statutory employer. Barber v. Purina, 825 S.W.2d 96, 1991 Tenn. App. LEXIS 605 (Tenn. Ct. App. 1991).

Where defendant had control over the nature of the dimensions of the work and the order of completion of the work, and the right to terminate the contract, defendant had more control than was necessary merely to insure that the end result conformed to the plans and specifications of the contract, indicating that defendant was a statutory employer. Barber v. Purina, 825 S.W.2d 96, 1991 Tenn. App. LEXIS 605 (Tenn. Ct. App. 1991).

Trial court properly granted summary judgment to a general contractor's auto insurer on a subrogee's negligence claim because the injured employee and a co-worker, who was also the third-party tortfeasor, were employees of the subcontractor, the injured employee and the co-worker were acting in the course and scope of their employment for the subcontractor at the time of the injury, and, thus, the general contractor was the injured employee's statutory employer. T.C.A. § 50-6-113; the injured employee and the co-worker were additional insureds under the general contractor's policy. Erie Ins. Exch. v. Columbia Nat'l Ins. Co., — S.W.3d —, 2013 Tenn. App. LEXIS 60 (Tenn. Ct. App. Jan. 30, 2013), appeal denied, Erie Ins. Exch. v. Columbia Nat'l Ins. Co., — S.W.3d —, 2013 Tenn. LEXIS 673 (Tenn. Aug. 13, 2013).

20. Loss of Consortium Claim.

An employer's right to subrogation does not extend to amounts recovered by the worker's spouse for loss of consortium against a third-party tortfeasor; amounts collected by a spouse for a cause of action vested solely in that spouse are beyond the reach of the statutory subrogation lien provided for in T.C.A. § 50-6-112(c). Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555, 2001 Tenn. LEXIS 112 (Tenn. 2001).

When the allocation of damages between an injured worker and the injured worker's spouse is determined by settlement, a party may request approval of the settlement from the court having jurisdiction over the third party claim; the court shall review the settlement to ensure that the allocation of settlement proceeds between the worker and the worker's spouse is fair and reasonable. Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555, 2001 Tenn. LEXIS 112 (Tenn. 2001).

21. Future Liability Credit.

Employer was not entitled to a credit against future liability for medical expenses that were unknown or incalculable at the time of the trial of the workers' compensation case, and the trial court correctly held that the employer's credit against future liability did not apply to future medical expenses. Hickman v. Cont'l Baking Co., 143 S.W.3d 72, 2004 Tenn. LEXIS 703 (Tenn. 2004).

In a negligence case filed by a benefits claimant against a third-party tortfeasor, an employer of the benefits claimant was not entitled to a subrogation lien under T.C.A. § 50-6-112 for future medical expenses; they were not included in the employer's future liability. Cooper v. Logistics Insight Corp., 395 S.W.3d 632, 2013 Tenn. LEXIS 12 (Tenn. Jan. 16, 2013).

Collateral References.

Effect of Workers' Compensation Act on right of third person tort-feasor to recover contribution from employer of injured or killed worker. 12 A.L.R. Fed. 616, 100 A.L.R.3d 350.

Employer's right of action for loss of services or the like against third person tortiously killing or injuring employee. 4 A.L.R.4th 504.

Malpractice, right of employer or insurer who has paid award to employee to maintain action against physician for. 28 A.L.R.3d 1066.

Modern status of effect of state workers' compensation act on right of third-person tort-feasor to contribution or indemnity from employer of injured or killed workers. 100 A.L.R.3d 350.

Prejudicial effect of bringing to jury's attention fact that plaintiff in personal injury or death action is entitled to workers' compensation benefits. 69 A.L.R.4th 131.

Remedy as between subcontractor and principal contractor (or independent contractor or contractee) in respect of workers' compensation paid by one to employee injured through other's negligence, where injured employee had no remedy apart from the act. 166 A.L.R. 1221.

Right of employer or workers' compensation carrier to lien against, or reimbursement out of, uninsured or underinsured motorist proceeds payable to employee injured by third party. 33 A.L.R.5th 587.

Right of tort-feasor to mitigate opponent's damages for loss of earning capacity by showing that his compensation, notwithstanding disability, has been paid by his employer. 7 A.L.R.3d 516.

Rights and remedies where employee was injured by third person's negligence. 19 A.L.R. 766, 27 A.L.R. 493, 37 A.L.R. 838, 67 A.L.R. 249, 88 A.L.R. 665, 106 A.L.R. 1040.

Willful, wanton, or reckless conduct of coemployee as ground of liability despite bar of worker's compensation law. 57 A.L.R.4th 888.

Workers' Compensation Acts, right to subrogation under specific provisions of in relation to employees of independent contractors or subcontractors. 58 A.L.R. 892, 105 A.L.R. 580, 151 A.L.R. 1359.

Workers' Compensation Law, indemnity from manufacturer or vendor for liability under, for injury to employee by defective machine furnished employer. 37 A.L.R. 853.

50-6-113. Liability of principal contractor, intermediate contractor or subcontractor.

  1. A principal contractor, intermediate contractor or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the principal contractor, intermediate contractor or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer.
  2. Any principal contractor, intermediate contractor or subcontractor who pays compensation under subsection (a) may recover the amount paid from any person who, independently of this section, would have been liable to pay compensation to the injured employee, or from any intermediate contractor.
  3. Every claim for compensation under this section shall be in the first instance presented to and instituted against the immediate employer, but the proceedings shall not constitute a waiver of the employee's rights to recover compensation under this chapter from the principal contractor or intermediate contractor; provided, that the collection of full compensation from one (1) employer shall bar recovery by the employee against any others, nor shall the employee collect from all a total compensation in excess of the amount for which any of the contractors is liable.
  4. This section applies only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or that are otherwise under the principal contractor's control or management.
  5. A subcontractor under contract to a general contractor may elect to be covered under any policy of workers' compensation insurance insuring the contractor upon written agreement of the contractor, by filing written notice of the election, on a form prescribed by the administrator, with the bureau. It is the responsibility of the general contractor to file the written notice with the bureau. Failure of the general contractor to file the written notice shall not operate to relieve or alter the obligation of an insurance company to provide coverage to a subcontractor when the subcontractor can produce evidence of payment of premiums to the insurance company for the coverage. The election shall in no way terminate or affect the independent contractor status of the subcontractor for any other purpose than to permit workers' compensation coverage. The election of coverage may be terminated by the subcontractor or general contractor by providing written notice of the termination to the bureau and to all other parties consenting to the prior election. The termination shall be effective thirty (30) days from the date of the notice to all other parties consenting to the prior election and to the bureau.
  6. This section shall not apply to a construction services provider, as defined by § 50-6-901.

Acts 1919, ch. 123, § 15; Shan. Supp., § 3608a164; Code 1932, § 6866; T.C.A. (orig. ed.), § 50-915; Acts 1988, ch. 525, § 2; 1992, ch. 793, § 1; 1997, ch. 330, §§ 3, 4; 1998, ch. 1024, § 23; 1999, ch. 404, §§ 2, 3; 1999, ch. 520, § 41; 2008, ch. 1041, §§ 1-4; 2010 (1st Ex. Sess.), ch. 1, §§ 1, 2; 2010, ch. 1149, §§ 1, 5; 2013, ch. 282, § 1; 2015, ch. 341, §  15.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which deleted subsections (f) and (g) and added subsection (h). All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

      Amendments. The 2013 amendment, effective July 1, 2014, substituted “administrator” for “commissioner” in the first sentence of (e).

      The 2015 amendment substituted “bureau” for “division” throughout (e).

      Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

NOTES TO DECISIONS

1. No Liability.

Company was not the worker's statutory employer, as there was no evidence that the company undertook work for an entity other than itself, the company did not retain the right to control the worker's conduct, and the company did not control the manner in which the worker performed his job; the fact that the company owned tarping machines and that one of its employees placed a tarp on a load was not sufficient evidence that tarping was part of the company's regular business, and the company was not liable for workers'  compensation benefits. Osborne v. Starrun, Inc., — S.W.3d —, 2018 Tenn. LEXIS 656 (Tenn. Oct. 19, 2018).

50-6-113. Liability of principal contractor, intermediate contractor or subcontractor. [Applicable to injuries occurring prior to July 1, 2014.]

  1. A principal contractor, intermediate contractor or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the principal contractor, intermediate contractor or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer.
  2. Any principal contractor, intermediate contractor or subcontractor who pays compensation under subsection (a) may recover the amount paid from any person who, independently of this section, would have been liable to pay compensation to the injured employee, or from any intermediate contractor.
  3. Every claim for compensation under this section shall be in the first instance presented to and instituted against the immediate employer, but the proceedings shall not constitute a waiver of the employee's rights to recover compensation under this chapter from the principal contractor or intermediate contractor; provided, that the collection of full compensation from one (1) employer shall bar recovery by the employee against any others, nor shall the employee collect from all a total compensation in excess of the amount for which any of the contractors is liable.
  4. This section applies only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or that are otherwise under the principal contractor's control or management.
  5. A subcontractor under contract to a general contractor may elect to be covered under any policy of workers' compensation insurance insuring the contractor upon written agreement of the contractor, by filing written notice of the election, on a form prescribed by the commissioner, with the division. It is the responsibility of the general contractor to file the written notice with the division. Failure of the general contractor to file the written notice shall not operate to relieve or alter the obligation of an insurance company to provide coverage to a subcontractor when the subcontractor can produce evidence of payment of premiums to the insurance company for the coverage. The election shall in no way terminate or affect the independent contractor status of the subcontractor for any other purpose than to permit workers' compensation coverage. The election of coverage may be terminated by the subcontractor or general contractor by providing written notice of the termination to the division and to all other parties consenting to the prior election. The termination shall be effective thirty (30) days from the date of the notice to all other parties consenting to the prior election and to the division.
  6. This section shall not apply to a construction services provider, as defined by § 50-6-901.

Acts 1919, ch. 123, § 15; Shan. Supp., § 3608a164; Code 1932, § 6866; T.C.A. (orig. ed.), § 50-915; Acts 1988, ch. 525, § 2; 1992, ch. 793, § 1; 1997, ch. 330, §§ 3, 4; 1998, ch. 1024, § 23; 1999, ch. 404, §§ 2, 3; 1999, ch. 520, § 41; 2008, ch. 1041, §§ 1-4; 2010 (1st Ex. Sess.), ch. 1, §§ 1, 2; 2010, ch. 1149, §§ 1, 5.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which deleted subsections (f) and (g) and added subsection (h). All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

      The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

      Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 6.

      Law Reviews.

      Employer not Liable for Manager's Egregious Misconduct (Timothy S. Bland and Licia M. Williams), 37 No. 10 Tenn. B.J. 17 (2001).

      Workmen's Compensation — Liability Among Contractors for a Compensable Injury — Contribution and Indemnity, 31 Tenn. L. Rev. 268 (1964).

      Attorney General Opinions. Constitutionality of exemption for certain counties from applicability of workers' compensation insurance requirement for contractors, OAG 97-159 (12/01/97).

      1. Purpose and Intent. 2. Construction. 3. —Principal Contractor. 4. Application. 5. Employees Not Entitled to Invoke Section. 6. Employees of Independent Contractors. 7. Employees of Servants. 8. Liability of Principal Contractor. 9. —Tort Immunity. 10. —Election of Coverage. 11. Premises on Which Principal Contractor Has Undertaken to Work. 12. Recovery by Principal Contractor against Subcontractor. 13. Suit at Common Law. 14. Joinder of Contractor and Subcontractor. 15. Recovery from Contractor Bars Recovery from Subcontractor. 16. Recovery from Subcontractor Bars Recovery from Contractor. 17. Liability of Parties. 18. Statutory Employer.

      The legislative intent in this section was to insure as far as possible to all workers engaged in industry payment according to the schedule of benefits provided when injured in the course of their employment. Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564, 1935 Tenn. LEXIS 46 (1935); Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960); Bowling v. Whitley, 208 Tenn. 657, 348 S.W.2d 310, 1961 Tenn. LEXIS 337 (1961); Billings v. Dugger, 50 Tenn. App. 403, 362 S.W.2d 49, 1962 Tenn. App. LEXIS 155 (Tenn. Ct. App. 1962).

      The purpose of T.C.A. § 50-6-113 and similar statutes is to protect employees from irresponsible subcontractors. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

      The policy underlying T.C.A. § 50-6-113 is to guarantee worker's compensation recovery by passing the responsibility for coverage to principal contractors, who will not have to provide coverage unless they fail to hire responsible, insured subcontractors. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

NOTES TO DECISIONS

1. Purpose and Intent.

T.C.A. § 50-6-113 creates “statutory employers” that will be liable for worker's compensation in case recovery is unavailable against the employee's immediate employer; the purpose is to protect employees from irresponsible subcontractors. The principal or general contractor will be responsible for an injured employee's worker's compensation if it has failed to hire liable, insured subcontractors; the object of the statute is to give the general contractor an incentive to require subcontractors to carry insurance. Posey v. Union Carbide Corp., 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

The intent of T.C.A. § 50-6-113 was to insure as far as possible to all workers payment of benefits when they were injured in the course of their employment. Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 1985 Tenn. LEXIS 591 (Tenn. 1985).

2. Construction.

One employed to do work according to his own methods, free from control of employer, was an independent contractor. Siskin v. Johnson, 151 Tenn. 93, 268 S.W. 630, 1924 Tenn. LEXIS 47 (1925).

Where the power to direct and supervise the work is reserved, the contractee is a servant and not an independent contractor. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924); Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

The mere fact that the laborer is receiving so much by the piece or job does not control the question as to whether the contractee was an independent contractor or a servant. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924); Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

One employed at certain price per thousand feet “to cut and haul said timber as directed by said first party,” the employer having power to direct and supervise the cutting, was a servant, obliged to do the work strictly according to instructions, and not an independent contractor. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924).

Under contract of employment whereby employer simply agreed to pay one for hauling lumber according to the amount hauled, with no relinquishment by the employer of the right to control the means and method by which the hauling was done, or to terminate the employment, the hauler was an employee within meaning of this section and not an independent contractor. Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W.2d 860, 1928 Tenn. LEXIS 119 (1928).

The relationship of employer and employee arises where the former selects the latter, and may discharge him and may order not only that the work shall be done but also the mode of its performance. Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

Words “to the same extent as the immediate employer” are not restrictive but merely mean that liability is imposed on the principal in the same degree as imposed upon immediate employer. Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564, 1935 Tenn. LEXIS 46 (1935); Adams v. Hercules Powder Co., 180 Tenn. 340, 175 S.W.2d 319, 1943 Tenn. LEXIS 21, 151 A.L.R. 1352 (1943).

Where petitioner agreed to paint a roof at rate of $50.00 per hour and at a maximum labor cost of $15.00 for himself and helper and where there was no evidence to show any relinquishment by employer of his right to control the means and methods by which the painting was to be done, there was material evidence to support the chancellor's finding that petitioner was an employee and not an independent contractor. Welch v. Reiling, 170 Tenn. 698, 99 S.W.2d 216, 1936 Tenn. LEXIS 51 (1936).

Where owner of candy company paid social security tax and carried compensation insurance on traveling salesman who was compensated on a basis of five percent of his gross sales and paid his own expenses and at times as a sideline sold goods for other companies with the consent of the candy company but did not so do in the state of Georgia where his death occurred, such salesman was an employee of the candy company and not an independent contractor and was covered by the compensation statute. Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

The provision of this section that “every claim … shall in the first instance be presented to and instituted against the immediate employer” relates to notice and service of notice and not to the suit itself. P. H. Reynolds & Co. v. McKnight, 177 Tenn. 228, 148 S.W.2d 357, 1940 Tenn. LEXIS 31 (1941).

Trucking company and driver of truck engaged in hauling stone furnished by stone company to subcontractor on government project were subcontractors within meaning of phrase “principal, or intermediate contractor or subcontractor.” McVeigh v. Brewer, 182 Tenn. 683, 189 S.W.2d 812, 1945 Tenn. LEXIS 266 (1945).

In ascertaining whether a given contract establishes an employer-employee status or that of an independent contractor, the decisive fact always is whether the party for whom the work was being done had the right of control in the doing of that work. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

Individual injured hauling logs in own truck was entitled to compensation as an employee, rather than an independent contractor, where he was hired for an indefinite time and amount of work with some control of the manner ofworking, even though he is paid by the piece, particularly where indorsement blank on salary checks states the parties are subject to fair labor standards act. Bond Bros., Inc. v. Spence, 198 Tenn. 316, 279 S.W.2d 509, 1955 Tenn. LEXIS 374 (1955).

There is no absolute formula whereby it can be determined whether a party is an employee or independent contractor but the facts of each particular case have to be taken into consideration and from these facts a determination made. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956); Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959); Smart v. Embry, 208 Tenn. 686, 348 S.W.2d 322, 1961 Tenn. LEXIS 340 (1961).

One of the most widely accepted definitions of an independent contractor is: “One who contracts to do a piece of work according to his own methods without being subject to the control of his employer, except as to the result of the work, and who has the right to employ and direct the action of the worker independent of his employer, and free from any superior authority in the employer to say how specified work shall be done, or what the laborers shall do as the work progresses; one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.” Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956); Smart v. Embry, 208 Tenn. 686, 348 S.W.2d 322, 1961 Tenn. LEXIS 340 (1961); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

In determining whether one is an employee or an independent contractor, it is the duty of the court to give the Workers' Compensation Law a liberal construction in favor of the fact that he is an employee, rather than a strict construction. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956).

Where petitioner contracted with coal company to mine coal at stated price per ton with the company to furnish certain equipment and the petitioner to furnish the labor and certain other equipment, and where petitioner paid social security, withheld income tax and paid into miner's pension fund as to his employees but the coal company reserved and exercised full control of where and how the coal was to be mined as well as the quantity of coal and the place at which it was to be delivered and petitioner could have been discharged at any time, evidence supported finding of the trial court that petitioner was an employee rather than an independent contractor. Horn v. State, 553 S.W.2d 736, 1977 Tenn. LEXIS 588 (Tenn. 1977)5.

Where ice cream vendor was furnished with pushcart and products to sell at retail with unsold products being returned to company at close of each day, and company at all times kept control of equipment and products and could seize the products and equipment at any time and terminate contract with vendor, vendor was an employee rather than an independent contractor even though his compensation was the difference between the wholesale and retail prices of the products. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The right of a company to terminate relationship with claimant at will is strong evidence that claimant is an employee rather than an independent contractor. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959); Owens v. Turner, 211 Tenn. 121, 362 S.W.2d 793, 1962 Tenn. LEXIS 348 (1962); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Whether claimant is an employee or independent contractor depends upon the nature of business of the alleged employer, the way it is conducted and the claimant's relationship to that business. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The method of payment for services supposed to be rendered by claimant is not controlling on question of whether he is an employee or independent contractor. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The mere fact that employee was paid at rate of so much per thousand brick laid would not make him an independent contractor or prevent him from being an employee within the meaning of the Act. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960).

In determining whether an individual is an employee or an independent contractor, the test is whether employer had the right to control the employee in doing his work and not whether that right was exercised. Owens v. Turner, 211 Tenn. 121, 362 S.W.2d 793, 1962 Tenn. LEXIS 348 (1962).

Carpenter hired for purpose of repairing garage door by owner of motor company who worked by the hour and intended to submit bill when job was complete was independent contractor and not an employee of the garage owner. Federated Mut. Implement & Hardware Co. v. Shoemaker, 211 Tenn. 523, 366 S.W.2d 129, 1963 Tenn. LEXIS 377 (1963).

For determining whether worker is an employee or an independent contractor in workers' compensation cases, one test is whether employer had a right to control employee in doing the work, and another, the right to terminate the employment at any time, such rights being incompatible with full control of the work usually enjoyed by independent contractor. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Painter was employee rather than independent contractor where he was directed by farm operator to paint trim on house on a particular day and complied, employment could be terminated at any time, regular employees were directed from time to time to paint farm buildings, and painting was an expectable, routine and inherent part of the farming operation. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Factors to be considered in determining whether claimant is an employee or an independent contractor include right or exercise of control by asserted employer, method of payment, furnishing of equipment and right to fire. Fisher v. J. F. G. Coffee Co., 221 Tenn. 333, 426 S.W.2d 502, 1967 Tenn. LEXIS 360 (1967).

Where there is a contract of employment either express or implied the burden is on the employer to show that the claimant is an independent contractor rather than an employee. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

Plaintiff who was engaged to clean bricks on new buildings by the job or by number of bricks, who was not controlled as to means of accomplishment of end result, furnished major portion of tools and materials and frequently hired and paid his own employees, although on occasion he received help from contractor's employees without charge, was, on the facts of the case, an independent contractor rather than an employee, even though plaintiff and building contractor may have engaged in some occasional consultation and experimentation with reference to cleaning solution to be used. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Among the tests for determining whether a work relationship is that of employer-employee or of independent contractor are: (1) Right to control conduct of work; (2) Right of termination; (3) Method of payment between alleged employer and employee; (4) Whether or not alleged employee furnishes his own helpers; and (5) whether or not the alleged employee furnishes his own tools, but these tests are not absolute and are not to be applied abstractly. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969); Carver v. Sparta Electric System, 690 S.W.2d 218, 1985 Tenn. LEXIS 499 (Tenn. 1985); Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 1985 Tenn. LEXIS 591 (Tenn. 1985).

So-called “relative nature of the work” test is of vital significance on the issue of whether an individual is an employee or casual employee but is of less significance where the question is whether the injured person is an employee or independent contractor. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Where only practical difference between truck drivers delivering manufacturer's products as employees and as “contract haulers” was that contract haulers stood to make more money and both types of drivers worked same hours, performed same duties and contracts of contract haulers could be terminated at any time, action of trial judge in finding that “contract hauler” was employee would be sustained. Curtis v. Hamilton Block Co., 225 Tenn. 275, 466 S.W.2d 220, 1971 Tenn. LEXIS 300 (1971).

Where worker had leased a tractor from corporation to be used by worker in delivering gasoline and petroleum products for corporation, and where the lease agreement had provided that the leased equipment would be operated by the corporation's exclusive direction and control and that corporation would have the right to terminate the services of any driver, the worker was an employee of the corporation rather than an independent contractor for workers' compensation purposes. Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858, 1976 Tenn. LEXIS 587 (Tenn. 1976).

Where defendant held a franchise to operate a taxicab company, and where a taxicab driver was seriously injured while answering one of defendant's radio dispatches, the fact that the name of the company and other business information was painted on the vehicles, that all of the cabs were radio dispatched, that gasoline purchases were made by the drivers from defendant, that defendant supplied oil for each vehicle, and that defendant's supervisors checked cabs for cleanliness, constituted sufficient evidence of an employer-employee relationship rather than of independent contractors, and defendant was required to compensate plaintiff under § 50-6-112. Nesbit v. Powell, 558 S.W.2d 436, 1977 Tenn. LEXIS 659 (Tenn. 1977).

Where man and his wife worked on painting and papering homes for mortgage company and painting was sometimes paid for by the hour and sometimes on square foot basis and papering was paid for by the roll, and he could set his own working hours, provide his own tools and hire additional helpers if he wished, he was an independent contractor and not an employee. Barnes v. National Mortg. Co., 581 S.W.2d 957, 1979 Tenn. LEXIS 442 (Tenn. 1979).

Where: (1) Injured person was a member of a partnership and was working on the construction of a house for a general contractor; (2) The general contractor inspected the work to the extent necessary to see that the end result would be according to plan but did not control the methods and details of the work; (3) Payment was negotiated on the square foot of completion basis; and (4) Such injured person hired and paid his own helpers and did not use the workers of the general contractor, such injured person was an independent contractor rather than an employee of the general contractor. Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923, 1980 Tenn. LEXIS 472 (Tenn. 1980).

Where defendant supplied all his own tools and workers, and plaintiff had no right to termination and did not deduct social security or income taxes from defendant's paychecks, defendant was an independent contractor. Jackson Sawmill, Inc. v. West, 619 S.W.2d 105, 1981 Tenn. LEXIS 453 (Tenn. 1981).

The remedies in this section are controlling and exclude all other rights and remedies. Powell v. Aesco Steel, Inc., 694 S.W.2d 309, 1984 Tenn. App. LEXIS 3337 (Tenn. Ct. App. 1984) (common law action for personal injuries barred).

The fact that a company did not deduct social security or income taxes was not controlling in deciding whether an employer-employee or independent contractor relationship existed. Carver v. Sparta Electric System, 690 S.W.2d 218, 1985 Tenn. LEXIS 499 (Tenn. 1985).

The following are to be considered as means of analysis, not as absolutes, in the determination of an independent contractor or employee relationship: (1) The right to control the conduct of the work; (2) The right of termination; (3) The method of payment; (4) The freedom to select and hire helpers; (5) The furnishing of tools and equipment; (6) Self scheduling of work hours; and (7) Being free to render services to other entities. German v. Whaley, 760 S.W.2d 627, 1988 Tenn. LEXIS 201 (Tenn. 1988).

The method of payment, the freedom to select and hire helpers, the furnishing of tools and equipment, and the freedom to render services to other entities unequivocally established defendant as an independent contractor, and evidence on issues of termination and control did not persuasively indicate an employer-employee relationship. German v. Whaley, 760 S.W.2d 627, 1988 Tenn. LEXIS 201 (Tenn. 1988); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

A party to a contract can exercise direction and control over the results of the work without destroying the independence of the contract or creating an employer-employee relationship. Wright v. Knox Vinyl & Aluminum Co., 779 S.W.2d 371, 1989 Tenn. LEXIS 465 (Tenn. 1989).

While no single factor is determinative, the supreme court has repeatedly emphasized the importance of the right to control when distinguishing employees and independent contractors, the relevant inquiry being whether the right existed, not whether it was exercised. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Method of payment does weigh toward finding an independent contractor relationship, but it is one factor among many to be considered. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Where truck leasing company required driver to sign contract emphasizing driver's status as “independent contractor” rather than “employee,” but could effectively terminate its relationship with driver at will, retained the responsibility for selecting the routes to be driven, required driver to take the most commercially reasonable route and offset any equipment operating costs due to a deviation in route against driver's earnings, penalized driver if he failed to meet pickup or delivery times, required driver to report daily, and required driver to obtain company approval before taking time off from work, evidence supported chancellor's findings that relationship was that of employer-employee. Boruff v. CNA Ins. Co., 795 S.W.2d 125, 1990 Tenn. LEXIS 277 (Tenn. 1990).

Independent contractor status did not place the defendant outside the purview of T.C.A. § 50-6-102 as the defendant was performing a non-delegable duty of the workers' compensation carrier when it failed to pay plaintiff's claim. Davis v. Alexsis, Inc., 2 S.W.3d 228, 1999 Tenn. App. LEXIS 203 (Tenn. Ct. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 449 (Tenn. Sept. 13, 1999).

3. —Principal Contractor.

Generally, an owner is not considered a principal contractor. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

A firm that undertakes work for an entity other than itself may be a principal contractor for purposes of T.C.A. § 50-6-113, regardless of whether it is the owner. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

If the work is not undertaken for another, an owner may be a principal contractor if he undertakes direct supervisory control of the work of another contractor's employee. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

An owner who acts as the general contractor on his own project and does not immediately control the work of the subcontractor's employees is a principal contractor under T.C.A. § 50-6-113. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

Where a business enterprise undertakes to act as its own general contractor and contracts directly with subcontractors for various phases of construction on its own premises, such business enterprise is subject to the liability imposed by the worker's compensation law upon general contractors and, consequently, is entitled to the immunities conferred by the same law. Fugunt v. Tennessee Valley Authority, 545 F. Supp. 977, 1982 U.S. Dist. LEXIS 14126 (E.D. Tenn. 1982).

Telephone company was deemed a principal contractor. Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 1985 Tenn. LEXIS 591 (Tenn. 1985).

To determine whether an owner is acting as its own principal contractor, the following factors are considered: (1) Right to control the conduct of work; (2) Right of termination; (3) Method of payment; (4) Whether alleged employee furnished his own helpers; (5) Whether alleged employee furnishes his own tools; and (6) Whether one is doing “work for another”. Mathis v. Bowater, Inc., 985 F.2d 277, 1993 U.S. App. LEXIS 1895 (6th Cir. Tenn. 1993).

Owner of development property was a principal contractor at the time of claimant's injury. Brown v. Canterbury Corp., 844 S.W.2d 134, 1992 Tenn. LEXIS 609 (Tenn. 1992).

A company or other business is considered a principal contractor if the work being performed by a subcontractor's employee is part of the regular business of the company or is the same type of work usually performed by the company's employee. Murray v. Goodyear Tire & Rubber Co., 46 S.W.3d 171, 2001 Tenn. LEXIS 418 (Tenn. 2001).

Even if a company contracts out work other than the type of work usually performed by its employees, that company may nevertheless be considered a principal contractor based on the right of control over the conduct of the work and over the employees of the subcontractor. Murray v. Goodyear Tire & Rubber Co., 46 S.W.3d 171, 2001 Tenn. LEXIS 418 (Tenn. 2001).

4. Application.

This statute applies only in cases where injury occurred on, or about the premises on which the principal contractor has undertaken to execute work, or which are otherwise under his control or management. Siskin v. Johnson, 151 Tenn. 93, 268 S.W. 630, 1924 Tenn. LEXIS 47 (1925).

For this section to be applicable, there must be: (1) A relationship between the injured employee and the principal, or intermediate contractors, or subcontractors; and (2) An injury occurring “on, in or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management.” International Harvester Co. v. Sartain, 32 Tenn. App. 425, 222 S.W.2d 854, 1948 Tenn. App. LEXIS 129 (Tenn. Ct. App. 1948).

This section has no application to third parties but is limited to principal or intermediate contractor or subcontractor. Pierce v. United States, 142 F. Supp. 721, 1955 U.S. Dist. LEXIS 2165 (D. Tenn. 1955), aff'd, 235 F.2d 466, 1956 U.S. App. LEXIS 3887 (6th Cir. Tenn. June 29, 1956); Cradic v. Eastman Kodak Co., 202 F. Supp. 590, 1962 U.S. Dist. LEXIS 4760 (E.D. Tenn. 1962).

The injured employee need not be an employee of the principal contractor in order to subject such principal to liability if he is an employee of any subcontractor on the project. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960).

The term principal contractor does not generally include a corporation which has hired independent contractors to perform specialized work in construction of an addition to the corporation's plant. Chappell v. Olin-Mathieson Chemical Corp., 305 F. Supp. 544, 1969 U.S. Dist. LEXIS 10053 (E.D. Tenn. 1969).

Where painter contracted with textile dyeing company to paint smoke stack of plant for specified amount with painter to use his own equipment except paint and to have complete control of job and record did not indicate that dyeing company engaged in such maintenance operations itself, dyeing company was not a principal contractor under this section so as to be liable for compensation to employee of painter who was injured while painting smoke stack. Hendrix v. Ray-Ser Dyeing Co., 224 Tenn. 690, 462 S.W.2d 483, 1970 Tenn. LEXIS 394 (1970).

This section did not make principal contractor of project in New Mexico liable under the Tennessee Workers' Compensation Law to employee of subcontractor who hired employee in Tennessee for work on New Mexico project where principal contractor was a nonresident of Tennessee, although it did business in Tennessee. Smith v. Rockwell International Corp., 581 S.W.2d 954, 1979 Tenn. LEXIS 441 (Tenn. 1979).

T.C.A. § 50-6-113 extends the duties and immunities of an employer to entities other than an employee's immediate employer. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

Although there are cases preceding the 1976 amendment to T.C.A. § 50-6-106(1) holding T.C.A. § 50-6-113, the principal contractor liability provision, applicable to the contract trucking situation, the 1976 amendment, removing common carriers from consideration as the statutory employer of an owner-operator or leased-operator, makes these cases and the principal contractor liability theory inapplicable to such situations. Long v. Stateline Systems, Inc., 738 S.W.2d 622, 1985 Tenn. LEXIS 542 (Tenn. 1985).

The five-employee limitation for workers' compensation liability was not applicable to principal contractor liable because subcontractor failed to secure workers' compensation insurance. Brown v. Canterbury Corp., 844 S.W.2d 134, 1992 Tenn. LEXIS 609 (Tenn. 1992).

In a personal injury case in which a worker sued a company and the company moved for summary judgment, arguing that the worker's suit was precluded by the principal contractor and exclusivity provisions of Tennessee's Workers'  Compensation Law, the worker unsuccessfully argued that his employer, not the company, retained the complete authority to control his work and that the company could not be his statutory employer. Bray v. TVA, 742 F. Supp. 2d 911, 2010 U.S. Dist. LEXIS 110222 (W.D. Tenn. Sept. 24, 2010).

5. Employees Not Entitled to Invoke Section.

The statute cannot be invoked by an employee of one who is neither “principal nor intermediate contractor.” Odom v. Sanford & Treadway, 156 Tenn. 202, 299 S.W. 1045, 1927 Tenn. LEXIS 104 (1927).

6. Employees of Independent Contractors.

Under this section, principal contractors are made liable for injuries sustained by employees of subcontractors arising out of and in the course of their employment, whether such subcontractors are independent contractors or otherwise, provided that, at the time of the injury, the employee was engaged upon the subject matter of the general contract, and the injury occurs on, in or about premises under the control or management of the principal contractor. Williams v. Buchanan, 149 Tenn. 639, 261 S.W. 660, 1923 Tenn. LEXIS 120 (1924).

Where one contracting to build a state highway contracted with an independent subcontractor to quarry stone in a state quarry, which had been turned over to him, retaining no control of the manner of quarrying, except to supply a fireman, for compensation, to operate a state drill when necessary, an employee of the subcontractor can recover from the principal contractor compensation for injury. Williams v. Buchanan, 149 Tenn. 639, 261 S.W. 660, 1923 Tenn. LEXIS 120 (1924).

Defendants who engaged an independent contractor to unload car wheels, and who had not contracted to do such work for another, were not “principal contractors,” within this section, making the principal contractors liable for compensation to their subcontractor's employees, and were not liable to independent contractor's employee. Siskin v. Johnson, 151 Tenn. 93, 268 S.W. 630, 1924 Tenn. LEXIS 47 (1925).

Under this section, the general or principal contractor is liable for compensation for an injury, occurring under the conditions stated, to any employee of his subcontractor even though the latter was an independent contractor. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960).

Where plaintiff, a maintenance mechanic, had suffered chronic lymphocytic leukemia, allegedly from exposure to radioactive and toxic substances and materials, and was shown by the record to be an employee of an independent contractor conducting the Oak Ridge operations of the atomic energy commission, he was not limited to remedies under Tennessee Workers' Compensation Law but could maintain common law action against United States as third party tort-feasor. Mahoney v. United States, 216 F. Supp. 523, 1962 U.S. Dist. LEXIS 6118 (E.D. Tenn. 1962).

7. Employees of Servants.

A, employed to cut and haul timber under the directions and supervision of his employer, being an employee and not an independent contractor, his employer was liable for death in course of employment of an employee hired and paid by A. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924).

8. Liability of Principal Contractor.

Contractor who employed five persons was liable for compensation to injured employee of subcontractor who employed only four persons. Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564, 1935 Tenn. LEXIS 46 (1935).

Partnership was liable as principal contractor for injuries to servant of a subcontractor of the partnership, and it was wholly immaterial that the partnership was contracting for work to be done for and on behalf of a member of the partnership. Wood v. Dean, 194 Tenn. 663, 254 S.W.2d 751, 1953 Tenn. LEXIS 287 (1953).

Builder who was engaged in construction of a number of houses for others, including the one in which employee of subcontractor was injured, was a “principal contractor” within the meaning of this section even though title to lot on which the house was being constructed was held in name of himself and his wife. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960).

Under this section, the principal contractors are made liable for injuries sustained by employees of subcontractors arising out of and in the course of their employment, whether such subcontractors are independent contractors or otherwise, provided at the time of the injury the employee was engaged upon the subject-matter of the general contract and the injury occurs on, in or about the premises under the management of the principal contractor. Bowling v. Whitley, 208 Tenn. 657, 348 S.W.2d 310, 1961 Tenn. LEXIS 337 (1961).

General contractor was liable under the statute for injuries suffered by employee of subcontractor in course of employment where subcontractor did not have five employees and was not subject to statute. Bowling v. Whitley, 208 Tenn. 657, 348 S.W.2d 310, 1961 Tenn. LEXIS 337 (1961).

Where defendant store employed plaintiff's firm to do certain jobs defendant, as owner of the premises, was not a principal contractor. Womble v. J. C. Penney Co., 431 F.2d 985, 1970 U.S. App. LEXIS 7337 (6th Cir. Tenn. 1970).

The principal contractor is liable for compensation for an injury to any employee of his subcontractor where the injury occurred on or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

Those provisions of the act making the principal contractor liable for injuries to a subcontractor's employee to the same extent as the immediate employer places primary liability on the principal contractor along with the subcontractor, and therefore the principal contractor is not a “third party” liable to a common law action by an employee of the subcontractor. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

Where (1) principal contractor, subcontractor and subcontractor's injured employee were all citizens of Tennessee, (2) contract of employment between employee and subcontractor was executed in Tennessee, (3) both principal contractor and subcontractor had complied with Tennessee Workers' Compensation Law and (4) employee was injured in another state under circumstances which would have been compensable in Tennessee, Tennessee Workers' Compensation Law provided exclusive remedy in courts of Tennessee, and suit against principal contractor based on common law negligence would be barred if Tennessee Workers' Compensation Law was pleaded as a defense. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

Where a business enterprise undertakes to act as its own general contractor and contracts directly with subcontractors for various phases of construction on its own premises, such business enterprise is subject to the liability imposed by this section on general contractors and consequently is entitled to the same immunities. Carpenter v. Hooker Chemical & Plastics Corp., 553 S.W.2d 356, 1977 Tenn. App. LEXIS 286 (Tenn. Ct. App. 1977).

Where a business enterprise undertakes to act as its own general contractor and contracts directly with subcontractors for various phases of construction on its own premises, the enterprise is subject to the liability imposed by the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., upon general contractors and consequently is entitled to the immunities conferred by the same law. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

Taking together T.C.A. §§ 50-6-108 and 50-6-113, tort recovery is barred against a principal contractor. Posey v. Union Carbide Corp., 510 F. Supp. 1143, 1981 U.S. Dist. LEXIS 11528 (M.D. Tenn. 1981), aff'd, 705 F.2d 833, 1983 U.S. App. LEXIS 28662 (6th Cir. Tenn. 1983).

Inasmuch as the prime contractor is liable, under T.C.A. § 50-6-113, to the same extent as the immediate employer, it is isolated from any common law claim brought by an employee of its subcontractor if that employee received workers' compensation through the subcontractor. Manning v. Rentenbach Engineering Co., 625 S.W.2d 718, 1981 Tenn. App. LEXIS 506 (Tenn. Ct. App. 1981).

Having undertaken to be its own principal contractor, corporation was liable for payment of worker's compensation benefits to subcontractor's direct employee, since worker's compensation coverage was not provided by the subcontractor. Acklie v. Carrier, 785 S.W.2d 355, 1990 Tenn. LEXIS 69 (Tenn. 1990).

T.C.A. § 50-6-113(a) requires that a principal contractor be held liable for the uninsured work-related injuries of its subcontractor's employees, even though it is not required to provide workers' compensation coverage for its own employees. Brown v. Canterbury Corp., 844 S.W.2d 134, 1992 Tenn. LEXIS 609 (Tenn. 1992).

9. —Tort Immunity.

Principal contractor liable under T.C.A. § 50-6-113 is immune to tort actions of injured employee to the same extent as the subcontractor. Mathis v. Bowater, Inc., 985 F.2d 277, 1993 U.S. App. LEXIS 1895 (6th Cir. Tenn. 1993).

Owner of project site was acting as a principal contractor, and was therefore immune to tort liability. Mathis v. Bowater, Inc., 985 F.2d 277, 1993 U.S. App. LEXIS 1895 (6th Cir. Tenn. 1993).

Employee, Tennessee resident who was injured in Texas, could not pursue common law tort claims against a general contractor or a co-worker as Tennessee workers'  compensation benefits had been awarded under T.C.A. § 50-6-115; exclusivity provision barred the claims under T.C.A. § 50-6-108 because the employer as a subcontractor had provided workers'  compensation insurance under T.C.A. § 50-6-113. Scott v. AMEC Kamtech, Inc., 583 F. Supp. 2d 912, 2008 U.S. Dist. LEXIS 73662 (E.D. Tenn. Sept. 24, 2008).

In a personal injury case in which a worker, who had been employed by a subcontractor to a general contractor, appealed a district court's entry of summary judgment in favor of the general contractor, under T.C.A. § 50-6-108(a), the Tennessee Workers'  Compensation Act provided the worker with his exclusive remedy, the general contractor was immune under T.C.A. § 50-6-113 to the same extent as the worker's employer, and T.C.A. § 50-6-115 and was relevant to the case. Scott v. AMEC Kamtech, Inc., 412 Fed. Appx. 818, — F.3d —, 2011 U.S. App. LEXIS 3758, 2011 FED App. 111N (6th Cir.).

10. —Election of Coverage.

The filing requirement of T.C.A. § 50-6-113(c) is merely directory, and an election may be accomplished by substantial compliance with the workers' compensation statute. Presley v. Bennett, 860 S.W.2d 857, 1993 Tenn. LEXIS 295 (Tenn. 1993).

Where contractor and subcontractor agreed to be bound by the workers' compensation law, and premiums were deducted from subcontractor's compensation for that purpose, the parties substantially complied with the statutory election provision, despite their failure to file with the department of labor. Presley v. Bennett, 860 S.W.2d 857, 1993 Tenn. LEXIS 295 (Tenn. 1993).

11. Premises on Which Principal Contractor Has Undertaken to Work.

Where truck driver suffered fatal accident on public highway while operating truck leased by motor line from independent contractor and motor line was principal contractor having use and control of highways to extent necessary for performance of hauling contract with tobacco company, death of driver was compensable under Workers' Compensation Law requiring that injury occur on or about “premises” on which principal contractor has undertaken to work. Davis v. J & B Motor Lines, 193 Tenn. 233, 245 S.W.2d 769, 1951 Tenn. LEXIS 351 (1951).

Partnership engaged in real estate development was principal contractor and liable for compensation to employee of independent contractor hired by partnership to grade property held in name of individual partner where employee was injured across the street from the property of partnership as he was removing bulldozer from tractor-trailer preparatory to grading. Wood v. Dean, 194 Tenn. 663, 254 S.W.2d 751, 1953 Tenn. LEXIS 287 (1953).

Truck driver who operated truck leased to another transport company who had made delivery and then executed lease to second trucking company rather than return to home base empty, and was injured was entitled to benefits from owner as well as second leasing company, because deviation benefited both employers. Herron v. Fletcher, 503 S.W.2d 84, 1973 Tenn. LEXIS 428 (Tenn. 1973).

Trucking lessees are treated as prime contractors and subcontractors and the duty and obligation flows to the benefit of the injured employee from both contractor and subcontractor. Herron v. Fletcher, 503 S.W.2d 84, 1973 Tenn. LEXIS 428 (Tenn. 1973).

12. Recovery by Principal Contractor against Subcontractor.

Where the general contractor on a construction project sublet the steel work to one subcontractor and the brick work to another subcontractor and a worker of the steel subcontractor was injured by a brick falling on him for which he properly recovered compensation from the general contractor, the general contractor could bring suit against the brick subcontractor to recover the amount he had paid the worker. Vandergriff v. Willett, 24 Tenn. App. 29, 137 S.W.2d 957, 1939 Tenn. App. LEXIS 7 (Tenn. Ct. App. 1939).

Declaration alleging that general contractor's insurance carrier paid contractor's employee worker's compensation benefits but that employee was actually loaned to subcontractor at the time of injury and that contractor's carrier was entitled to recover compensation payments from subcontractor's carrier stated cause of action for indemnity or contribution and statute of limitation provided by § 28-3-108 governed rather than one year period provided by § 50-6-203. Travelers Ins. Co. v. Fidelity & Casualty Co., 219 Tenn. 244, 409 S.W.2d 175, 1966 Tenn. LEXIS 522 (1966).

The principal contractor has the statutory right to proceed in its own name for indemnification against the party primarily liable for compensation, having paid an obligation for which it was secondarily liable as a “statutory employer” under the statute. Tolley v. General Acci., Fire & Life Ins. Corp., 584 S.W.2d 647, 1979 Tenn. LEXIS 462 (Tenn. 1979).

13. Suit at Common Law.

Under this section the primary contractor and intermediate contractors are primarily liable to injured employees of the subcontractor and for that reason cannot be held to be “third parties” so as to be liable to suit at common law for injuries to such employees. Adams v. Hercules Powder Co., 180 Tenn. 340, 175 S.W.2d 319, 1943 Tenn. LEXIS 21, 151 A.L.R. 1352 (1943).

Employee of a principal contractor could sue a subcontractor at common law for injuries received while working on the premises covered by the principal contract as a result of negligence of employee of subcontractor. Olsen v. Sharpe, 191 Tenn. 503, 235 S.W.2d 11, 1950 Tenn. LEXIS 464 (1950).

Ownership of lot by builder of house and his wife did not exempt such builder from liability under this section as a principal contractor, and such builder was not subject to personal injury action by employee of subcontractor for injuries received in the course of employment. Billings v. Dugger, 50 Tenn. App. 403, 362 S.W.2d 49, 1962 Tenn. App. LEXIS 155 (Tenn. Ct. App. 1962).

Where under the contract between defendant and plaintiff's immediate employer the latter furnished men to work under the direction and control of defendant's representatives reconstructing generating station, plaintiff worker, having collected compensation from his immediate employer's insurance carrier for injuries suffered on the reconstruction project, must be treated and considered as an employee of defendant and cannot be permitted to sue his ultimate employer at common law. Clower v. Memphis Light, Gas & Water Div., 54 Tenn. App. 716, 394 S.W.2d 718, 1965 Tenn. App. LEXIS 288 (Tenn. Ct. App. 1965).

Employee of subcontractor of contractor with whom city had contracted to extend city's electrical distribution system who had received workers' compensation for injury on the job was not barred from suing city for alleged negligence where city was not liable for workers' compensation. Jones v. Dyersburg, 59 Tenn. App. 354, 440 S.W.2d 809, 1967 Tenn. App. LEXIS 261 (Tenn. Ct. App. 1967).

14. Joinder of Contractor and Subcontractor.

Under the provisions of this section and § 20-1-108, an injured employee of a subcontractor may join his immediate employer and the principal contractor in the same suit. P. H. Reynolds & Co. v. McKnight, 177 Tenn. 228, 148 S.W.2d 357, 1940 Tenn. LEXIS 31 (1941).

Where employee of second subcontractor was injured, the primary liability would rest upon the immediate employer, but under the provisions of this section both subcontractors and the primary contractor may be jointly and severally liable and where, as in this case, the subcontractor employing the worker was not subject to the workers' compensation law because not having five employees, and the judgment was rendered jointly and severally against the primary contractor and the first subcontractor, and such first subcontractor paid the judgment he could not recover from the general contractor for contribution, although if the general contractor had paid the judgment he could have recovered against the subcontractor for contribution. Tayloe Paper Co. v. W. F. Jameson Constr. Co., 211 Tenn. 232, 364 S.W.2d 882, 1963 Tenn. LEXIS 345 (1963).

15. Recovery from Contractor Bars Recovery from Subcontractor.

Where plaintiff operator of wobble-wheel equipment was employed by Cooper, who leased equipment and operator to defendant, and plaintiff was injured while performing work at the direction and under the control of defendant, plaintiff was loaned employee of defendant and defendant became liable to plaintiff for compensation benefits if plaintiff was injured, plaintiff being limited under workers' compensation law to one recovery for injury, either from defendant or Cooper, thus where plaintiff had already recovered compensation from Cooper he could not under common law action for damages recover from defendant. Cradic v. Eastman Kodak Co., 202 F. Supp. 590, 1962 U.S. Dist. LEXIS 4760 (E.D. Tenn. 1962).

16. Recovery from Subcontractor Bars Recovery from Contractor.

Where an employee of a subcontractor recovered all the workers' compensation benefits to which he was entitled from the insurer of his employer, the exclusive remedy provision of T.C.A. § 50-6-108 barred an action in tort for personal injuries brought by the employee against the contractor. Campbell v. Dick Broadcasting Co., 883 S.W.2d 604, 1994 Tenn. LEXIS 254 (Tenn. 1994).

17. Liability of Parties.

Question of who was primarily liable to employee of general contractor loaned to subcontractor at time of injury was question of fact dependent on whose work the employee was engaged in at time of injury. Travelers Ins. Co. v. Fidelity & Casualty Co., 219 Tenn. 244, 409 S.W.2d 175, 1966 Tenn. LEXIS 522 (1966).

The Workers' Compensation Law does not determine, as between contractors and subcontractors, who is primarily liable, as that determination must be made on equitable principles. Travelers Ins. Co. v. Fidelity & Casualty Co., 219 Tenn. 244, 409 S.W.2d 175, 1966 Tenn. LEXIS 522 (1966).

Where owner of a fleet of trucks leased them to a trucking company for shipments from Tennessee to other parts of the country, the duty and obligations flow to the benefit of an injured employee from both the owner and the lessee as prime contractor and subcontractor respectively. Herron v. Fletcher, 503 S.W.2d 84, 1973 Tenn. LEXIS 428 (Tenn. 1973).

Although the father supervised the construction of his daughter's residence and therefore qualified under T.C.A. § 50-6-113 as “a person engaged in the construction industry,” who was required to carry workers' compensation insurance, the father fell within the ownership exemption provided in former § 50-6-113(f)(1) because he was acting as his daughter's uncompensated agent and thus was not subject to liability for the injuries sustained by an employee of a subcontractor working on the construction. Bostic v. Dalton, 158 S.W.3d 347, 2005 Tenn. LEXIS 1 (Tenn. 2005).

Employer was not entitled to assert the comparative fault of the general contractor or subcontractor as to the employee's injuries but was entitled to argue that the contractor and subcontractor were the sole cause in fact of the employee's injuries; the trial court's jury instruction properly instructed the jury on the employer's cause-in-fact defense. Troup v. Fischer Steel Corp., 236 S.W.3d 143, 2007 Tenn. LEXIS 742 (Tenn. Aug. 31, 2007).

Insured was liable to insurers for workers'  compensation premiums for physical therapists with whom the insured contracted under a risk of loss provision in the parties'  insurance contract because: (1) the clause did not only apply when T.C.A. § 50-6-113 might apply; and (2) the insurers had to defend any suit in which a therapist sought workers'  compensation from the insured, even if only to find the therapist's status as an employee or independent contractor, so the insured was liable for premiums for shifting this litigation risk to the insurers. Cont'l Cas. Co. v. Theraco, Inc., 437 S.W.3d 841, 2014 Tenn. App. LEXIS 16 (Tenn. Ct. App. Jan. 14, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 451 (Tenn. May 28, 2014).

18. Statutory Employer.

Under contract of employment whereby employer simply agreed to pay one for hauling lumber according to the amount hauled, with no relinquishment by the employer of the right to control the means and method by which the hauling was done, or to terminate the employment, the hauler was an employee within meaning of this section and not an independent contractor. Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W.2d 860, 1928 Tenn. LEXIS 119 (1928).

The relationship of employer and employee arises where the former selects the latter, and may discharge him and may order not only that the work shall be done but also the mode of its performance. Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

Where defendant had control over the nature of the dimensions of the work and the order of completion of the work, and the right to terminate the contract, defendant had more control than was necessary merely to insure that the end result conformed to the plans and specifications of the contract, indicating that defendant was a statutory employer. Barber v. Purina, 825 S.W.2d 96, 1991 Tenn. App. LEXIS 605 (Tenn. Ct. App. 1991).

The two tests employed to determine whether an employer-employee relationship is that of a statutory employer or an independent contractor are: (1) Whether the work being performed by the contractor in question is the same type of work usually performed by the company or is part of the regular business of the company; and (2) Whether the company has the right to control employees of the contractor. Barber v. Purina, 825 S.W.2d 96, 1991 Tenn. App. LEXIS 605 (Tenn. Ct. App. 1991).

Company was not a principal contractor under T.C.A. § 50-6-113 and therefore was not a statutory employer; the company was not liable for workers' compensation benefits, where the company neither possessed nor exercised any control over subcontractor's employees or their conduct of the work. Murray v. Goodyear Tire & Rubber Co., 46 S.W.3d 171, 2001 Tenn. LEXIS 418 (Tenn. 2001).

Administratrix was not precluded from pursuing tort claims against the general contractor under the exclusive remedy provisions of the Tennessee Workers'  Compensation Law, T.C.A. § 50-6-101 et seq., because if the administratrix's contention that the company that the deceased worked for was not a subcontractor of the general contractor, but a separate general contractor was true, the administratrix could have conceivably pursued a claim against a separate party not protected by the exclusive remedy provisions. Therefore, the court could not have concluded, based on the bare allegations of the general contractor, that it was the statutory employer of the deceased and thus insulated by the Tennessee Workers'  Compensation Law. Medrano v. MCDR, Inc., 366 F. Supp. 2d 625, 2005 U.S. Dist. LEXIS 15074 (W.D. Tenn. 2005).

Trial court properly granted summary judgment to a general contractor's auto insurer on a subrogee's negligence claim because the injured employee and a co-worker, who was also the thyroid-party tortfeasor, were employees of the subcontractor, the injured employee and the co-worker were acting in the course and scope of their employment for the subcontractor at the time of the injury, and, thus, the general contractor was the injured employee's statutory employer. T.C.A. § 50-6-113. Erie Ins. Exch. v. Columbia Nat'l Ins. Co., — S.W.3d —, 2013 Tenn. App. LEXIS 60 (Tenn. Ct. App. Jan. 30, 2013), appeal denied, Erie Ins. Exch. v. Columbia Nat'l Ins. Co., — S.W.3d —, 2013 Tenn. LEXIS 673 (Tenn. Aug. 13, 2013).

Court concluded that it improvidently granted permission for the appeal under T.R.A.P. 9. The trial court skipped over the threshold issue of whether appellant's immediate employer was a subcontractor of appellee without addressing it, which was a necessary prerequisite to determining if the employer was a statutory employer, and the court declined to decide the issue since the court, in a Rule 9 interlocutory appeal, could only consider issues that were actually decided by the trial court. Blackwell v. Comanche Constr., Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 251 (Tenn. Ct. App. Apr. 15, 2013).

Collateral References.

Construction and effect of specific provisions of Workers' Compensation Acts in relation to employees of independent contractors or subcontractors. 68 A.L.R. 872.

General or special employer, liability of. 3 A.L.R. 1181, 34 A.L.R. 768, 58 A.L.R. 1467, 152 A.L.R. 816.

Trade, business, or occupation of principal employer, what work of independent contractor or subcontractor is so related to, as to satisfy condition in that regard of provisions of Workers' Compensation Act making employer responsible to employees of contractor. 150 A.L.R. 1214.

50-6-114. Supremacy of chapter — Setoffs for payments by disability plan.

  1. No contract or agreement, written or implied, or rule, regulation or other device, shall in any manner operate to relieve any employer, in whole or in part, of any obligation created by this chapter, except as provided in subsection (b).
  2. Any employer may set off from temporary total, temporary partial, permanent partial and permanent total disability benefits any payment made to an employee under an employer funded disability plan for the same injury; provided, that the disability plan permits such an offset. The offset from a disability plan may not result in an employee's receiving less than the employee would otherwise receive under this chapter. In the event that a collective bargaining agreement is in effect, this subsection (b) shall be subject to the agreement of both parties.

Acts 1919, ch. 123, § 16; Shan. Supp., § 3608a165; Code 1932, § 6867; T.C.A. (orig. ed.), § 50-916; Acts 1996, ch. 919, § 1.

Law Reviews.

When Telling the Truth Costs You Your Job: Tennessee's Employment-at-Will Doctrine and the Need for Change (Chad E. Wallace), 39 No. 4 Tenn. B.J. 18 (2003).

1985 Tennessee Survey: Selected Developments in Tennessee Law, 53 Tenn. L. Rev. 415 (1986).

NOTES TO DECISIONS

1. Constitutionality.

The Workers' Compensation Act was not invalid as denying employee the right to contract and failing to express such subject in the title, since both the title and body of the act as originally enacted declared it to be elective and no right was taken away from an employee electing not to accept the provisions of the act. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

The amendment that permits offsets against workers' compensation benefits for payments made to an employee under an employer-funded disability plan is not retroactive and the statute in effect at the date of the worker's injury governs the rights of the parties. Nutt v. Champion Int'l Corp., 980 S.W.2d 365, 1998 Tenn. LEXIS 716 (Tenn. 1998).

2. Employee Becoming Member of Association.

Where plaintiff was paid hourly wages before she signed a paper becoming a member of association, and was paid thereafter “merely for the purpose of subsistence,” as stated in paper she signed, employer was not relieved from liability for her injury under Workers' Compensation Law. Schroader v. Rural Educational Ass'n, 33 Tenn. App. 36, 228 S.W.2d 491, 1950 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1950).

3. Reduction of Compensation Benefits.

In the absence of a contract or statute permitting a setoff or credit, an employer is not entitled to a reduction of compensation benefits. Brown v. Western Electric Co., 646 S.W.2d 912, 1983 Tenn. LEXIS 621 (Tenn. 1983).

No set-off of short-term disability plan benefits against statutory permanent disability benefits may be imposed, regardless of the provisions of the employer-funded disability plan. Cantrell v. Electric Power Bd., 811 S.W.2d 84, 1991 Tenn. LEXIS 198 (Tenn. 1991); McCaleb v. Saturn Corp., 910 S.W.2d 412, 1995 Tenn. LEXIS 629 (Tenn. Special Workers' Comp. App. Panel 1995), review denied, 1995 Tenn. LEXIS 664 (Tenn. Nov. 2, 1995).

A judicially-imposed set-off of excess payments of short-term disability benefits is a “rule” which operates to relieve the employer of statutory liability for permanent disability benefits, in violation of T.C.A. § 50-6-114. Cantrell v. Electric Power Bd., 811 S.W.2d 84, 1991 Tenn. LEXIS 198 (Tenn. 1991).

The terms of T.C.A. § 50-6-114 prohibit enforcement of provisions of disability plans or other contracts which purport to permit employers to set off excess supplemental payments of short-term disability benefits against the employer's statutory liability for permanent disability benefits. Cantrell v. Electric Power Bd., 811 S.W.2d 84, 1991 Tenn. LEXIS 198 (Tenn. 1991).

Employer was not entitled to offset payments made to an injured employee under an employer-provided long term disability plan from a workers' compensation award where the employee's injury predated the 1996 amendment to T.C.A. § 50-6-114(b) permitting such offsets; the amendment did not include a provision making it retroactive, and the amendment was neither remedial nor procedural. Nutt v. Champion Int'l Corp., 980 S.W.2d 365, 1998 Tenn. LEXIS 716 (Tenn. 1998).

Trial court erred in denying a set-off because the employer did not knowingly, willfully, or intentionally force the employee to use his health and disability insurance benefits in lieu of receiving workers'  compensation benefits. LaPradd v. Nissan N. Am., Inc., — S.W.3d —, 2016 Tenn. LEXIS 6, 2016 Tenn. LEXIS 6 (Tenn. Jan. 14, 2016).

4. Retaliatory Discharge.

A cause of action for retaliatory discharge, although not explicitly created by T.C.A. § 50-6-114, is necessary to enforce the duty of the employer, to secure the rights of the employee and to carry out the intention of the general assembly. Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 1984 Tenn. LEXIS 935 (Tenn. 1984), superseded by statute as stated in, Medley v. A. W. Chesterton Co., 912 S.W.2d 748, 1995 Tenn. App. LEXIS 584 (Tenn. Ct. App. 1995), superseded by statute as stated in, Fleming v. Sharp Mfg. Co. of Am., — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 103212 (W.D. Tenn. July 25, 2012); Thompson v. Cort Furniture Rental Corp., 797 F. Supp. 618, 1992 U.S. Dist. LEXIS 10083 (W.D. Tenn. 1992).

The decision allowing a successful plaintiff in a suit for retaliatory discharge to recover punitive damages was not applied in the case of first impression and was prospective only. Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 1984 Tenn. LEXIS 935 (Tenn. 1984), superseded by statute as stated in, Medley v. A. W. Chesterton Co., 912 S.W.2d 748, 1995 Tenn. App. LEXIS 584 (Tenn. Ct. App. 1995), superseded by statute as stated in, Fleming v. Sharp Mfg. Co. of Am., — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 103212 (W.D. Tenn. July 25, 2012).

Retaliatory discharge of an employee seeking worker's compensation benefits was a device under T.C.A. § 50-6-114. Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 1984 Tenn. LEXIS 935 (Tenn. 1984), superseded by statute as stated in, Medley v. A. W. Chesterton Co., 912 S.W.2d 748, 1995 Tenn. App. LEXIS 584 (Tenn. Ct. App. 1995), superseded by statute as stated in, Fleming v. Sharp Mfg. Co. of Am., — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 103212 (W.D. Tenn. July 25, 2012); Thompson v. Cort Furniture Rental Corp., 797 F. Supp. 618, 1992 U.S. Dist. LEXIS 10083 (W.D. Tenn. 1992).

Employee-at-will may be discharged without breach of contract for good cause, bad cause or no cause at all; thus, there is no action for retaliatory discharge for such employees. Harney v. Meadowbrook Nursing Center, 784 S.W.2d 921, 1990 Tenn. LEXIS 39 (Tenn. 1990), rehearing denied, — S.W.2d —, 1990 Tenn. LEXIS 95 (Tenn. Feb. 26, 1990).

No public policy was violated by the discharge of an employee-at-will following her testimony in an unemployment compensation case where the employer did not interfere with her testimony but there was a difference of opinion about whether the employee's testimony was truthful. Harney v. Meadowbrook Nursing Center, 784 S.W.2d 921, 1990 Tenn. LEXIS 39 (Tenn. 1990), rehearing denied, — S.W.2d —, 1990 Tenn. LEXIS 95 (Tenn. Feb. 26, 1990).

Action for retaliatory discharge under state law is preempted where plaintiffs' remedies lie within the parameters of the federal Surface Transportation Assistance Act of 1982, 49 U.S.C. App. § 2305. Watson v. Cleveland Chair Co., 789 S.W.2d 538, 1989 Tenn. LEXIS 523 (Tenn. 1989).

In retaliatory discharge case, employer was permitted to discharge an employee pursuant to a facially neutral absence control policy for absence caused by a work-related injury. Anderson v. Standard Register Co., 857 S.W.2d 555, 1993 Tenn. LEXIS 247 (Tenn. 1993), overruled, Perkins v. Metro. Gov't of Nashville & Davidson County, 380 S.W.3d 73, 2012 Tenn. LEXIS 512 (Tenn. Aug. 22, 2012), overruled, Todd v. Shelby County, 407 S.W.3d 212, 2012 Tenn. App. LEXIS 910 (Tenn. Ct. App. Dec. 27, 2012), overruled, Herrin v. Mr. Bult's, Inc., — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 52242 (M.D. Tenn. Apr. 11, 2013), overruled in part, Brasfield v. Martinrea Fabco Auto. Structures United States, Inc., — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 82818 (M.D. Tenn. June 12, 2013).

The following elements are found to establish a cause of action for discharge in retaliation for asserting a workers' compensation claim: (1) The plaintiff was an employee of the defendant at the time of the injury; (2) The plaintiff made a claim against the defendant for workers' compensation benefits; (3) The defendant terminated the plaintiff's employment; and (4) The claim for workers' compensation benefits was a substantial factor in the employer's motivation to terminate the employee's employment. Anderson v. Standard Register Co., 857 S.W.2d 555, 1993 Tenn. LEXIS 247 (Tenn. 1993), overruled, Perkins v. Metro. Gov't of Nashville & Davidson County, 380 S.W.3d 73, 2012 Tenn. LEXIS 512 (Tenn. Aug. 22, 2012), overruled, Todd v. Shelby County, 407 S.W.3d 212, 2012 Tenn. App. LEXIS 910 (Tenn. Ct. App. Dec. 27, 2012), overruled, Herrin v. Mr. Bult's, Inc., — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 52242 (M.D. Tenn. Apr. 11, 2013), overruled in part, Brasfield v. Martinrea Fabco Auto. Structures United States, Inc., — F. Supp. 2d —, 2013 U.S. Dist. LEXIS 82818 (M.D. Tenn. June 12, 2013).

An employee's action for retaliatory discharge was not allowed where he was discharged before he filed his workers' compensation claim and the retaliation was the withholding of severance benefits. Medley v. A. W. Chesterton Co., 912 S.W.2d 748, 1995 Tenn. App. LEXIS 584 (Tenn. Ct. App. 1995).

Employee's motion to remand a claim of alleged retaliatory discharge was granted because removal of a state civil action arising under the state workers'  compensation statute was prohibited under 28 U.S.C. § 1445(c), depriving the federal court of diversity jurisdiction under 28 U.S.C. § 1441(a), and the action necessarily required interpretation of T.C.A. § 50-6-114. Goin v. Bass Pro Outdoor World, LLC, 437 F. Supp. 2d 762, 2006 U.S. Dist. LEXIS 50761 (W.D. Tenn. 2006).

Employer was granted summary judgment on an employee's claim of retaliatory discharge where the person who had made the decision to terminate the employee did not have notice or knowledge of his neck injury, nor had the employee otherwise taken any action that would notified the employer that he was making a claim for workers'  compensation benefits, and the employee also failed to present evidence of a causal connection between a workers'  compensation claim and his termination. Morgan v. HTH Cos., — F. Supp. 2d —, 2011 U.S. Dist. LEXIS 137165 (E.D. Tenn. Nov. 29, 2011).

5. Determination of Status.

The provision in a contract that purported to establish that a certain entity was an independent contractor was not dispositive; whether one is an employee or an independent contractor is one of law for the courts, and the parties cannot by contract take this responsibility from the court. Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 1985 Tenn. LEXIS 591 (Tenn. 1985).

6. Supplemental Disability Benefits.

No public policy or statute is offended by the provision of supplemental disability benefits by employers. Simpson v. Frontier Community Credit Union, 810 S.W.2d 147, 1991 Tenn. LEXIS 181 (Tenn. 1991).

The intentions and expectations of the parties as expressed in an employer-funded disability plan contract should control, and to the extent Lovell v. Metropolitan Government, 696 S.W.2d 2, 1985 Tenn. LEXIS 540 (Tenn. 1985), requires judicial imposition of a set-off where the parties have not so agreed, that case is overruled. Simpson v. Frontier Community Credit Union, 810 S.W.2d 147, 1991 Tenn. LEXIS 181 (Tenn. 1991).

7. Release Agreements.

Release agreement between the parties following employee's previous work related injury, to the extent that it was intended to defeat the present claim, violated public policy and was unenforceable. Fink v. Caudle, 856 S.W.2d 952, 1993 Tenn. LEXIS 378 (Tenn. 1993).

Waiver provision in the settlement agreement between the employee and the employer that waived the employee's reconsideration rights was contrary to T.C.A. § 50-6-114(a) since it effectively relieved the employer of a portion of its obligations under the Workers'  Compensation Law; the waiver provision, therefore, was invalid under the plain language of the statute and enforcement of the prospective waiver provision would thwart the policy underlying an employee's right to seek reconsideration of workers'  compensation benefits. Overman v. Altama Delta Corp., 193 S.W.3d 540, 2006 Tenn. LEXIS 193 (Tenn. 2006).

Trial court erred in granting the employer's motion for summary judgment as the claimant's 2011 asbestosis-related lung disease claim was not barred by res judicata because there was no mention of asbestos or asbestos-related disease in the 2003 complaint or the 2005 order; the evidence provided by the employer did not show with certainty that the existence or cause of asbestos-related disease was at issue in the prior lawsuit; an agreement to prospectively extinguish or reduce the employer's obligations under the Workers'  Compensation Law violated public policy and was unenforceable; and there was no proof of compliance with the requirement for waiver of compensation for any aggravation of the claimant's lung condition by his work. Segroves v. Union Carbide, — S.W.3d —, 2015 Tenn. LEXIS 945 (Tenn. Dec. 10, 2015), aff'd, — S.W.3d —, 2015 Tenn. LEXIS 946 (Tenn. Dec. 10, 2015).

8. Retaliatory Failure to Hire.

Job applicant does not have a cause of action under the Tennessee Workers'  Compensation Act against a prospective employer for failure to hire if the prospective employer failed to hire the job applicant because that applicant had filed, or is likely to file, a workers'  compensation claim against a previous employer; moreover, the Second Injury Fund does not show a legislative intent to allow job applicants who have been previously injured to sue prospective employers for failure to hire. Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 2015 Tenn. LEXIS 630 (Tenn. Aug. 21, 2015).

50-6-115. Extraterritorial application of chapter — Coverage of construction services providers.

  1. For purposes of this section, an employee is considered to be temporarily in a state working for an employer if the employee is working for such employee's employer in a state other than the state where such employee is primarily employed for no more than fourteen (14) consecutive days, or no more than twenty-five (25) days total, during a calendar year. This subsection (a) does not apply to construction services providers, as defined in § 50-6-901, performing work in this state.
    1. If an employee in this state who is subject to this chapter temporarily leaves this state incidental to the employee's employment and receives an accidental injury arising out of and in the course and scope of the employee's employment, the employee, or the employee's beneficiaries in the case of an injury that results in the employee's death, shall be entitled to the benefits of this chapter as if the employee was injured in this state.
    2. If an employee, while working outside the territorial limits of this state other than temporarily, suffers an injury on account of which the employee, or, in the event of the employee's death, the employee's dependents, would have been entitled to the benefits provided by this chapter had the injury occurred within this state, the employee, or in the event of the employee's death resulting from the injury, the employee's dependents, shall be entitled to the benefits provided by this chapter; provided, that at the time of the injury:
      1. The employment was principally localized within this state;
      2. The contract of hire was made in this state; or
      3. If at the time of the injury the injured worker was a Tennessee resident and there existed a substantial connection between this state and the particular employer and employee relationship.
    1. An employee from another state and the employee's employer are exempt from this chapter while the employee is temporarily in this state performing work for the employer if:
      1. The employer has furnished workers' compensation insurance coverage under the workers' compensation insurance or similar laws of the other state to cover the employee's employment while in this state;
      2. The extraterritorial provisions of this chapter are recognized in the other state; and
      3. Employees and employers who are covered in this state are likewise exempted from the application of the workers' compensation insurance or similar laws of the other state.
    2. The benefits under the workers' compensation insurance or similar laws of the other state, or other remedies under similar law, are the exclusive remedy against the employer for any injury, whether resulting in death or not, received by the employee while temporarily working for that employer in this state.
    3. A certificate from the duly authorized officer of the appropriate department of another state certifying that the employer of such other state is insured in that state and has provided extraterritorial coverage insuring employees while working in this state is prima facie evidence that the employer carries such workers' compensation insurance.
    4. Whenever in any appeal or other litigation the construction of the laws of another jurisdiction is required, the courts shall take judicial notice of such construction of the laws of the other jurisdiction.
    5. When an employee has a claim under the workers' compensation insurance laws of another state, territory, province, or foreign nation for the same injury or occupational disease as the claim filed in this state, the total amount of compensation paid or awarded under such other workers' compensation law shall be credited against the compensation due under this chapter.
    6. Subdivisions (c)(1)-(3) do not apply to construction services providers, as defined in § 50-6-901, performing work in this state.
    1. Any employer who is insured in this state for workers' compensation under this chapter, and who has extraterritorial coverage under this chapter, for their employees while such employees are temporarily working outside this state within the meaning of subsection (a) may obtain a certificate evidencing such coverage at the time that the application for certification is made from the commissioner of commerce and insurance.
    2. In order to obtain a certificate under subdivision (d)(1), an employer shall:
      1. File an application with the commissioner of commerce and insurance, on a form that is approved by the commissioner of commerce and insurance;
      2. Pay a filing fee to the department of commerce and insurance in the amount of one hundred dollars ($100). The commissioner of commerce and insurance may change the amount of the filing fee required by this subdivision (d)(2)(B) by promulgating a rule pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as necessary to ensure that the proceeds of such filing fees are sufficient to offset the cost of processing applications and issuing the certificates authorized by this subsection (d); and
      3. Submit to the commissioner of commerce and insurance a copy of the declaration page from the employer's workers' compensation insurance policy, or such proof as the commissioner of commerce and insurance may require to demonstrate that the employer is self insured for workers' compensation and the territorial limits of such coverage.
    3. The commissioner of commerce and insurance is authorized to issue a certificate that certifies that, at the time that the application for certification is made, the applicant employer in this state is insured for workers' compensation under this chapter, and that such employers have extraterritorial coverage under this chapter, for their employees while such employees are temporarily working outside this state within the meaning of subsection (a).
    1. A construction services provider, as defined in § 50-6-901, performing work in this state shall maintain workers' compensation insurance coverage throughout the duration of that work and must designate “Tennessee” in section 3A of a construction service provider's workers' compensation insurance policy or endorsement.
    2. A construction services provider who violates this subsection (e) is subject to a penalty issued by the administrator or administrator's designee of up to the greater of:
      1. One thousand dollars ($1,000); or
      2. One and one half (1.5) times the average yearly workers' compensation premium for the construction services provider based on the appropriate assigned risk plan advisory prospective loss cost and multiplier for the construction services provider as of the date of determination that the construction services provider performs work in this state and did not secure payment of compensation pursuant to this subsection (e).

Acts 1919, ch. 123, § 19; Shan. Supp., § 3608a168; Code 1932, § 6870; Acts 1975, ch. 85, § 1; 1976, ch. 389, § 1; T.C.A. (orig. ed.), § 50-917; Acts 2004, ch. 648, § 1; 2013, ch. 367, § 1; 2020, ch. 682, §§ 1-3.

Compiler's Notes. Acts 2013, ch. 367, § 2 provided that the act, which amended this section, shall apply to any claim filed on or after May 13, 2013, regardless of the date of the injury.

Acts 2020, ch. 682, § 7 provided that the act, which amended this section, applies to penalties assessed on or after June 15, 2020.

Amendments. The 2020 amendment added the last sentence to (a); and added (c)(6) and (e).

Effective Dates. Acts 2020, ch. 682, § 7, June 15, 2020.

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 4.

Law Reviews.

Workers' Compensation Outline (Paul Campbell III), 18 No. 3 Tenn. B.J. 11 (1982).

NOTES TO DECISIONS

1. Law Governing.

Law of the place of contract governs construction and determines legal obligations, though contract calls for work out of the state. Smith v. Van Noy Interstate Co., 150 Tenn. 25, 262 S.W. 1048, 1923 Tenn. LEXIS 60, 35 A.L.R. 1409 (1924); Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678, 1947 Tenn. LEXIS 407 (1947).

Since an action for an award of compensation is a suit upon a contract, the courts of this state should not undertake to administer the compensation law of another state where there is no machinery or agency in this state for enforcing such a contract. Davis v. Swift & Co., 175 Tenn. 210, 133 S.W.2d 483, 1939 Tenn. LEXIS 31 (1939).

Where an Illinois resident employed by an Illinois corporation which had qualified under the workers' compensation statutes of both Tennessee and Illinois was injured while working in Tennessee, such employee could have recovered under the statutes of either state. United States Casualty Co. v. Standard Acc. Ins. Co., 175 Tenn. 559, 136 S.W.2d 504, 1939 Tenn. LEXIS 75, 126 A.L.R. 876 (1940).

Where evidence was sufficient to support finding of chancellor that injury occurred in Tennessee under a Tennessee contract, such finding would not be disturbed. Brewer v. Pocahontas Fuel Co., 221 Tenn. 130, 425 S.W.2d 582, 1968 Tenn. LEXIS 452 (1968).

Employees hired in another state could maintain an action in Tennessee for benefits under the Tennessee Workers' Compensation Law where they incurred accidental injury while in the scope and course of their employment in Tennessee. Millican v. Liberty Mut. Ins. Co., 224 Tenn. 604, 460 S.W.2d 842, 1970 Tenn. LEXIS 362 (1970).

Dependents of Tennessee resident, employed and based in Alabama but killed in Tennessee, could assert claim under Tennessee statute. Argonaut Ins. Co. v. Vanatta, 539 S.W.2d 35, 1976 Tenn. LEXIS 571 (Tenn. 1976).

The fact that the employer was in Tennessee when he accepted an offer given by phone to work in Arkansas made Tennessee the place of contract of hire and brought into play the employer's extraterritorial liability under this statute when a work-related injury occurred. Tolley v. General Acci., Fire & Life Ins. Corp., 584 S.W.2d 647, 1979 Tenn. LEXIS 462 (Tenn. 1979).

Since the employment contract was not made in Tennessee, the entire period of employment was outside Tennessee, and the injury occurred outside Tennessee, the employee is not entitled to workers' compensation benefits under Tennessee law. Perkins v. BE&K, Inc., 802 S.W.2d 215, 1990 Tenn. LEXIS 486 (Tenn. 1990), rehearing denied, Perkins v. BE & K, Inc., — S.W.2d —, 1991 Tenn. LEXIS 74 (Tenn. Feb. 19, 1991).

2. Conflict of Laws.

Where an employee of a Tennessee corporation made his contract of employment in this state but was injured in course of employment in Ohio, a defense to a proceeding in the latter state under the Ohio compensation law does not preclude recovery there, where as construed by the Tennessee courts the statute does not preclude recovery under the laws of another state. Ohio v. Chattanooga Boiler & Tank Co., 289 U.S. 439, 53 S. Ct. 663, 77 L. Ed. 1307, 1933 U.S. LEXIS 189 (1933).

3. Pursuit of Claim in Another Jurisdiction.

Under certain circumstances, the pursuit of a compensation claim in another jurisdiction may preclude the filing of the same claim in the courts of Tennessee, especially where it results in an award or an approved settlement. Gray v. Holloway Constr. Co., 834 S.W.2d 277, 1992 Tenn. LEXIS 363 (Tenn. 1992).

A Tennessee employee who pursued benefits in the foreign state in which the injury occurred was barred by the doctrine of election of remedies from pursuing benefits in Tennessee for the same injury. Bradshaw v. Old Republic Ins. Co., 922 S.W.2d 503, 1996 Tenn. LEXIS 307 (Tenn. 1996).

4. Injuries Outside of State Included.

The statute provides for contractual relationship and includes injuries out of the state. Smith v. Van Noy Interstate Co., 150 Tenn. 25, 262 S.W. 1048, 1923 Tenn. LEXIS 60, 35 A.L.R. 1409 (1924); Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678, 1947 Tenn. LEXIS 407 (1947).

If an accident happens outside the state which would have entitled the employee to benefits if it had happened inside this state, the employee is entitled to compensation under the Tennessee statute unless otherwise expressly provided in the employment contract. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

Where (1) The principal contractor, subcontractor and subcontractor's injured employee were all citizens of Tennessee; (2) The contract of employment between employee and subcontractor was executed in Tennessee; (3) Both the principal contractor and subcontractor had complied with Tennessee Workers' Compensation Law; and (4) The employee was injured in another state under circumstances which would have been compensable in Tennessee, Tennessee Workers' Compensation Law provided exclusive remedy in courts of Tennessee and suit against principal contractor based on common law negligence would be barred if Tennessee Workers' Compensation Law was pleaded as a defense. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

5. Recovery in Other State as Bar to Suit.

A petitioner entitled to compensation under this statute, who procured recovery of compensation in another state where the injury occurred, cannot proceed to recover here. Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221, 1931 Tenn. LEXIS 131 (1931), rehearing denied, 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931), rehearing denied, Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931); Ohio v. Chattanooga Boiler & Tank Co., 289 U.S. 439, 53 S. Ct. 663, 77 L. Ed. 1307, 1933 U.S. LEXIS 189 (1933).

A widow's recovery of compensation for death of her husband in another state under compensation act affords good defense to proceeding in this state. Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221, 1931 Tenn. LEXIS 131 (1931), rehearing denied, 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931), rehearing denied, Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931).

Instituting proceedings in a foreign state to recover compensation for death of employee was a clear renunciation or disaffirmance of the contract of employment made in this state, which precluded claim of benefits of contract in subsequent suit in this state, and the election to disaffirm is irrevocable where petitioner has taken the benefit of the suit in the other state. Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221, 1931 Tenn. LEXIS 131 (1931), rehearing denied, 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931), rehearing denied, Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931).

Where contract of employment was made in Tennessee and plaintiff was employed principally in Tennessee but was injured on job in Virginia and he obtained worker's compensation benefits in Virginia under Virginia law, he could not thereafter obtain benefits for the same injury under Tennessee law. True v. Amerail Corp., 584 S.W.2d 794, 1979 Tenn. LEXIS 475 (Tenn. 1979).

6. Election of Benefits.

The circumstances of each case must be considered in determining whether the employee has made a binding election. The mere acceptance of benefits from another state does not constitute an election, but affirmative action to obtain benefits or knowing and voluntary acceptance of benefits from another state will be sufficient to establish a binding election. Perkins v. BE&K, Inc., 802 S.W.2d 215, 1990 Tenn. LEXIS 486 (Tenn. 1990), rehearing denied, Perkins v. BE & K, Inc., — S.W.2d —, 1991 Tenn. LEXIS 74 (Tenn. Feb. 19, 1991).

Where defendants made the decision to proceed under Virginia workers' compensation law, and plaintiff, without being given an opportunity to make a knowledgeable and informed choice, merely accepted the benefits which were tendered, plaintiff's actions were not sufficient to constitute a binding election which would preclude him from receiving benefits under Tennessee law. Hale v. Fraley's, Inc., 825 S.W.2d 690, 1992 Tenn. LEXIS 132 (Tenn. 1992).

Employee, Tennessee resident who was injured in Texas, could not pursue common law tort claims against a general contractor or a co-worker as Tennessee workers'  compensation benefits had been awarded under T.C.A. § 50-6-115; exclusivity provision barred the claims under T.C.A. § 50-6-108 because the employer as a subcontractor had provided workers'  compensation insurance under T.C.A. § 50-6-113. Scott v. AMEC Kamtech, Inc., 583 F. Supp. 2d 912, 2008 U.S. Dist. LEXIS 73662 (E.D. Tenn. Sept. 24, 2008).

7. Wrongful Rejection of Claim — Effect.

When the party primarily liable under the Tennessee Workers' Compensation Law wrongfully rejected an extraterritorial claim without offering to pay compensation under the Tennessee law and thus created, by its own act, the necessity that the principal contractor pay the extraterritorial compensation, the party primarily liable cannot use any defense based on the injured worker's election to first proceed extraterritorially. Tolley v. General Acci., Fire & Life Ins. Corp., 584 S.W.2d 647, 1979 Tenn. LEXIS 462 (Tenn. 1979).

8. Localization.

Although state residence is a factor to be considered in determining “localization,” it is not a controlling factor. Matthews v. St. Paul Property & Liability Ins., 845 S.W.2d 737, 1992 Tenn. LEXIS 575 (Tenn. 1992).

9. Nonresident Principal Contractor.

Fact that employee of subcontractor of project in New Mexico was a resident of Tennessee and entered into employment contract with such subcontractor in Tennessee, could not, under the provisions of § 50-6-113, make the principal contractor of the New Mexico project liable to such employee under the Tennessee Workers' Compensation Law, where such principal contractor was a nonresident of Tennessee, although it did business in Tennessee. Smith v. Rockwell International Corp., 581 S.W.2d 954, 1979 Tenn. LEXIS 441 (Tenn. 1979).

10. Contract of Hire.

Where employee's affidavit showed that a company representative stated to him that the company was going to be working in Covington, Virginia, and that as a result of the phone call he proceeded to Covington, Virginia, where “work papers” were signed, and the employee's work was confined to the site in Virginia where the injury occurred, the only event that happened in Tennessee was the employer's telephone call to the employee notifying him of available work at the project site in Virginia. Such notification does not constitute a contract of hire within the meaning of T.C.A. § 50-6-115. Perkins v. BE&K, Inc., 802 S.W.2d 215, 1990 Tenn. LEXIS 486 (Tenn. 1990), rehearing denied, Perkins v. BE & K, Inc., — S.W.2d —, 1991 Tenn. LEXIS 74 (Tenn. Feb. 19, 1991).

Where employer offered Tennessee resident a job during a telephone conversation and the offer was accepted, and even though a written contract was later executed in Missouri memorializing the details of the agreement, the “contract of hire” between employer and resident was made in Tennessee; therefore, Tennessee court had jurisdiction over resident's compensation claim. Matthews v. St. Paul Property & Liability Ins., 845 S.W.2d 737, 1992 Tenn. LEXIS 575 (Tenn. 1992).

In a personal injury case in which a worker, who had been employed by a subcontractor to a general contractor, appealed a district court's entry of summary judgment in favor of the general contractor, under T.C.A. § 50-6-108(a), the Tennessee Workers'  Compensation Act provided the worker with his exclusive remedy, the general contractor was immune under T.C.A. § 50-6-113 to the same extent as the worker's employer, and T.C.A. § 50-6-115 and was relevant to the case. Scott v. AMEC Kamtech, Inc., 412 Fed. Appx. 818, — F.3d —, 2011 U.S. App. LEXIS 3758, 2011 FED App. 111N (6th Cir.).

11. Appeal.

Where the trial court did not find as a fact that a Tennessee contract governed by Tennessee law was involved, such a finding could not be justified on appeal. Bryant v. Seward, 490 S.W.2d 497, 1973 Tenn. LEXIS 517 (Tenn. 1973).

50-6-116. Construction of chapter.

For any claim for workers' compensation benefits for an injury, as defined in this chapter, when the date of injury is on or after July 1, 2014, this chapter shall not be remedially or liberally construed but shall be construed fairly, impartially, and in accordance with basic principles of statutory construction and this chapter shall not be construed in a manner favoring either the employee or the employer.

Acts 1919, ch. 123, § 47; Shan. Supp., § 3608a197; Code 1932, § 6901; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.) § 50-918; Acts 2013, ch. 289, § 15.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, rewrote the section which read: “The rule of common law requiring strict construction of statutes in derogation of common law shall not be applicable to this chapter, but this chapter is declared to be a remedial statute, which shall be given an equitable construction by the courts, to the end that the objects and purposes of this chapter may be realized and attained.”

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

NOTES TO DECISIONS

1. Medical Proof.

In determining that a claimant failed to establish a compensable injury to his left shoulder, the trial court did not err in its evaluation of the medical proof. Thysavathdy v. Bridgestone Ams. Tire Operations, — S.W.3d —, 2018 Tenn. LEXIS 313 (Tenn. June 8, 2018).

50-6-116. Construction of chapter. [Applicable to injuries occurring prior to July 1, 2014.]

The rule of common law requiring strict construction of statutes in derogation of common law shall not be applicable to this chapter, but this chapter is declared to be a remedial statute, which shall be given an equitable construction by the courts, to the end that the objects and purposes of this chapter may be realized and attained.

Acts 1919, ch. 123, § 47; Shan. Supp., § 3608a197; Code 1932, § 6901; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.) § 50-918.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 533.

Law Reviews.

Workers' Compensation—An Analysis of Tennessee's Lump Sum Provision, 14 Mem. St. U.L. Rev. 579 (1984).

NOTES TO DECISIONS

1. Common-Law Rule Inapplicable.

The rule of the common law requiring strict construction is not applicable. Williams v. Carolina, C. & O. R. Co., 154 Tenn. 224, 289 S.W. 520, 1926 Tenn. LEXIS 117 (1926); Carmichael v. J. C. Mahan Motor Co., 157 Tenn. 613, 11 S.W.2d 672, 1928 Tenn. LEXIS 228 (1928).

The Workers' Compensation Law is in derogation of the common law, but contrary to the general rule of statutory construction, is to be given a liberal interpretation. Matthews v. Hardaway Contracting Co., 179 Tenn. 98, 163 S.W.2d 59, 1941 Tenn. LEXIS 99 (1942).

2. Equitable and Liberal Construction.

This statute is to be construed liberally as to persons entitled to its benefits. Johnson Coffee Co. v. McDonald, 143 Tenn. 505, 226 S.W. 215, 1920 Tenn. LEXIS 37 (1920); Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W.2d 860, 1928 Tenn. LEXIS 119 (1928); Brown v. Birmingham Nurseries, 173 Tenn. 343, 117 S.W.2d 739, 1937 Tenn. LEXIS 31 (1938); Webster v. Lloyd A. Fry Roofing Co., 177 Tenn. 122, 146 S.W.2d 946, 1940 Tenn. LEXIS 18 (1941); Matthews v. Hardaway Contracting Co., 179 Tenn. 98, 163 S.W.2d 59, 1941 Tenn. LEXIS 99 (1942); Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954, 1949 Tenn. LEXIS 384 (1949); Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954); Kitts v. American Mut. Liability Ins. Co., 133 F. Supp. 937, 1955 U.S. Dist. LEXIS 2971 (D. Tenn. 1955); Stovall v. General Shoe Corp., 204 Tenn. 358, 321 S.W.2d 559, 1959 Tenn. LEXIS 288 (1959); Ransom v. H. G. Hill Co., 205 Tenn. 377, 326 S.W.2d 659, 1959 Tenn. LEXIS 374 (1959); Sharp v. Jenkins, 211 Tenn. 691, 367 S.W.2d 464, 1963 Tenn. LEXIS 392 (1963); Ward v. Commercial Ins. Co., 213 Tenn. 100, 372 S.W.2d 292, 1963 Tenn. LEXIS 473 (1963); Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940, 1964 Tenn. LEXIS 454 (1964); Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

This statute is to be construed liberally as to its terms and provisions. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924); Moss v. Aluminum Co. of America, 152 Tenn. 249, 276 S.W. 1052, 1925 Tenn. LEXIS 69 (1925); Cherokee Sand Co. v. Green, 152 Tenn. 412, 277 S.W. 905, 1925 Tenn. LEXIS 84 (1925); Knox v. Washer, 153 Tenn. 630, 284 S.W. 888, 1925 Tenn. LEXIS 48 (1926); Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, 295 S.W. 68, 1926 Tenn. LEXIS 64 (1927); Cherokee Brick Co. v. Bishop, 156 Tenn. 168, 299 S.W. 770, 1927 Tenn. LEXIS 99 (1927); S. C. Weber Iron & Steel Co. v. Jeffery, 161 Tenn. 142, 29 S.W.2d 656, 1929 Tenn. LEXIS 42 (1930); Marshall Const. Co. v. Russell, 163 Tenn. 410, 43 S.W.2d 208, 1931 Tenn. LEXIS 130 (1931); Louis T. Hooper Tire Co. v. Maneese, 164 Tenn. 51, 45 S.W.2d 1071, 1931 Tenn. LEXIS 9 (1931); Parks v. E. M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285, 1934 Tenn. LEXIS 70 (1935); Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564, 1935 Tenn. LEXIS 46 (1935); Adams v. Hercules Powder Co., 180 Tenn. 340, 175 S.W.2d 319, 1943 Tenn. LEXIS 21, 151 A.L.R. 1352 (1943); Martin v. Free Service Tire Co., 189 Tenn. 327, 225 S.W.2d 249, 1949 Tenn. LEXIS 433 (1949); Turner v. Bluff City Lumber Co., 189 Tenn. 621, 227 S.W.2d 1, 1950 Tenn. LEXIS 401 (1950); Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

The supreme court has never been unmindful of the remedial nature of this legislation, and the law has been uniformly construed so as to secure for the beneficiaries of the law every protection a liberal construction authorized. Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717, 1928 Tenn. LEXIS 177 (1929); Turner v. Bluff City Lumber Co., 189 Tenn. 621, 227 S.W.2d 1, 1950 Tenn. LEXIS 401 (1950).

The Workers' Compensation Law is a remedial statute to be given an equitable construction, to the end that its objects and purposes may be realized. Walters v. Eagle Indem. Co., 166 Tenn. 383, 61 S.W.2d 666, 1932 Tenn. LEXIS 146, 88 A.L.R. 654 (1933).

This statute is not to be construed strictly as being in derogation of the common law, but liberally in favor of the claimant and in furtherance of the sound public policy that dictated the legislation. Ogle v. Tennessee Eastman Corp., 185 Tenn. 527, 206 S.W.2d 909, 1947 Tenn. LEXIS 366 (1947); Edwards v. Harvey, 194 Tenn. 603, 253 S.W.2d 766, 1952 Tenn. LEXIS 428 (1952); Parker v. Ryder Truck Lines, Inc., 591 S.W.2d 755, 1979 Tenn. LEXIS 528 (Tenn. 1979).

All reasonable doubts as to whether an injury arose out of employment must be construed in favor of the employee. Great American Indem. Co. v. Friddell, 198 Tenn. 360, 280 S.W.2d 908, 1955 Tenn. LEXIS 381 (1955); Sharp v. Jenkins, 211 Tenn. 691, 367 S.W.2d 464, 1963 Tenn. LEXIS 392 (1963); Ward v. Commercial Ins. Co., 213 Tenn. 100, 372 S.W.2d 292, 1963 Tenn. LEXIS 473 (1963); Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940, 1964 Tenn. LEXIS 454 (1964).

In determining whether one is an employee or an independent contractor, it is the duty of the court to give the Workers' Compensation Law a liberal construction in favor of the fact that he is an employee, rather than a strict construction. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956).

Under the rule of liberality of construction, recovery may be had for aggravation of a  injury where such issue is raised by the evidence, even though the employee does not allege such ground in his pleading or seek at the outset to recover on this theory. Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 315 S.W.2d 245, 1958 Tenn. LEXIS 230 (1958).

Statute would be liberally construed in determining whether heat stroke which aggravated  arteriosclerosis condition was a compensable injury. Eslinger v. Miller Bros. Co., 203 Tenn. 688, 315 S.W.2d 261, 1958 Tenn. LEXIS 236 (1958).

The statute is remedial and intended to burden industry with the responsibility of industrial accidents by requiring compensation for benefit of injured employees or in case of their death by accident to their dependents so as to relieve society of that obligation, and the law will be broadly construed to accomplish the ends intended. Commercial Ins. Co. v. Young, 209 Tenn. 608, 354 S.W.2d 779, 1961 Tenn. LEXIS 425 (1961); Smith v. Tennessee Furniture Industries, Inc., 212 Tenn. 291, 369 S.W.2d 721, 1963 Tenn. LEXIS 423 (1963).

The statute should be liberally construed to secure the beneficiaries thereof every reasonable protection which it authorized, resolving any reasonable doubt as to whether the act or injury arose out of the employment in favor of the employee where rationally possible. Ward v. Ward, 213 Tenn. 657, 378 S.W.2d 754, 1964 Tenn. LEXIS 434 (1964).

Chancellor did not err in permitting defendant employee to insert into compensation case by way of amended answer allegation seeking relief on earlier injury which allegedly resulted in original disability of employee which employee claimed was aggravated by second injury which was the subject of employer's suit to settle dispute as to second injury. Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124, 1966 Tenn. LEXIS 559 (1966).

Equity delights in giving complete relief and in avoiding a multiplicity of suits and should consider any pertinent claim for relief that is reasonably connected with the original bill. Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124, 1966 Tenn. LEXIS 559 (1966).

This section is a mandate that the Workers' Compensation Law be interpreted liberally in favor of persons entitled to its benefits so that its purpose and intent be fulfilled. Wormsley v. Consolidation Coal Co., 408 F.2d 79, 1969 U.S. App. LEXIS 13447 (6th Cir. Tenn. 1969); Curtis v. Hamilton Block Co., 225 Tenn. 275, 466 S.W.2d 220, 1971 Tenn. LEXIS 300 (1971).

The act is remedial and to be liberally construed in favor of those entitled to its benefits and any reasonable doubt as to whether an injury arose out of and in the employment is to be resolved in favor of the employee or his dependents. Williams v. Preferred Development Corp., 224 Tenn. 174, 452 S.W.2d 344, 1970 Tenn. LEXIS 310 (1970).

Even where the evidence allows inferences which could support the contention of either party, the court is bound by the strong public policy, as enunciated in this section, to resolve doubts and conflicts in favor of the claimant. Wheeler v. Glens Falls Ins. Co., 513 S.W.2d 179, 1974 Tenn. LEXIS 461 (Tenn. 1974).

The state supreme court must interpret the workers' compensation statutes in a manner designed to protect workers and their families from the economic devastation that, in many instances, can follow on-the-job injuries, and must construe the workers' compensation laws so as to ensure that injured employees are justly and appropriately reimbursed for debilitating injuries suffered in the course of service to the employer. Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991).

3. —Duties and Requirements as to Industry — Effect.

The statute is remedial and intended to require industry to provide for its own casualties.

This statute is remedial, intended to burden industry with the responsibility of industrial accident by requiring compensation for benefit of injured employees, or, in case of their death by accident, to their dependents, so as to relieve society of the obligation. Therefore, the statute is not to be given a narrow construction, but should be applied fairly and broadly to accomplish the ends intended. Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, 295 S.W. 68, 1926 Tenn. LEXIS 64 (1927); Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564, 1935 Tenn. LEXIS 46 (1935).

This statute is not a statute of descent or distribution. It was intended to relieve society of the burden of caring for injured workers or their dependents and to place that burden upon the industry employing the workers. Kinnard v. Tennessee Chemical Co., 157 Tenn. 206, 7 S.W.2d 807, 1927 Tenn. LEXIS 66 (1928).

This statute expresses the general public policy of the state as to the respective rights and obligations growing out of injuries to employees in furtherance of employer's business. The public, as well as the parties, therefore is interested in its application. Walsh v. Myer Hotel Co., 161 Tenn. 355, 30 S.W.2d 225, 1929 Tenn. LEXIS 64 (1930).

4. —Application and Effect of Required Construction.

Employee killed while crawling under a train on way home by exit commonly used by other employees, against the natural danger of which the employer had made no provision held to have been killed by accident growing out of and in course of employment, in view of the equitable construction required by this section, especially since employee's work extended over the scene of the accident. Moore v. Cincinnati, N. O. & T. P. R. Co., 148 Tenn. 561, 256 S.W. 876, 1923 Tenn. LEXIS 43 (1923), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Construing the statute as required by this section, right to compensation for total loss of eye resulting in immediate injury is barred by failure to apply therefor within one year from occurrence of the accident. Graham v. J. W. Wells Brick Co., 150 Tenn. 660, 266 S.W. 770, 1924 Tenn. LEXIS 35 (1924).

Equitable construction of this statute warrants recovery of employee, whose leg is partially lost, of compensation for temporary total disability and following its disappearance, to compensation for permanent partial disability left thereafter. Cherokee Sand Co. v. Green, 152 Tenn. 412, 277 S.W. 905, 1925 Tenn. LEXIS 84 (1925).

Proceeding under this law being equitable in nature under the express provisions of the statute, the burden is upon petitioner to prove averment that employer had the requisite number of employees to bring it within the application of this act. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

Following direction of this section for equitable construction of the statute, compensation for physical loss of two toes and loss of use of two other toes could properly be awarded for loss of 75 percent of the normal use of the foot rather than for loss and loss of use of toes considered separately, this being course more favorable to employee. S. C. Weber Iron & Steel Co. v. Jeffery, 161 Tenn. 142, 29 S.W.2d 656, 1929 Tenn. LEXIS 42 (1930).

Failure of claimant or agent to give technical statutory notice that injury arose out of employment will not defeat recovery of workers' compensation if employer has actual knowledge of facts which would have reasonably suggested conclusion, since statutory purpose will be upheld without prejudice to employer. Powers v. Beasley, 197 Tenn. 549, 276 S.W.2d 720, 1955 Tenn. LEXIS 315 (1955).

Where duties of employee employed by sole employer were many and varied and included driving employer's automobile both for business purposes and for purposes purely personal to employer, and where employee was injured while driving employer on a trip purely personal to employer but which was not personal to employee and which employee was making solely because directed to do so by employer, the provisions of this section as to equitable construction of the statute to secure the remedial purposes of the law required that such employee be entitled to compensation under the statute. McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956).

This act is remedial and is to be liberally construed in favor of those entitled to its benefits, and any reasonable doubt as to whether an injury arose out of and in the course of employment is to be resolved in favor of the employee or his dependents. Parker v. Ryder Truck Lines, Inc., 591 S.W.2d 755, 1979 Tenn. LEXIS 528 (Tenn. 1979).

A worker's personal representative may recover benefits on behalf of the deceased employee from the time of injury to the time of death, even though the worker's death was unrelated to the employment. Warrick v. Cheatham County Highway Dep't, 60 S.W.3d 815, 2001 Tenn. LEXIS 821 (Tenn. 2001).

5. —Limitations and Restrictions upon Construction.

While it is true that a reason for compensation legislation is the protection of the public from the burden incident to support of those rendered dependent by accidental injuries and that a liberal construction should be given to all the terms of the act, the liability of employers is subject to some limitations. The injury must be one that by the exercise of foresight the employer might have contemplated as a result of engaging in the business and contracting with his workmen. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924).

The rule of liberal construction in dealing with this statute forbids giving to a word used in the statute a restricted or literal meaning which would defeat the legislative intent. Diamond Coal Co. v. Jackson, 156 Tenn. 179, 299 S.W. 802, 1927 Tenn. LEXIS 100 (1927).

Under the rule that the Workers' Compensation Law is to be applied fairly and to the accomplishment of the end intended, the statute cannot be given a restricted or literal meaning which would defeat the legislative intent. Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564, 1935 Tenn. LEXIS 46 (1935).

Liberality in construing the Workers' Compensation Law will not permit the court to evade the plain provisions of the statute itself. Adams v. Hercules Powder Co., 180 Tenn. 340, 175 S.W.2d 319, 1943 Tenn. LEXIS 21, 151 A.L.R. 1352 (1943).

The courts in giving the compensation statute an equitable construction must at the same time be careful not to enter the field of legislation. Willoughby v. Warstler & Egly Bakery, Inc., 201 Tenn. 277, 298 S.W.2d 727, 1957 Tenn. LEXIS 423 (1957).

Rule that statute is to be given a broad construction does not permit court to legislate a provision into the statute that is not there. Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963).

Although the Tennessee Workers'  Compensation Act, T.C.A. § 50-6-101 et seq., was a remedial statute and was to be equitably construed under T.C.A. § 50-6-116, an employee's administrative remedies were not effectively exhausted for T.C.A. §§ 50-6-203(a) and 50-6-225(a)(1) purposes by the Tennessee Department of Labor's long period of inaction on the employee's request for assistance under T.C.A. § 50-6-238. Chapman v. Davita, Inc., 380 S.W.3d 710, 2012 Tenn. LEXIS 643 (Tenn. Sept. 21, 2012).

6. — —Persons Not Embraced in Terms of Statute.

The rule of liberal construction cannot be resorted to for the purpose of extending the statute to persons not embraced in the terms of the statute, as to a policeman of a city. Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 1932 Tenn. LEXIS 86 (1933).

7. Practice and Procedure.

In compensation cases, broadly speaking, the procedure resembles that of a suit in equity, and the policy of the courts in construing these statutes seems to be to get away from technical pleading. Byrd v. Pioneer-Jellico Coal Co., 180 Tenn. 396, 175 S.W.2d 542, 1943 Tenn. LEXIS 34 (1943).

8. —Pleading.

Proceeding under this law being equitable in nature under the express provisions of the statute, every essential averment of fact in the petition not admitted by the answer is denied. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

By construction, the court inclines from technicalities in pleading to simplicity as far as possible. R. W. Hartwell Motor Co. v. Hickerson, 160 Tenn. 513, 26 S.W.2d 153, 1929 Tenn. LEXIS 127 (1930).

Proceedings under the statute are equitable in nature, and where the accidental injury averred in the petition of the injured employee was neither admitted nor denied in the answer of the employer, such injury was taken as denied. Riley v. Knoxville Iron Co., 178 Tenn. 107, 156 S.W.2d 398, 1941 Tenn. LEXIS 37 (1941).

9. — —Amendment.

In a proceeding by employee to set aside lump settlement on the ground of fraud, the proceeding was equitable and employee was entitled to amend his petition so as to show a tender into court of amount received in lump settlement. Beard v. Standard Coosa Thatcher Co., 188 Tenn. 14, 216 S.W.2d 706, 1948 Tenn. LEXIS 487 (1948).

10. —Evidence.

Requirement of equitable construction, under this statute, does not warrant admission of hearsay evidence in compensation case, such as statements of what employee told witness as to cause of injuries. Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717, 1928 Tenn. LEXIS 177 (1929).

The rule of reasonable inference where evidence is circumstantial is recognized. R. W. Hartwell Motor Co. v. Hickerson, 160 Tenn. 513, 26 S.W.2d 153, 1929 Tenn. LEXIS 127 (1930).

It is elemental that this law is to be given a liberal construction yet the award must be supported by material evidence and must not be left to conjecture. Patton v. L. O. Brayton & Co., 184 Tenn. 592, 201 S.W.2d 981, 1947 Tenn. LEXIS 281 (1947).

11. —Presumptions.

There is a presumption in favor of validity of a marriage after a lapse of many years, so as to justify an award of compensation. Bohlen-Huse Coal & Ice Co. v. McDaniel, 148 Tenn. 628, 257 S.W. 848, 1923 Tenn. LEXIS 48 (1924); Kinnard v. Tennessee Chemical Co., 157 Tenn. 206, 7 S.W.2d 807, 1927 Tenn. LEXIS 66 (1928).

One presumption cannot be deduced from another but only from facts. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928).

12. —Conclusions of Court.

The mandate of the statute requires a liberal construction of its provisions in favor of injured employees, but such liberality does not impose upon the courts the duty of reaching definite conclusions as to what the facts show. Farris v. Yellow Cab Co., 189 Tenn. 46, 222 S.W.2d 187, 1949 Tenn. LEXIS 397 (1949).

13. —Appeal.

In a proceeding in circuit court by employee to set aside a lump settlement for compensation, the trial court was entitled to grant a discretionary appeal to employer upon overruling of employer's demurrer since an equitable proceeding was involved and rules of chancery applied. Beard v. Standard Coosa Thatcher Co., 188 Tenn. 14, 216 S.W.2d 706, 1948 Tenn. LEXIS 487 (1948).

The Workers' Compensation Law will not be construed to permit an employer not joining the insurer in an appeal from the trial court to thereby increase the liability of the insurer beyond that which the law places upon it. Bituminous Casualty Corp. v. Smith, 200 Tenn. 13, 288 S.W.2d 913, 1956 Tenn. LEXIS 372 (1956).

Collateral References.

Recovery for discharge from employment in retaliation for filing worker's compensation claim. 32 A.L.R.4th 1221.

50-6-117. Suits by corporation officer against employer. [Applicable to injuries occurring prior to July 1, 2014.]

Every employee who is a corporate officer and who elects not to operate under this chapter, in any action to recover damages for personal injury or death by accident brought against an employer who has elected to operate under this chapter, shall proceed as at common law, and the employer in the suit may make use of all common law defenses. This section shall not apply to any officer of a corporation, member of a limited liability company, partner, or sole proprietor who is engaged in the construction industry, as defined by § 50-6-901; instead, part 9 of this chapter shall apply to such officer, member, partner or sole proprietor.

Acts 1975, ch. 198, § 3; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-919; Acts 2010, ch. 1149, § 6.

Compiler's Notes. Acts 2013, ch. 289, § 16, effective July 1, 2014, amends § 50-6-117 by deleting it in its entirety.  However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law.  Thus, this section remains in effect as to injuries occurring prior to July 1, 2014. See § 50-6-104(f) for similar provisions under law applicable to injuries occurring on or after July 1, 2014.

Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which amended this section. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

      Cross-References. Inapplicability to claims filed against state, § 9-8-307.

    3. Bad faith denial of claims;
    4. Late filing of notice of denial of claim;
    5. [Deleted by 2013 amendment, effective July 1, 2014.]
    6. [Deleted by 2013 amendment, effective July 1, 2014.]
    7. [Deleted by 2013 amendment, effective July 1, 2014.]
    8. Failure of any party to appear or to mediate in good faith at any alternative dispute resolution proceeding;
    9. Failure of any party to comply, within the designated timeframe, with any order or judgment issued by a workers' compensation judge;
    10. Performance of any enumerated action provided in § 29-9-102 in relation to any proceedings in the court of workers' compensation claims;
    11. Failure of any employer to timely provide medical treatment made reasonably necessary by the accident and recommended by the authorized treating physician or operating physician;
    12. Failure of an employer to timely provide a panel of physicians that meets the statutory requirements of this chapter;
    13. Wrongful failure of an employer to pay an employee's claim for temporary total disability payments;
    14. Wrongful failure to satisfy the terms of an approved settlement;
    15. Refusal to cooperate with the services provided by an ombudsman; and
    16. Any violation of § 50-6-215 by an individual or entity not licensed by the department of commerce and insurance.
  2. All penalties collected by the bureau from an employer for failure to provide workers' compensation coverage or failure to qualify as a self-insurer shall be paid into and become a part of the uninsured employers fund. All other penalties collected pursuant to an assessment made under this section shall be paid to the bureau for use by the bureau, at the discretion of the administrator, to offset the cost of administering this chapter.
  3. The bureau of workers' compensation may assess the penalties authorized by this chapter, upon providing notice and an opportunity for a hearing to an employer, an employee, an insurer, or a self-insured pool or trust. If a hearing is requested, the commissioner, commissioner's designee, or an agency member appointed by the commissioner shall have the authority to hear the matter as a contested case, and the authority to hear the administrative appeal of an agency decision, relating to the assessment of the penalties authorized by this chapter. When a hearing or review of an agency decision is requested, the requesting party shall have the burden of proving, by a preponderance of the evidence, that the penalized party was either not subject to this chapter, or that the penalties assessed pursuant to this chapter should not have been assessed. Any party assessed a penalty pursuant to this section shall have the right to appeal the penalty assessed by the bureau and affirmed by the commissioner, the commissioner's designee or an agency member in the manner provided in this subsection (c), pursuant to the Uniform Administrative Procedures Act.
  4. If an employee receives a settlement, judgment or decree under this chapter that includes the payment of medical expenses and the employer or workers' compensation carrier wrongfully fails to reimburse an employee for any medical expenses actually paid by the employee within sixty (60) days of the settlement, judgment or decree, or fails to provide reasonable and necessary medical expenses and treatment, including failure to reimburse for reasonable and necessary medical expenses, in bad faith after receiving reasonable notice of their obligation to provide the medical treatment, the employer or· workers' compensation carrier shall be liable, in the discretion of the court, to pay the employee, in addition to the amount due for medical expenses paid, a sum not exceeding twenty-five percent (25%) of the expenses; provided, that it is made to appear to the court that the refusal to pay the claim was not in good faith and that the failure to pay inflicted additional expense, loss or injury upon the employee.

50-6-118. Penalties.

The bureau of workers' compensation shall, by rule promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, establish and collect penalties for the following:

Failure of a covered employer to provide workers' compensation coverage or qualify as a self-insurer;

Late filing of accident reports;

Acts 1985, ch. 393, § 18; 1999, ch. 520, § 41; 2000, ch. 972, § 3; 2001, ch. 192, § 8; 2004, ch. 962, § 8; 2005, ch. 390, § 2; 2013, ch. 289, §§ 17, 18; 2014, ch. 903, § 3; 2015, ch. 341, § 15; 2016, ch. 826, § 2.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Acts 2016, ch. 826, § 3 provided that the act, which amended this section, shall apply to all claims submitted to a medical provider on or after July 1, 2016.

Amendments. The 2013 amendment, effective July 1, 2014, in (a), deleted (5)-(7) which read: “(5) Late filing of notice of change in benefit payments;“(6) Late filing with the department of notice of filing of lawsuits by employees or employee representatives; and“(7) Late filing of judgments by insurance companies or by employers, if self-insured.”, added (8)-(15); rewrote (c) which read: “(c) The commissioner, commissioner’s designee, or an agency member appointed by the commissioner, may assess the penalties authorized by this chapter, upon providing notice and an opportunity for a hearing to an employer, an employee, an insurer, or a self-insured pool or trust. If a hearing is requested, the commissioner, commissioner’s designee, or an agency member appointed by the commissioner shall have the authority to hear the matter as a contested case, and the authority to hear the administrative appeal of an agency decision, relating to the assessment of the penalties authorized by this chapter. When a hearing or review of an agency decision is requested, the requesting party shall have the burden of proving, by a preponderance of the evidence, that the penalized party was either not subject to this chapter, or that the penalties assessed pursuant to this chapter should not have been assessed.”; and added (d).

The 2014 amendment, in (b), substituted “division” for “department” in the first sentence, and rewrote the second sentence which read: “All other penalties collected by the department shall be paid into and become a part of the second injury fund.”

The 2015 amendment substituted “bureau” for “division” throughout.

The 2016 amendment added (a)(16).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2014, ch. 903, § 14. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2016, ch. 826, § 3. July 1, 2016.

50-6-118. Penalties. [Applicable to injuries occurring prior to July 1, 2014.]

  1. The division of workers' compensation shall, by rule promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, establish and collect penalties for the following:
    1. Failure of a covered employer to provide workers' compensation coverage or qualify as a self-insurer;
    2. Late filing of accident reports;
    3. Bad faith denial of claims;
    4. Late filing of notice of denial of claim;
    5. Late filing of notice of change in benefit payments;
    6. Late filing with the department of notice of filing of lawsuits by employees or employee representatives; and
    7. Late filing of judgments by insurance companies or by employers, if self-insured.
  2. All penalties collected by the department from an employer for failure to provide workers' compensation coverage or failure to qualify as a self-insurer shall be paid into and become a part of the uninsured employers fund. All other penalties collected by the department shall be paid into and become a part of the second injury fund.
  3. The commissioner, commissioner's designee, or an agency member appointed by the commissioner, may assess the penalties authorized by this chapter, upon providing notice and an opportunity for a hearing to an employer, an employee, an insurer, or a self-insured pool or trust. If a hearing is requested, the commissioner, commissioner's designee, or an agency member appointed by the commissioner shall have the authority to hear the matter as a contested case, and the authority to hear the administrative appeal of an agency decision, relating to the assessment of the penalties authorized by this chapter. When a hearing or review of an agency decision is requested, the requesting party shall have the burden of proving, by a preponderance of the evidence, that the penalized party was either not subject to this chapter, or that the penalties assessed pursuant to this chapter should not have been assessed.

Acts 1985, ch. 393, § 18; 1999, ch. 520, § 41; 2000, ch. 972, § 3; 2001, ch. 192, § 8; 2004, ch. 962, § 8; 2005, ch. 390, § 2.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2004, ch. 962, § 51 provided, in part, that § 8 of the act shall apply to accidents or injuries occurring on or after July 1, 2004.

The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

Cross-References. Enforcement power of administrator, § 50-6-233.

Subsequent injury and vocational recovery fund, § 50-6-208.

NOTES TO DECISIONS

1. Attorney Fees.

Language of T.C.A. § 50-6-238(d)(3) expressly applies with respect to penalties assessed against insurers or self-insured employers because there is no indication that the legislature intended these provisions to extend to a specialist's order regarding attorney fees where no penalty is assessed; the workers'  compensation provisions regarding penalties do not reference attorney fees as penalties, T.C.A. § 50-6-118, Tenn. Comp. R. & Regs. § 0800-02-13. C.H. Guenther & Son, Inc. v. Head, — S.W.3d —, 2012 Tenn. App. LEXIS 852 (Tenn. Ct. App. Dec. 10, 2012).

Collateral References.

Workers' compensation: availability, rate, or method of calculation of interest on attorney's fees or penalties. 79 A.L.R.5th 201.

50-6-119. Information awareness program.

  1. In order to provide greater awareness among employers and employees of the rights and obligations of the workers' compensation laws, the bureau of workers' compensation shall institute an information awareness program. The program shall:
    1. Involve a statewide effort to consult with employers on the actions required;
    2. Provide that employers with frequent incidents of injuries be targeted for referral to appropriate agencies on accident prevention;
    3. Provide education and information aimed at preventing disputes and delays in the processing of claims, through the use of speakers' seminars and conferences;
    4. Provide a system to communicate developments in the law to interested groups;
    5. Provide injured employees with complete information on their rights to compensation and day-to-day assistance with problems on their claims;
    6. Develop general informational literature and audio-visual aids for both employees and employers; and
    7. Provide a toll-free number for employers and employees to receive information from and ask questions of the department.
  2. Any publications for distribution under this section must be published in accordance with the rules, regulations, policies and procedures of the state publications committee.

Acts 1985, ch. 393, § 19; 1990, ch. 1024, § 29; 1999, ch. 520, § 41; 2015, ch. 341, § 15.

Amendments. The 2015 amendment substituted “bureau” for “division” in (a).

Effective Dates. Acts 2015, ch. 341, § 19. May 4, 2014.

Cross-References. Enforcement power of commissioner, § 50-6-233.

50-6-120. Liability of construction design professionals.

  1. No construction design professional, or any employee of the construction design professional, who is retained to perform professional services on a construction project, shall be liable for the personal injury or death of any nonemployee of the construction design professional, working on the construction project, unless the construction design professional or any employee of the construction design professional is guilty of negligence that is a proximate cause of the injury or death of the nonemployee.
  2. Nothing in this section shall be construed to affect the rights or responsibilities of any person under this chapter.
  3. Rule 11 of the Tennessee Rules of Civil Procedure  shall apply in all actions against construction design professionals.

Acts 1988, ch. 923, §§ 2-4.

50-6-121. Advisory council on workers' compensation.

      1. There is created an advisory council on workers' compensation. There shall be seven (7) voting members of the council, with three (3) representing employers, three (3) representing employees, and one (1) member who shall serve as the chair and who shall be the state treasurer or the state treasurer's designee. There shall be ten (10) nonvoting members of the council. All members shall have a demonstrable working knowledge of the workers' compensation system.
      2. The chair shall preside at meetings of the council and, in consultation with the voting members of the council, shall supervise the work of the staff of the council. The council shall meet at the call of the chair or at the written call of four (4) voting members of the council which written call shall be delivered to the chair. The chair may vote only on matters related to the administration of the council or the council's research. The chair is not permitted to vote on any matter that constitutes the making of a policy recommendation to the governor or to the general assembly.
      3. The speaker of the house of representatives, the speaker of the senate and the governor shall each appoint one (1) employer and one (1) employee representative to the council, who shall be voting members. Representatives, officers and employees from labor organizations or business trade organizations are eligible for appointment. In making the appointments of the employer representatives, the appointing authorities shall strive to ensure a balance of a commercially insured employer, self-insured employer or an employer who operates a small business. At least one (1) employee representative shall be from organized labor. Proxy voting is prohibited by voting members of the council; provided, however, that in instances where a voting member will be absent from a vote of the council, the member's appointing authority is authorized to appoint an alternate or designee for the vote or votes.
      4. Voting members shall serve four-year terms and the terms shall be staggered so that the terms of only three (3) voting members shall terminate at the same time. All four-year terms shall begin on July 1 and terminate on June 30, four (4) years thereafter.
        1. The governor shall also appoint ten (10) nonvoting members of the council as follows: one (1) to represent local governments, one (1) to represent insurance companies, five (5) to represent health care providers and three (3) attorneys. The nonvoting local government representative may be appointed from lists of qualified persons submitted by interested municipal and county organizations including, but not limited to, the Tennessee Municipal League and the Tennessee County Services Association. The nonvoting insurance company representative may be appointed from lists of qualified persons submitted by interested insurance organizations including, but not limited to, the Property Casualty Insurers Association of America and the American Insurance Association. One (1) nonvoting healthcare provider representative may be appointed from lists of qualified persons submitted by interested medical organizations including, but not limited to, the Tennessee Medical Association and one (1) nonvoting healthcare provider representative may be appointed from lists of qualified persons submitted by interested hospital organizations including, but not limited to, the Tennessee Hospital Association. One (1) nonvoting health care provider representative shall be a chiropractor who is licensed in this state, one (1) nonvoting health care provider representative shall be a physical therapist who is licensed in this state, and one (1) nonvoting health care provider representative shall be an occupational therapist who is licensed in this state, and these members shall not receive reimbursement for travel expenses. The nonvoting attorney members shall be appointed as follows: one (1) who shall primarily represent injured workers' compensation claimants, who may be appointed from lists of qualified persons submitted by interested justice organizations including, but not limited to, the Tennessee Association for Justice; one (1) who shall primarily represent employers or workers' compensation insurers, who may be appointed from lists of qualified persons submitted by interested defense lawyer organizations including, but not limited to, the Tennessee Defense Lawyers Association; and one (1) who may be appointed from lists of qualified persons submitted by interested legal organizations including, but not limited to the Tennessee Bar Association.
        2. The appointing authorities shall consult with interested groups including, but not limited to, the organizations listed in subdivision (a)(E)(i) to determine qualified persons to fill positions on the council.
      5. The nonvoting members shall be appointed to four-year terms that shall begin on July 1 and terminate on June 30, four (4) years thereafter.
      6. The chair of the commerce and labor committee of the senate, the chair of the consumer and human resources committee of the house of representatives, the administrator of the bureau of workers' compensation and the commissioner of commerce and insurance, or their designees, shall be ex officio, nonvoting members of the council.
    1. Each voting and nonvoting member of the advisory council on workers' compensation shall, upon the expiration of the member's term, be eligible for reappointment and shall serve until a successor is appointed. In the event a member resigns or becomes ineligible for service during the member's term, a successor shall be appointed by the appropriate appointing authority to serve the remainder of the term.
    2. No employer shall discriminate in any manner against an employee who serves on the advisory council because of the employee's service. Employees who serve on the advisory council shall not be denied any benefit from their employer because of the employee's service. Travel expenses of the employee representatives on the council shall be reimbursed pursuant to subsection (b); however, employers may choose to pay the travel expenses of their employees' service on the advisory council according to their own policies.
    1. Notwithstanding § 3-6-304 or any other law to the contrary, and in addition to all other requirements for membership on the council:
      1. Any person registered as a lobbyist pursuant to the registration requirements of title 3, chapter 6 who is subsequently appointed or otherwise named as a member of the council shall terminate all employment and business association as a lobbyist with any entity whose business endeavors or professional activities are regulated by the council, prior to serving as a member of the council. This subdivision (b)(1)(A) shall apply to all persons appointed or otherwise named to the council after July 1, 2010;
      2. No person who is a member of the council shall be permitted to register or otherwise serve as a lobbyist pursuant to title 3, chapter 6 for any entity whose business endeavors or professional activities are regulated by the council during such person's period of service as a member of the council. This subdivision (b)(1)(B) shall apply to all persons appointed or otherwise named to the council after July 1, 2010, and to all persons serving on the council on such date who are not registered as lobbyists; and
      3. No person who serves as a member of the council shall be employed as a lobbyist by any entity whose business endeavors or professional activities are regulated by the council for one (1) year following the date such person's service on the council ends. This subdivision (b)(1)(C) shall apply to persons serving on the council as of July 1, 2010, and to persons appointed to the council subsequent to such date.
    2. A person who violates this subsection (b) shall be subject to the penalties prescribed in title 3, chapter 6.
    3. The bureau of ethics and campaign finance is authorized to promulgate rules and regulations to effectuate the purposes of this subsection (b). All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and in accordance with the procedure for initiating and proposing rules by the ethics commission to the bureau of ethics and campaign finance as prescribed in § 4-55-103.
  1. In addition to all other requirements for membership on the council, all persons appointed or otherwise named to serve as members of the council after July 1, 2010, shall be residents of this state.
  2. Members of the council shall not be paid but may be reimbursed for travel expenses. All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.
  3. The council shall meet at least twice each year. It shall annually review workers' compensation in the state and shall issue a report of its findings and conclusions on or before July 1 of each year. The annual report shall be sent to the governor, the speakers of the house of representatives and the senate, the chair and vice-chair of the special joint committee on workers' compensation, the administrator of the bureau of workers' compensation, the commissioner of commerce and insurance and the clerks of the house of representatives and senate. Notice of the publication of the annual report and all other reports published by the council shall be provided to all members of the general assembly pursuant to § 3-1-114.
  4. In performing its responsibilities, the council's role shall be strictly advisory, but it may:
    1. Make recommendations to the governor, the general assembly, the special joint committee on workers' compensation, the standing committees of each house that review the status of the workers' compensation system, the administrator of the bureau of workers' compensation and the commissioner of commerce and insurance relating to the promulgation or adoption of legislation or rules;
    2. Make recommendations to the administrator of the bureau of workers' compensation and the commissioner of commerce and insurance regarding the method and form of statistical data collections; and
    3. Monitor the performance of the workers' compensation system in the implementation of legislative directives.
  5. The chair, in consultation with the voting members of the council, is authorized to retain staff and professional assistance, such as consultants and actuaries, as the chair deems necessary for the work of the council, subject to budgetary approval in the general appropriations act. For administrative purposes, the council shall be attached to the department of treasury for all administrative matters relating to receipts, disbursements, expense accounts, budget, audit and other related items. The state treasurer shall have administrative and supervisory control over the staff assigned to assist the council. Employees of the council shall not have the status of preferred service employees pursuant to title 8. The autonomy of the council and its authority are not affected by this subsection (g).
  6. The council may develop evaluations, statistical reports and other information from which the general assembly may evaluate the impact of the legislative changes to workers' compensation law, including, but not limited to, the Reform Act of 2004 and subsequent statutory changes to this chapter.
  7. The advisory council shall issue an annual report that includes a summary of significant supreme court decisions relating to workers' compensation, including an explanation of their impact on existing policy. The report shall be due on or before January 15 of each year and shall include, to the extent possible, the decisions that were issued during the preceding calendar year. This annual report shall be sent to the governor, the speaker of the house of representatives, the speaker of the senate, the chair of the consumer and human resources committee of the house of representatives, the chair of the commerce and labor committee of the senate, and the chair and co-chair of the special joint committee on workers' compensation. Notice of the publication of the report shall be provided to all members of the general assembly pursuant to § 3-1-114.
  8. The advisory council on workers' compensation shall, within ten (10) business days of each meeting it conducts, provide a summary of the meeting and a report of all actions taken and all actions recommended to be taken to each member of the consumer and human resources committee of the house of representatives and the commerce and labor committee of the senate.
  9. Whenever any bill is introduced in the general assembly proposing to amend this chapter or to make any change in workers' compensation law, or to make any change in the law that may have a financial or other substantive impact on the administration of workers' compensation law, the standing committee to which the bill is referred may refer the bill to the council. The council's review of bills relating to workers' compensation should include, but not be limited to, bills that propose to amend chapters 3, 6, 7, and 9 of this title, and title 56, chapters 5 and 47. All bills referred to the council shall be reported back to the standing committee to which they were assigned as quickly as reasonably possible. Notwithstanding the absence of a report from the council, the standing committee is free to consider the bill at any time. The chair making the referral shall immediately notify the prime sponsors of the referral and the council shall not review and comment on the proposed legislation until the prime sponsors have been notified. The comments of the council shall describe the potential effects of the proposed legislation on the workers' compensation system and its operations and any other information or suggestions that the council may think helpful to the sponsors, the standing committees or the general assembly. The comments of the council may include recommendations for or against passage of the proposed legislation. Other than reporting the recommendations for or against passage of proposed legislation and responding to any questions that the legislators may have, no staff of the advisory council shall lobby or advocate for or against passage of proposed legislation.
  10. The council shall study and report on the occupational health and safety of employment in Tennessee and make recommendations for safe employment education and training and promote the development of employer-sponsored health and safety programs.

Acts 1992, ch. 900, § 4; 1996, ch. 944, §§ 4-7; 1997, ch. 235, §§ 1, 2; 1997, ch. 533, § 49; 1998, ch. 1024, §§ 13, 20; 1999, ch. 520, § 41; 2000, ch. 852, § 3; 2001, ch. 192, §§ 11, 12; 2002, ch. 695, §§ 1, 2, 6; 2003, ch. 359, § 1; 2004, ch. 962, §§ 26, 27, 30, 43, 45; 2005, ch. 390, § 3; 2006, ch. 645, §§ 1-3; 2008, ch. 1183, §§ 9, 11; 2009, ch. 463, §§ 1-3; 2010, ch. 1087, § 3; 2011, ch. 410, § 10(a); 2012, ch. 622, § 3; 2012, ch. 800, § 49; 2013, ch. 236, § 29; 2013, ch. 282, § 1; 2013, ch. 289, § 19; 2015, ch. 341, § 15; 2016, ch. 608, § 3.

Code Commission Notes.

The former first sentence of subdivision (a)(1)(E), concerning the terms to be served by non-members beginning with the appointments made in 2003, was deleted as obsolete by the code commission in 2008.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

    The Reform Act of 2004, referred to in this section, is compiled in Acts 2004, ch. 962.

    For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Acts 2012, ch. 800, § 1 provided that the act, which amended subsection (g), shall be known and cited as the “Tennessee Excellence, Accountability, and Management (T.E.A.M.) Act of 2012.”

Acts 2013, ch. 289, § 103 provided that the act, which amended subdivision (a)(1)(C), shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

The advisory council on workers' compensation, created by this section, terminates June 30, 2021 See §§ 4-29-112, 4-29-242.

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, substituted “administrator of the division of workers' compensation” for “commissioner of labor and workforce development” when referring to the commissioner of labor and workforce development in (a)(1)(F), (e) and (f)(1) and (2).

The 2013 amendment by ch. 289, effective July 1, 2014,  in (a)(1)(C), deleted the second sentence of  which read: “The terms of the voting members who are serving as of June 30, 2003, shall be amended as follows: those members whose terms are scheduled to expire in 2004 shall expire on June 30, 2004, and the successors shall serve a four-year term to begin on July 1, 2004, and to end on June 30, 2008, and those members whose terms are scheduled to expire in 2006 shall expire on June 30, 2006, and the successors shall serve a four-year term to begin on July 1, 2006, and to expire on June 30, 2010,” and, in the last sentence, deleted “Thereafter” preceding “All” at the beginning and added “thereafter” at the end.

The 2015 amendment substituted “bureau” for “division” throughout.

The 2016 amendment substituted “Property Casualty Insurers Association of America” for “Alliance of American Insurers” in the third sentence of (a)(1)(E)(i).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2014.

Acts 2016, ch. 608, § 4. March 22, 2016.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

50-6-121. Advisory council on workers' compensation. [Applicable to injuries occurring prior to July 1, 2014.]

      1. There is created an advisory council on workers' compensation. There shall be seven (7) voting members of the council, with three (3) representing employers, three (3) representing employees, and one (1) member who shall serve as the chair and who shall be the state treasurer or the state treasurer's designee. There shall be ten (10) nonvoting members of the council. All members shall have a demonstrable working knowledge of the workers' compensation system.
      2. The chair shall preside at meetings of the council and, in consultation with the voting members of the council, shall supervise the work of the staff of the council. The council shall meet at the call of the chair or at the written call of four (4) voting members of the council which written call shall be delivered to the chair. The chair may vote only on matters related to the administration of the council or the council's research. The chair is not permitted to vote on any matter that constitutes the making of a policy recommendation to the governor or to the general assembly.
      3. The speaker of the house of representatives, the speaker of the senate and the governor shall each appoint one (1) employer and one (1) employee representative to the council, who shall be voting members. Representatives, officers and employees from labor organizations or business trade organizations are eligible for appointment. In making the appointments of the employer representatives, the appointing authorities shall strive to ensure a balance of a commercially insured employer, self-insured employer or an employer who operates a small business. At least one (1) employee representative shall be from organized labor. Proxy voting is prohibited by voting members of the council; provided, however, that in instances where a voting member will be absent from a vote of the council, the member's appointing authority is authorized to appoint an alternate or designee for the vote or votes.
      4. Voting members shall serve four-year terms and the terms shall be staggered so that the terms of only three (3) voting members shall terminate at the same time. The terms of the voting members who are serving as of June 30, 2003, shall be amended as follows: those members whose terms are scheduled to expire in 2004 shall expire on June 30, 2004, and the successors shall serve a four-year term to begin on July 1, 2004, and to end on June 30, 2008, and those members whose terms are scheduled to expire in 2006 shall expire on June 30, 2006, and the successors shall serve a four-year term to begin on July 1, 2006, and to expire on June 30, 2010. Thereafter, all four-year terms shall begin on July 1 and terminate on June 30, four (4) years thereafter.
        1. The governor shall also appoint ten (10) nonvoting members of the council as follows: one (1) to represent local governments, one (1) to represent insurance companies, five (5) to represent health care providers and three (3) attorneys. The nonvoting local government representative may be appointed from lists of qualified persons submitted by interested municipal and county organizations including, but not limited to, the Tennessee Municipal League and the Tennessee County Services Association. The nonvoting insurance company representative may be appointed from lists of qualified persons submitted by interested insurance organizations including, but not limited to, the Alliance of American Insurers and the American Insurance Association. One (1) nonvoting healthcare provider representative may be appointed from lists of qualified persons submitted by interested medical organizations including, but not limited to, the Tennessee Medical Association and one (1) nonvoting healthcare provider representative may be appointed from lists of qualified persons submitted by interested hospital organizations including, but not limited to, the Tennessee Hospital Association. One (1) nonvoting health care provider representative shall be a chiropractor who is licensed in this state, one (1) nonvoting health care provider representative shall be a physical therapist who is licensed in this state, and one (1) nonvoting health care provider representative shall be an occupational therapist who is licensed in this state, and these members shall not receive reimbursement for travel expenses. The nonvoting attorney members shall be appointed as follows: one (1) who shall primarily represent injured workers' compensation claimants, who may be appointed from lists of qualified persons submitted by interested justice organizations including, but not limited to, the Tennessee Association for Justice; one (1) who shall primarily represent employers or workers' compensation insurers, who may be appointed from lists of qualified persons submitted by interested defense lawyer organizations including, but not limited to, the Tennessee Defense Lawyers Association; and one (1) who may be appointed from lists of qualified persons submitted by interested legal organizations including, but not limited to the Tennessee Bar Association.
        2. The appointing authorities shall consult with interested groups including, but not limited to, the organizations listed in subdivision (a)(E)(i) to determine qualified persons to fill positions on the council.
      5. The nonvoting members shall be appointed to four-year terms that shall begin on July 1 and terminate on June 30, four (4) years thereafter.
      6. The chair of the commerce and labor committee of the senate, the chair of the consumer and human resources committee of the house of representatives, the commissioner of labor and workforce development and the commissioner of commerce and insurance, or their designees, shall be ex officio, nonvoting members of the council.
    1. Each voting and nonvoting member of the advisory council on workers' compensation shall, upon the expiration of the member's term, be eligible for reappointment and shall serve until a successor is appointed. In the event a member resigns or becomes ineligible for service during the member's term, a successor shall be appointed by the appropriate appointing authority to serve the remainder of the term.
    2. No employer shall discriminate in any manner against an employee who serves on the advisory council because of the employee's service. Employees who serve on the advisory council shall not be denied any benefit from their employer because of the employee's service. Travel expenses of the employee representatives on the council shall be reimbursed pursuant to subsection (b); however, employers may choose to pay the travel expenses of their employees' service on the advisory council according to their own policies.
    1. Notwithstanding § 3-6-304 or any other law to the contrary, and in addition to all other requirements for membership on the council:
      1. Any person registered as a lobbyist pursuant to the registration requirements of title 3, chapter 6 who is subsequently appointed or otherwise named as a member of the council shall terminate all employment and business association as a lobbyist with any entity whose business endeavors or professional activities are regulated by the council, prior to serving as a member of the council. This subdivision (b)(1)(A) shall apply to all persons appointed or otherwise named to the council after July 1, 2010;
      2. No person who is a member of the council shall be permitted to register or otherwise serve as a lobbyist pursuant to title 3, chapter 6 for any entity whose business endeavors or professional activities are regulated by the council during such person's period of service as a member of the council. This subdivision (b)(1)(B) shall apply to all persons appointed or otherwise named to the council after July 1, 2010, and to all persons serving on the council on such date who are not registered as lobbyists; and
      3. No person who serves as a member of the council shall be employed as a lobbyist by any entity whose business endeavors or professional activities are regulated by the council for one (1) year following the date such person's service on the council ends. This subdivision (b)(1)(C) shall apply to persons serving on the council as of July 1, 2010, and to persons appointed to the council subsequent to such date.
    2. A person who violates this subsection (b) shall be subject to the penalties prescribed in title 3, chapter 6.
    3. The bureau of ethics and campaign finance is authorized to promulgate rules and regulations to effectuate the purposes of this subsection (b). All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and in accordance with the procedure for initiating and proposing rules by the ethics commission to the bureau of ethics and campaign finance as prescribed in § 4-55-103.
  1. In addition to all other requirements for membership on the council, all persons appointed or otherwise named to serve as members of the council after July 1, 2010, shall be residents of this state.
  2. Members of the council shall not be paid but may be reimbursed for travel expenses. All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.
  3. The council shall meet at least twice each year. It shall annually review workers' compensation in the state and shall issue a report of its findings and conclusions on or before July 1 of each year. The annual report shall be sent to the governor, the speakers of the house of representatives and the senate, the chair and vice-chair of the special joint committee on workers' compensation, the commissioner of labor and workforce development, the commissioner of commerce and insurance and the clerks of the house of representatives and senate. Notice of the publication of the annual report and all other reports published by the council shall be provided to all members of the general assembly pursuant to § 3-1-114.
  4. In performing its responsibilities, the council's role shall be strictly advisory, but it may:
    1. Make recommendations to the governor, the general assembly, the special joint committee on workers' compensation, the standing committees of each house that review the status of the workers' compensation system, the commissioner of labor and workforce development and the commissioner of commerce and insurance relating to the promulgation or adoption of legislation or rules;
    2. Make recommendations to the commissioner of labor and workforce development and the commissioner of commerce and insurance regarding the method and form of statistical data collections; and
    3. Monitor the performance of the workers' compensation system in the implementation of legislative directives.
  5. The chair, in consultation with the voting members of the council, is authorized to retain staff and professional assistance, such as consultants and actuaries, as the chair deems necessary for the work of the council, subject to budgetary approval in the general appropriations act. For administrative purposes, the council shall be attached to the department of treasury for all administrative matters relating to receipts, disbursements, expense accounts, budget, audit and other related items. The state treasurer shall have administrative and supervisory control over the staff assigned to assist the council. Employees of the council shall not have the status of preferred service employees pursuant to title 8. The autonomy of the council and its authority are not affected by this subsection (g).
  6. The council may develop evaluations, statistical reports and other information from which the general assembly may evaluate the impact of the legislative changes to workers' compensation law, including, but not limited to, the Reform Act of 2004 and subsequent statutory changes to this chapter.
  7. The advisory council shall issue an annual report that includes a summary of significant supreme court decisions relating to workers' compensation, including an explanation of their impact on existing policy. The report shall be due on or before January 15 of each year and shall include, to the extent possible, the decisions that were issued during the preceding calendar year. This annual report shall be sent to the governor, the speaker of the house of representatives, the speaker of the senate, the chair of the consumer and human resources committee of the house of representatives, the chair of the commerce and labor committee of the senate, and the chair and co-chair of the special joint committee on workers' compensation. Notice of the publication of the report shall be provided to all members of the general assembly pursuant to § 3-1-114.
  8. The advisory council on workers' compensation shall, within ten (10) business days of each meeting it conducts, provide a summary of the meeting and a report of all actions taken and all actions recommended to be taken to each member of the consumer and human resources committee of the house of representatives and the commerce and labor committee of the senate.
  9. Whenever any bill is introduced in the general assembly proposing to amend this chapter or to make any change in workers' compensation law, or to make any change in the law that may have a financial or other substantive impact on the administration of workers' compensation law, the standing committee to which the bill is referred may refer the bill to the council. The council's review of bills relating to workers' compensation should include, but not be limited to, bills that propose to amend chapters 3, 6, 7, and 9 of this title, and title 56, chapters 5 and 47. All bills referred to the council shall be reported back to the standing committee to which they were assigned as quickly as reasonably possible. Notwithstanding the absence of a report from the council, the standing committee is free to consider the bill at any time. The chair making the referral shall immediately notify the prime sponsors of the referral and the council shall not review and comment on the proposed legislation until the prime sponsors have been notified. The comments of the council shall describe the potential effects of the proposed legislation on the workers' compensation system and its operations and any other information or suggestions that the council may think helpful to the sponsors, the standing committees or the general assembly. The comments of the council may include recommendations for or against passage of the proposed legislation. Other than reporting the recommendations for or against passage of proposed legislation and responding to any questions that the legislators may have, no staff of the advisory council shall lobby or advocate for or against passage of proposed legislation.
  10. The council shall study and report on the occupational health and safety of employment in Tennessee and make recommendations for safe employment education and training and promote the development of employer-sponsored health and safety programs.

Acts 1992, ch. 900, § 4; 1996, ch. 944, §§ 4-7; 1997, ch. 235, §§ 1, 2; 1997, ch. 533, § 49; 1998, ch. 1024, §§ 13, 20; 1999, ch. 520, § 41; 2000, ch. 852, § 3; 2001, ch. 192, §§ 11, 12; 2002, ch. 695, §§ 1, 2, 6; 2003, ch. 359, § 1; 2004, ch. 962, §§ 26, 27, 30, 43, 45; 2005, ch. 390, § 3; 2006, ch. 645, §§ 1-3; 2008, ch. 1183, §§ 9, 11; 2009, ch. 463, §§ 1-3; 2010, ch. 1087, § 3; 2011, ch. 410, § 10(a); 2012, ch. 622, § 3; 2012, ch. 800, § 49; 2013, ch. 236, § 29.

Code Commission Notes.

The former first sentence of subdivision (a)(1)(E), concerning the terms to be served by non-members beginning with the appointments made in 2003, was deleted as obsolete by the code commission in 2008.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2004, ch. 962, § 51 provided, in part, that for the purpose of promulgating any rule authorized by this act, this act shall take effect June 15, 2004, the public welfare requiring it.

The Reform Act of 2004, referred to in this section, is compiled in Acts 2004, ch. 962.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Acts 2012, ch. 800, § 1 provided that the act, which amended subsection (g), shall be known and cited as the “Tennessee Excellence, Accountability, and Management (T.E.A.M.) Act of 2012.”

The advisory council on workers' compensation, created by this section, terminates June 30, 2020. See §§ 4-29-112, 4-29-241.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

50-6-122. Case management and utilization review — Use of HMOs and PPOs — Legislative intent — Claims by health care providers.

    1. It is the intent of the general assembly that quality medical care services shall be available to injured and disabled employees. It is also the legislative intent to control increasing medical costs in workers' compensation matters by establishing cost control mechanisms to ensure cost-effective delivery of medical care services by employing a program of medical case management and a program to review the utilization and quality of medical care services.
    2. In order to assure that in workers' compensation cases quality medical care is rendered and to control medical care costs, an employer is authorized to use, but is not required to use, health maintenance organizations (HMOs) and preferred provider organizations (PPOs). An HMO or PPO may contract with medical care providers as permitted by law. The contracts are authorized to use, but are not limited to the use of, the following managed care methodologies:
      1. Medical bill review;
      2. Establishment of medical practice guidelines;
      3. Case management, subject to § 50-6-123;
      4. Utilization review, subject to § 50-6-124; and
      5. Peer review programs.
    3. Section 50-6-204(a)(3), relative to medical care, shall apply to any managed care methodology employed pursuant to this section. For the purposes of § 50-6-204(a)(3), physicians and surgeons in the same HMO or PPO are considered to be associated in practice together if they share a common employer for purposes of their clinical practice, or are associated together in a group practice.
  1. A health care provider shall not pursue a private claim against a workers' compensation claimant for all or part of the costs of health care services provided to the claimant by the provider unless:
    1. The injury is finally adjudicated not to be compensable under this chapter;
    2. The physician or surgeon, as provided in § 50-6-204, who was not authorized by the employer at the time the services were rendered, knew that the physician or surgeon was not an authorized physician or surgeon; or
    3. The employee knew that the physician or surgeon was not an authorized physician or surgeon; provided, that subdivision (b)(2) and this subdivision (b)(3) do not apply to emergency care.
  2. [Deleted by 2013 amendment, effective July 1, 2014.]

Acts 1992, ch. 900, § 6; 1996, ch. 944, §§ 8, 10; 2013, ch. 289, §§ 20, 21.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2013, ch. 289, § 103 provided that the act, which amended subdivision (a)(3) and deleted subsection (c), shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, substituted “50-6-204(a)(3)” for “50-6-204(a)(4)” twice in (a)(3); and deleted (c) which read: “(c) A health care provider shall not employ a collection agency or make a report to a credit bureau concerning a private claim against an employer for all or part of the costs of medical care provided to an employee that are not paid by the employer's workers' compensation insurer without having first exhausted all administrative remedies as provided by § 50-6-226(a)(4). The medical director may include the insurer in the administrative process.”

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

50-6-122. Case management and utilization review — Use of HMOs and PPOs — Legislative intent — Claims by health care providers — Collection agencies — Reports to credit bureau. [Applicable to injuries occurring prior to July 1, 2014.]

    1. It is the intent of the general assembly that quality medical care services shall be available to injured and disabled employees. It is also the legislative intent to control increasing medical costs in workers' compensation matters by establishing cost control mechanisms to ensure cost-effective delivery of medical care services by employing a program of medical case management and a program to review the utilization and quality of medical care services.
    2. In order to assure that in workers' compensation cases quality medical care is rendered and to control medical care costs, an employer is authorized to use, but is not required to use, health maintenance organizations (HMOs) and preferred provider organizations (PPOs). An HMO or PPO may contract with medical care providers as permitted by law. The contracts are authorized to use, but are not limited to the use of, the following managed care methodologies:
      1. Medical bill review;
      2. Establishment of medical practice guidelines;
      3. Case management, subject to § 50-6-123;
      4. Utilization review, subject to § 50-6-124; and
      5. Peer review programs.
    3. Section 50-6-204(a)(4), relative to medical care, shall apply to any managed care methodology employed pursuant to this section. For the purposes of § 50-6-204(a)(4), physicians and surgeons in the same HMO or PPO are considered to be associated in practice together if they share a common employer for purposes of their clinical practice, or are associated together in a group practice.
  1. A health care provider shall not pursue a private claim against a workers' compensation claimant for all or part of the costs of health care services provided to the claimant by the provider unless:
    1. The injury is finally adjudicated not to be compensable under this chapter;
    2. The physician or surgeon, as provided in § 50-6-204, who was not authorized by the employer at the time the services were rendered, knew that the physician or surgeon was not an authorized physician or surgeon; or
    3. The employee knew that the physician or surgeon was not an authorized physician or surgeon; provided, that subdivision (b)(2) and this subdivision (b)(3) do not apply to emergency care.
  2. A health care provider shall not employ a collection agency or make a report to a credit bureau concerning a private claim against an employer for all or part of the costs of medical care provided to an employee that are not paid by the employer's workers' compensation insurer without having first exhausted all administrative remedies as provided by § 50-6-226(a)(4). The medical director may include the insurer in the administrative process.

Acts 1992, ch. 900, § 6; 1996, ch. 944, §§ 8, 10.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Attorney General Opinions. Medical fee schedule, OAG 94-100 (9/9/94).

Collateral References.

Liability of health maintenance organizations (HMOs) for negligence of member physicians. 51 A.L.R.5th 271.

Liability of third-party health-care payor for injury arising from failure to authorize required treatment. 56 A.L.R.5th 737.

50-6-123. Case management system for coordinating medical care services.

  1. All case managers, including case manager assistants, coordinating the medical care services provided to employees claiming benefits or handling claims of employees claimed under this chapter shall be certified by the bureau pursuant to this section.
  2. The administrator shall establish, pursuant to the administrator's rulemaking authority, a system of case management for coordinating the medical care services provided to employees claiming benefits under this chapter; provided, however, it is within the discretion of the administrator to provide or deny case management services to any employee who has suffered a workers' compensation injury. Pursuant to the administrator's rulemaking authority, the administrator may establish:
    1. Minimum standards for the professional practice of case managers and case manager assistants; and
    2. A procedure for case managers and case manager assistants to obtain certification if required pursuant to this section.
  3. Any case manager, case manager assistant, or person or entity that employs a case manager who fails to comply with this section, or rules promulgated pursuant to this section, may be subject, after notice of a violation has been provided, to a penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) per violation, at the discretion of the administrator. In addition to any penalty assessed pursuant to this subsection (c), the administrator may also suspend the person's certification as a case manager or case manager assistant if, in the discretion of the administrator, the person has an established pattern of violations of this section.
  4. The bureau shall notify any person who has violated this section of such violation and may assess a penalty, suspend the person's certification, or both. The person shall have fifteen (15) calendar days from the date notice was sent to appeal the decision pursuant to the procedures provided for under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, or to pay the assessed penalty.
  5. Nothing in this section shall prevent an employer from establishing its own program of case management that meets the guidelines promulgated by the administrator in rules.
  6. Medical care, treatment, therapy, or services provided at the employee's residence pursuant to this chapter shall not be considered home health services as defined in § 68-11-201 when provided pursuant to direction of the employee's attending physician in the following specific circumstances only:
    1. By a licensed healthcare provider who routinely provides services to employees at the place of employment, if the services rendered by the provider at the employee's residence are of the same type rendered by the provider at the place of employment; or
    2. By a licensed physical therapist, occupational therapist, or speech therapist practicing independently of a home health agency, when the employee's attending physician determines that it is in the best interest of the employee to be treated by the independent therapist because of the therapist's expertise in workplace injuries.

Acts 1992, ch. 900, § 7; 1996, ch. 944, § 9; 2001, ch. 148, § 1; 2004, ch. 962, §§ 28, 29; 2013, ch. 282, § 1; 2016, ch. 803, § 1.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2016, ch. 803, § 4 provided that the act, which amended this section, shall apply to actions committed on or after January 1, 2017.

The text of this section as was effective for injuries occurring, and actions committed, on or after July 1, 2014, but prior to January 1, 2017 is as follows:

“(a) The administrator shall establish, pursuant to the administrator's rule and regulation-making authority, a system of case management for coordinating the medical care services provided to employees claiming benefits under this chapter.

“(b) Employers may, at their own expense, utilize case management, and, if utilized, the employee shall cooperate with the case management. Case management shall include, but not be limited to:

“(1) Developing a treatment plan to provide appropriate medical care services to an injured or disabled employee;

“(2) Systematically monitoring the treatment rendered and the medical progress of the injured or disabled employee;

“(3) Assessing whether alternate medical care services are appropriate and delivered in a cost-effective manner based on acceptable medical standards;

“(4) Ensuring that the injured or disabled employee is following the prescribed medical care plan; and

“(5) Formulating a plan for return to work with due regard for the employee's recovery and restrictions and limitations, if any.

“(c) The administrator may contract with an independent organization, not owned by or affiliated with any carrier authorized to write workers' compensation insurance in the state, to assist with the administration of this section.

“(d) Nothing in this section shall prevent an employer from establishing its own program of case management that meets the guidelines promulgated by the administrator in rules and regulations.

“(e) Medical care, treatment, therapy or services provided at the employee's residence pursuant to this chapter, shall not be considered home health services as defined in § 68-11-201 when provided pursuant to direction of the employee's attending physician in the following specific circumstances only:

“(1) By a licensed health care provider who routinely provides services to employees at the place of employment, if the services rendered by the provider at the employee's residence are of the same type rendered by the provider at the place of employment; or

“(2) By a licensed physical therapist, occupational therapist or speech therapist practicing independently of a home health agency, when the employee's attending physician determines that it is in the best interest of the employee to be treated by the independent therapist because of the therapist's expertise in workplace injuries.”

Amendments. The 2013 amendment, effective July 1, 2014, substituted “administrator” for “commissioner” in (a), (c), and (d), and substituted “administrator's” for “commissioner's” in (a).

The 2016 amendment, effective January 1, 2017, added (a); redesignated  former (a) as present (b) and rewrote the subsection which read: “The administrator shall establish, pursuant to the administrator's rule and regulation-making authority, a system of case management for coordinating the medical care services provided to employees claiming benefits under this chapter.”; deleted  former (b) which read: “(b) Employers may, at their own expense, utilize case management, and, if utilized, the employee shall cooperate with the case management. Case management shall include, but not be limited to:“(1) Developing a treatment plan to provide appropriate medical care services to an injured or disabled employee;“(2) Systematically monitoring the treatment rendered and the medical progress of the injured or disabled employee;“(3) Assessing whether alternate medical care services are appropriate and delivered in a cost-effective manner based on acceptable medical standards;“(4) Ensuring that the injured or disabled employee is following the prescribed medical care plan; and“(5) Formulating a plan for return to work with due regard for the employee's recovery and restrictions and limitations, if any.”; rewrote (c) which read: “(c) The administrator may contract with an independent organization, not owned by or affiliated with any carrier authorized to write workers' compensation insurance in the state, to assist with the administration of this section.”; added present (d); redesignated former (d) and (e) to be present (e) and (f), respectively; and substituted “administrator in rules” for “administrator in rules and regulations” at the end of present (e).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2016, ch. 803, § 4. January 1, 2017; provided that for purposes of promulgating rules, the act took effect April 14, 2016.

50-6-123. Case management system for coordinating medical care services. [Applicable to injuries occurring prior to July 1, 2014.]

  1. The commissioner shall establish, pursuant to the commissioner's rule and regulation-making authority, a system of case management for coordinating the medical care services provided to employees claiming benefits under this chapter.
  2. Employers may, at their own expense, utilize case management, and, if utilized, the employee shall cooperate with the case management. Case management shall include, but not be limited to:
    1. Developing a treatment plan to provide appropriate medical care services to an injured or disabled employee;
    2. Systematically monitoring the treatment rendered and the medical progress of the injured or disabled employee;
    3. Assessing whether alternate medical care services are appropriate and delivered in a cost-effective manner based on acceptable medical standards;
    4. Ensuring that the injured or disabled employee is following the prescribed medical care plan; and
    5. Formulating a plan for return to work with due regard for the employee's recovery and restrictions and limitations, if any.
  3. The commissioner may contract with an independent organization, not owned by or affiliated with any carrier authorized to write workers' compensation insurance in the state, to assist with the administration of this section.
  4. Nothing in this section shall prevent an employer from establishing its own program of case management that meets the guidelines promulgated by the commissioner in rules and regulations.
  5. Medical care, treatment, therapy or services provided at the employee's residence pursuant to this chapter, shall not be considered home health services as defined in § 68-11-201 when provided pursuant to direction of the employee's attending physician in the following specific circumstances only:
    1. By a licensed health care provider who routinely provides services to employees at the place of employment, if the services rendered by the provider at the employee's residence are of the same type rendered by the provider at the place of employment; or
    2. By a licensed physical therapist, occupational therapist or speech therapist practicing independently of a home health agency, when the employee's attending physician determines that it is in the best interest of the employee to be treated by the independent therapist because of the therapist's expertise in workplace injuries.

Acts 1992, ch. 900, § 7; 1996, ch. 944, § 9; 2001, ch. 148, § 1; 2004, ch. 962, §§ 28, 29.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

    Attorney General Opinions. Access to injured worker, OAG 94-100 (9/9/94).

    Constitutionality of using presumptions to determine reasonableness of case management costs, OAG 98-084 (4/14/98).

    1. Cause of Action Against Employer.

NOTES TO DECISIONS

1. Cause of Action Against Employer.

T.C.A. § 50-6-123 does not expressly or impliedly grant a cause of action to an employee against an employer who fails to perform its case management duties in accordance with the guidelines promulgated by the commissioner. Reed v. Alamo Rent-A-Car, Inc., 4 S.W.3d 677, 1999 Tenn. App. LEXIS 207 (Tenn. Ct. App. 1999).

50-6-124. Utilization review system — Pre-admission review — Penalties for rendering excessive or inappropriate services — Legislative intent — Treatment guidelines.

  1. The administrator of the bureau of workers' compensation shall establish a system of utilization review of selected outpatient and inpatient healthcare providers for employees claiming benefits under this chapter, to be performed by utilization review organizations accredited by either the Utilization Review Accreditation Commission (URAC) or the National Committee for Quality Assurance (NCQA). Utilization review organizations shall be required to provide proof of such accreditation beginning July 1, 2016.
  2. The administrator shall also establish a system of pre-admission review of all hospital admissions, except for emergency services; however, utilization review pursuant to subsection (a) and this subsection (b) shall begin within one (1) working day of all emergency hospital admissions.
  3. Pursuant to the administrator's established system of utilization review, the administrator may contract with an independent utilization review organization, not owned by or affiliated with any carrier authorized to write workers' compensation insurance in the state, to provide utilization review, including peer review.
  4. Nothing in this section shall prevent an employer from electing to provide utilization review; however, if the employee, provider or any other party not contractually bound to the employer's utilization review program disagrees with that employer's utilization review, then that employee, provider or other party shall have recourse to the administrator's utilization review program, as provided for in this section.
  5. Pursuant to the utilization review conducted by the administrator, including providing an opportunity for a hearing, any health care provider who is found by the administrator to have rendered excessive or inappropriate services may be subject to:
    1. A forfeiture of the right to payment for those services that are found to be excessive or inappropriate;
    2. A civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000); or
    3. A temporary or permanent suspension of the right to provide medical care services for workers' compensation claims if the health care provider has established a pattern of violations.
  6. It is the intent of the general assembly to ensure the availability of quality medical care services for injured and disabled employees and to manage medical costs in workers' compensation matters by eradicating prescription drug abuse through the employment of the system established by subsection (a) to review any healthcare provider prescribing one (1) or more Schedule II, III, or IV controlled substances for pain management to an injured or disabled employee for a period of time exceeding ninety (90) days from the initial prescription of such controlled substances.
  7. In consultation with the administrator's medical advisory committee, the administrator shall, by rules to become effective on January 1, 2016, adopt guidelines for the diagnosis and treatment of commonly occurring workers' compensation injuries.
  8. Any treatment that explicitly follows the treatment guidelines adopted by the administrator or is reasonably derived therefrom, including allowances for specific adjustments to treatment, shall have a presumption of medical necessity for utilization review purposes. This presumption shall be rebuttable only by clear and convincing evidence that the treatment erroneously applies the guidelines or that the treatment presents an unwarranted risk to the injured worker.
  9. The administrator may assess a reasonable fee, not to exceed two hundred fifty dollars ($250), for an appeal of any utilization review decision.
    1. Except as otherwise provided in subdivision (j)(2), the system of utilization review established by the administrator or provided by an employer shall not apply to:
      1. Diagnostic procedures ordered in accordance with the treatment guidelines by the authorized treating physician or chiropractor in the first thirty (30) days after the date of injury; or
      2. Diagnostic studies recommended by the treating physician in the event the initial treatment regimen is nonsurgical, without diagnostic testing, and is not successful in returning the injured worker to employment.
    2. A recommended invasive procedure shall be subject to utilization review at any time.
    3. For purposes of this subsection (j):
      1. “Diagnostic procedures” includes, but is not limited to, routine and specialty radiography, magnetic resonance imaging that is not for low back pain without radiculopathy, a computerized tomography scan, a myelogram, an arthrogram, an ultrasound, and electromyogram and nerve conduction velocity testing; and
      2. “Initial treatment” means the first series of treatments or therapies or first two (2) medication trials ordered by the authorized treating physician in accordance with the adopted treatment guidelines within sixty (60) days of a reported injury.

Acts 1992, ch. 900, § 8; 1996, ch. 944, § 11; 1999, ch. 520, § 41; 2012, ch. 1100, § 2; 2013, ch. 282, § 1; 2013, ch. 289, § 22; 2015, ch. 341, §§ 3, 15; 2017, ch. 380, § 1.

Code Commission Notes.

Former subsection (f), concerning commissioner's review of the role of chiropractic and physical therapy services in workers' compensation costs and the determination of whether such services should be included in the utilization review system, was deleted as obsolete by the code commission in 2008.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2012, ch. 1100, § 5 provided that the act, which added subsection (f), shall apply to pain management, including the prescription of Schedule II, III, or IV controlled substances, prescribed on or after July 1, 2012.

Acts 2013, ch. 289, § 103 provided that the act, which added subsections (g)-(i), shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Acts 2017, ch. 380, § 4 provided that the act, which amended this section, shall apply to injuries occurring on or after May 18, 2017.

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, substituted “administrator of labor and workforce development” for “commissioner of labor and workforce development” and “administrator” for “commissioner” throughout.

The 2013 amendment by ch. 289, effective July 1, 2014, added (g)-(i).

The 2015 amendment rewrote (a), which read: “The administrator of the division of workers' compensation shall establish a system of utilization review of selected outpatient and inpatient health care providers to employees claiming benefits under this chapter, by providers qualified pursuant to law or the utilization review accreditation commission.”.

The 2017 amendment added (j).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2017, ch. 380, § 4. May 18, 2017.

50-6-124. Utilization review system — Pre-admission review — Penalties for rendering excessive or inappropriate services — Legislative intent. [Applicable to injuries occurring prior to July 1, 2014.]

  1. The commissioner of labor and workforce development shall establish a system of utilization review of selected outpatient and inpatient health care providers to employees claiming benefits under this chapter, by providers qualified pursuant to law or the utilization review accreditation commission.
  2. The commissioner shall also establish a system of pre-admission review of all hospital admissions, except for emergency services; however, utilization review pursuant to subsection (a) and this subsection (b) shall begin within one (1) working day of all emergency hospital admissions.
  3. Pursuant to the commissioner's established system of utilization review, the commissioner may contract with an independent utilization review organization, not owned by or affiliated with any carrier authorized to write workers' compensation insurance in the state, to provide utilization review, including peer review.
  4. Nothing in this section shall prevent an employer from electing to provide utilization review; however, if the employee, provider or any other party not contractually bound to the employer's utilization review program disagrees with that employer's utilization review, then that employee, provider or other party shall have recourse to the commissioner's utilization review program, as provided for in this section.
  5. Pursuant to the utilization review conducted by the commissioner, including providing an opportunity for a hearing, any health care provider who is found by the commissioner to have rendered excessive or inappropriate services may be subject to:
    1. A forfeiture of the right to payment for those services that are found to be excessive or inappropriate;
    2. A civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000); or
    3. A temporary or permanent suspension of the right to provide medical care services for workers' compensation claims if the health care provider has established a pattern of violations.
  6. It is the intent of the general assembly to ensure the availability of quality medical care services for injured and disabled employees and to manage medical costs in workers' compensation matters by eradicating prescription drug abuse through the employment of the system established by subsection (a) to review any healthcare provider prescribing one (1) or more Schedule II, III, or IV controlled substances for pain management to an injured or disabled employee for a period of time exceeding ninety (90) days from the initial prescription of such controlled substances.

Acts 1992, ch. 900, § 8; 1996, ch. 944, § 11; 1999, ch. 520, § 41; 2012, ch. 1100, § 2.

Code Commission Notes.

Former subsection (f), concerning commissioner's review of the role of chiropractic and physical therapy services in workers' compensation costs and the determination of whether such services should be included in the utilization review system, was deleted as obsolete by the code commission in 2008.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2012, ch. 1100, § 5 provided that the act, which added subsection (f), shall apply to pain management, including the prescription of Schedule II, III, or IV controlled substances, prescribed on or after July 1, 2012.

50-6-125. Medical payment committee.

    1. The administrator shall appoint a medical payment committee. The committee shall hear disputes on medical bill payments between providers and insurers and advise the administrator on issues relating to the medical fee schedule and medical care cost containment in the workers' compensation system. Upon hearing disputes on medical bill payments between providers and insurers, the medical payment committee shall have authority to render a decision on the merits of a dispute. If the medical payment committee determines that a provider or insurer has acted in bad faith in refusing to provide payment for a medical bill or refusing to provide reimbursement for overpayment, the medical payment committee, upon a majority vote, shall refer the malfeasant provider or insurer to the bureau for consideration of assessment of a civil penalty of no more than one thousand dollars ($1,000) per occurrence. Any provider or insurer aggrieved by the assessment of a penalty under this subsection (a) shall have the right to seek review of the penalty assessment in the manner provided by § 50-6-118(c).
    2. The committee shall be comprised of seven (7) voting members appointed by the administrator as follows:
      1. Three (3) members shall be representative of the medical provider industry;
      2. Three (3) members shall be representative of the workers' compensation insurance industry; and
      3. The medical director shall serve as the final member of the committee but shall not cast a vote unless a vote taken by members results in a tie. In that case, the medical director shall cast the deciding vote.
  1. In making appointments, the administrator shall strive to achieve a geographic balance and, in the case of the physician members of the committee, shall assure, to the extent possible, that the membership of the committee reflects the diversity of specialties involved in the medical treatment and management of workers' compensation claimants.
  2. Members of the committee shall serve without compensation but, when engaged in the conduct of their official duties as members of the committee, shall be entitled to reimbursement for travel expenses in accordance with uniform regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.
  3. Each member appointed shall serve a term of four (4) years and may be reappointed by the administrator. If a member leaves the position prior to the expiration of the term, the administrator shall appoint an individual meeting the qualifications of this section to serve the unexpired portion of the term, and the individual may be reappointed by the administrator upon expiration of the term.
  4. This section applies to all disputes of medical bill payments for services provided, pursuant to this chapter, on or after July 1, 2014.

Acts 1992, ch. 900, § 9; 1999, ch. 520, § 41; 2004, ch. 962, § 33; 2005, ch. 105, §§ 1, 2; 2013, ch. 289, § 23; 2014, ch. 903, § 4; 2015, ch. 341, § 15.

Code Commission Notes.

The former second sentence of (c), concerning the terms to be served by members on initial appointment, was deleted as obsolete by the code commission in 2008.

Compiler's Notes. The medical payment committee, created by this section, terminates June 30, 2024. See §§ 4-29-112, 4-29-245.

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2013, ch. 289, § 101 provided that any guidelines issued by the medical care and cost containment committee issued at the time the act, which amended this section, becomes law shall remain in effect and not be added to, altered, or amended until or unless the medical advisory committee, created pursuant to § 50-6-135, or the medical payment committee, created pursuant to § 50-6-125, issue new guidelines pursuant to the act.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment by ch. 289, effective July 1, 2014, rewrote the section which read: “(a) The commissioner shall appoint a medical care and cost containment committee. The committee shall approve regulations pursuant to § 50-6-233(c)(7) before they become effective, assist the commissioner in their implementation, and advise the commissioner, at the commissioner's request, on issues relating to medical care and cost containment in the workers' compensation system.“(b)(1) The committee shall be composed of fifteen (15) voting members appointed by the commissioner as follows:“(A) Three (3) members shall be physicians licensed to practice medicine and surgery under title 63, chapter 6, and shall be appointed from a list of nominees submitted by the Tennessee Medical Association;“(B) Two (2) members shall represent employers and shall be appointed from a list of nominees submitted by the Tennessee Chamber of Commerce and Industry;“(C) One (1) member shall represent employers and shall be appointed from a list of nominees submitted by the Associated Builders and Contractors, Inc.;“(D) Three (3) members shall represent employees and shall be appointed from a list of nominees submitted by the Tennessee AFL-CIO State Labor Council;“(E) Three (3) members shall represent hospitals and shall be appointed from a list of nominees submitted by the Tennessee Hospital Association;“(F) One (1) member shall be a pharmacist and shall be appointed from a list submitted by the Tennessee Pharmacists Association;“(G) One (1) member shall represent the health insurance industry; and“(H) One (1) member shall be a chiropractor and shall be appointed from a list of nominees submitted by the Tennessee Chiropractic Association.“(2) The medical director shall serve as a nonvoting ex officio member of the committee.“(3) An organization that submits a list of nominees shall list at least three (3) nominees for each of the committee positions for which it is requested to submit nominations. If the commissioner finds a list of nominees unsatisfactory, the commissioner shall return the list to the submitting organization. The organization shall submit another list within thirty (30) days. This process shall continue until the commissioner appoints a member. If an organization that is required to submit a list of nominees fails to do so within thirty (30) days of a request for the list by the commissioner, then the commissioner may appoint a member of the commissioner's own choosing.“(4) In making appointments, the commissioner shall strive to achieve a geographic balance and, in the case of the physician members of the committee, shall assure to the extent possible that the membership of the committee reflects the diversity of specialties involved in the medical treatment and management of workers' compensation claimants.“(c) The members of the committee shall be appointed for terms of four (4) years. Each member of the committee shall, upon the expiration of such member's term, be eligible for reappointment and shall serve until a successor is appointed and qualified.“(d) Members of the committee shall serve without compensation but, when engaged in the conduct of their official duties as members of the committee, shall be entitled to reimbursement for travel expenses in accordance with uniform regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.”

The 2014 amendment added (e).

The 2015 amendment substituted “bureau” for “division” in the fourth sentence in (a)(1).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2014, ch. 903, § 14. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-125. Medical care and cost containment committee. [Applicable to injuries occurring prior to July 1, 2014.]

  1. The commissioner shall appoint a medical care and cost containment committee. The committee shall approve regulations pursuant to § 50-6-233(c)(7) before they become effective, assist the commissioner in their implementation, and advise the commissioner, at the commissioner's request, on issues relating to medical care and cost containment in the workers' compensation system.
    1. The committee shall be composed of fifteen (15) voting members appointed by the commissioner as follows:
      1. Three (3) members shall be physicians licensed to practice medicine and surgery under title 63, chapter 6, and shall be appointed from a list of nominees submitted by the Tennessee Medical Association;
      2. Two (2) members shall represent employers and shall be appointed from a list of nominees submitted by the Tennessee Chamber of Commerce and Industry;
      3. One (1) member shall represent employers and shall be appointed from a list of nominees submitted by the Associated Builders and Contractors, Inc.;
      4. Three (3) members shall represent employees and shall be appointed from a list of nominees submitted by the Tennessee AFL-CIO State Labor Council;
      5. Three (3) members shall represent hospitals and shall be appointed from a list of nominees submitted by the Tennessee Hospital Association;
      6. One (1) member shall be a pharmacist and shall be appointed from a list submitted by the Tennessee Pharmacists Association;
      7. One (1) member shall represent the health insurance industry; and
      8. One (1) member shall be a chiropractor and shall be appointed from a list of nominees submitted by the Tennessee Chiropractic Association.
    2. The medical director shall serve as a nonvoting ex officio member of the committee.
    3. An organization that submits a list of nominees shall list at least three (3) nominees for each of the committee positions for which it is requested to submit nominations. If the commissioner finds a list of nominees unsatisfactory, the commissioner shall return the list to the submitting organization. The organization shall submit another list within thirty (30) days. This process shall continue until the commissioner appoints a member. If an organization that is required to submit a list of nominees fails to do so within thirty (30) days of a request for the list by the commissioner, then the commissioner may appoint a member of the commissioner's own choosing.
    4. In making appointments, the commissioner shall strive to achieve a geographic balance and, in the case of the physician members of the committee, shall assure to the extent possible that the membership of the committee reflects the diversity of specialties involved in the medical treatment and management of workers' compensation claimants.
  2. The members of the committee shall be appointed for terms of four (4) years. Each member of the committee shall, upon the expiration of such member's term, be eligible for reappointment and shall serve until a successor is appointed and qualified.
  3. Members of the committee shall serve without compensation but, when engaged in the conduct of their official duties as members of the committee, shall be entitled to reimbursement for travel expenses in accordance with uniform regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.

Acts 1992, ch. 900, § 9; 1999, ch. 520, § 41; 2004, ch. 962, § 33; 2005, ch. 105, §§ 1, 2.

Code Commission Notes.

The former second sentence of (c), concerning the terms to be served by members on initial appointment, was deleted as obsolete by the code commission in 2008.

Compiler's Notes. The medical care and cost containment committee, created by this section, terminates June 30, 2015. See §§ 4-29-112, 4-29-236.

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2015, ch. 34, § 2 provides that, notwithstanding § 4-29-112, the medical care and cost containment committee, created by § 50-6-125, shall terminate and shall cease to exist upon March 27, 2015.

50-6-126. Medical director.

The administrator shall appoint a medical director who shall be the executive secretary and a nonvoting ex officio member of the medical committee. The medical director shall be appointed from a list of three (3) nominees submitted by the Tennessee Medical Association. If the administrator finds the list of three (3) nominees to be unsatisfactory, then the administrator shall return the list to the Tennessee Medical Association and the association shall submit another list of nominees. This process shall be repeated, if necessary, until the administrator selects a nominee to be medical director. The medical director may be a part-time employee, a full-time employee or a contract employee, and shall perform the following functions for which the medical director shall be responsible to the administrator or medical care and cost containment committee, as appropriate:

  1. Institute administrative procedures that will enable the medical director to evaluate medical care to effect optimal treatment in workers' compensation cases;
  2. Inquire into instances where the medical treatment or the physical rehabilitation provided appears to be deficient or incomplete and recommend corrective action when indicated;
  3. Advise on the disposition of complaints of a physician's failure to furnish adequate medical care as required by this law or by rules and regulations adopted by the administrator, the disposition of complaints concerning other aspects of the medical management of a workers' compensation case or the failure to render required reports, and the disposition of complaints of any affected party as to unreasonable interference with the medical management of a workers' compensation case;
  4. Gather data and maintain records necessary to fulfill the medical director's responsibilities;
  5. Conduct studies and prepare and issue reports on the medical aspect of workers' compensation cases;
  6. Expedite the submission and processing of medical reports necessary to the processing of claims;
  7. Advise health care providers of their rights and responsibilities under this chapter and under any rules or regulations promulgated pursuant to this chapter;
  8. Advise the medical care and cost containment committee as to the reasonableness of fees for medical services in particular cases; and
  9. Undertake other functions that may be delegated to the medical director by the administrator.

Acts 1992, ch. 900, § 10; 1999, ch. 520, § 41; 2013, ch. 282, § 1.

Amendments. The 2013 amendment, effective July 1, 2014, substituted “administrator” for “commissioner” throughout the introductory paragraph.

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

50-6-126. Medical director. [Applicable to injuries occurring prior to July 1, 2014.]

The commissioner shall appoint a medical director who shall be the executive secretary and a nonvoting ex officio member of the medical committee. The medical director shall be appointed from a list of three (3) nominees submitted by the Tennessee Medical Association. If the commissioner finds the list of three (3) nominees to be unsatisfactory, then the commissioner shall return the list to the Tennessee Medical Association and the association shall submit another list of nominees. This process shall be repeated, if necessary, until the commissioner selects a nominee to be medical director. The medical director may be a part-time employee, a full-time employee or a contract employee, and shall perform the following functions for which the medical director shall be responsible to the commissioner or medical care and cost containment committee, as appropriate:

  1. Institute administrative procedures that will enable the medical director to evaluate medical care to effect optimal treatment in workers' compensation cases;
  2. Inquire into instances where the medical treatment or the physical rehabilitation provided appears to be deficient or incomplete and recommend corrective action when indicated;
  3. Advise on the disposition of complaints of a physician's failure to furnish adequate medical care as required by this law or by rules and regulations adopted by the administrator, the disposition of complaints concerning other aspects of the medical management of a workers' compensation case or the failure to render required reports, and the disposition of complaints of any affected party as to unreasonable interference with the medical management of a workers' compensation case;
  4. Gather data and maintain records necessary to fulfill the medical director's responsibilities;
  5. Conduct studies and prepare and issue reports on the medical aspect of workers' compensation cases;
  6. Expedite the submission and processing of medical reports necessary to the processing of claims;
  7. Advise health care providers of their rights and responsibilities under this chapter and under any rules or regulations promulgated pursuant to this chapter;
  8. Advise the medical care and cost containment committee as to the reasonableness of fees for medical services in particular cases; and
  9. Undertake other functions that may be delegated to the medical director by the administrator.

Acts 1992, ch. 900, § 10; 1999, ch. 520, § 41.

50-6-127. Public awareness program concerning workers' compensation fraud — Investigations and referrals.

  1. The administrator, in consultation with the commissioner of commerce and insurance and appropriate law enforcement officials, shall implement a public awareness program concerning workers' compensation fraud.
  2. The bureau of workers' compensation shall investigate to determine whether any fraudulent conduct relating to workers' compensation is being practiced, and shall refer to an appropriate law enforcement agency any finding of fraud.

Acts 1992, ch. 900, § 21; 1996, ch. 944, § 12; 1999, ch. 520, § 41; 2000, ch. 852, § 14; 2003, ch. 355, § 16; 2013, ch. 282, § 1; 2015, ch. 341, § 15.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2003, ch. 355, § 66 provided that no expenditure of public funds pursuant to the act shall be made in violation of the provisions of Title VI of the Civil Rights Act of 1964, as codified in 42 U.S.C. § 2000d.

Amendments. The 2013 amendment, effective July 1, 2014, substituted “administrator” for “commissioner” in (a).

The 2015 amendment substituted “bureau” for “division” in (b).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Cross-References. Workers’ compensation fraud, title 56, ch. 47.

50-6-127. Public awareness program concerning workers' compensation fraud — Investigations and referrals. [Applicable to injuries occurring prior to July 1, 2014.]

  1. The commissioner, in consultation with the commissioner of commerce and insurance and appropriate law enforcement officials, shall implement a public awareness program concerning workers' compensation fraud.
  2. The division of workers' compensation shall investigate to determine whether any fraudulent conduct relating to workers' compensation is being practiced, and shall refer to an appropriate law enforcement agency any finding of fraud.

Acts 1992, ch. 900, § 21; 1996, ch. 944, § 12; 1999, ch. 520, § 41; 2000, ch. 852, § 14; 2003, ch. 355, § 16.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2003, ch. 355, § 66 provided that no expenditure of public funds pursuant to the act shall be made in violation of the provisions of Title VI of the Civil Rights Act of 1964, as codified in 42 U.S.C. § 2000d.

The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

Cross-References. Workers' compensation fraud, title 56, ch. 47.

50-6-128. Penalty for employer causing compensable claim to be paid by health insurance or failing to provide necessary medical treatment.

If any employer knowingly, willfully, and intentionally causes a medical or wage loss claim to be paid under health or sickness and accident insurance, or fails to provide reasonable and necessary medical treatment, including a failure to reimburse when the employer knew that the claim arose out of a compensable work-related injury and should have been submitted under its workers' compensation insurance coverage, then a civil penalty of five hundred dollars ($500) shall be assessed against the employer, and the employer may not offset any sickness and accident income benefit paid to the employee against its temporary total disability benefit payment liability due to the employee pursuant to this chapter. The administrator of the bureau of workers' compensation has the authority to assess and collect the civil penalty.

Acts 1992, ch. 900, § 24; 2000, ch. 734, § 1; 2013, ch. 282, § 1; 2015, ch. 341, § 15.

Amendments. The 2013 amendment, effective July 1, 2014, substituted “administrator of the division of workers' compensation” for “commissioner of labor and workforce development” in the last sentence.

The 2015 amendment substituted “bureau” for “division” in the last sentence.

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

NOTES TO DECISIONS

1. Denial of Set-off.

Trial court erred in denying a set-off because the employer did not knowingly, willfully, or intentionally force the employee to use his health and disability insurance benefits in lieu of receiving workers'  compensation benefits. LaPradd v. Nissan N. Am., Inc., — S.W.3d —, 2016 Tenn. LEXIS 6, 2016 Tenn. LEXIS 6 (Tenn. Jan. 14, 2016).

50-6-128. Penalty for employer causing compensable claim to be paid by health insurance or failing to provide necessary medical treatment. [Applicable to injuries occurring prior to July 1, 2014.]

If any employer knowingly, willfully, and intentionally causes a medical or wage loss claim to be paid under health or sickness and accident insurance, or fails to provide reasonable and necessary medical treatment, including a failure to reimburse when the employer knew that the claim arose out of a compensable work-related injury and should have been submitted under its workers' compensation insurance coverage, then a civil penalty of five hundred dollars ($500) shall be assessed against the employer, and the employer may not offset any sickness and accident income benefit paid to the employee against its temporary total disability benefit payment liability due to the employee pursuant to this chapter. The commissioner of labor and workforce development has the authority to assess and collect the civil penalty.

Acts 1992, ch. 900, § 24; 2000, ch. 734, § 1.

NOTES TO DECISIONS

1. Denial of Set-off.

Trial court erred in denying a set-off because the employer did not knowingly, willfully, or intentionally force the employee to use his health and disability insurance benefits in lieu of receiving workers'  compensation benefits. LaPradd v. Nissan N. Am., Inc., — S.W.3d —, 2016 Tenn. LEXIS 6, 2016 Tenn. LEXIS 6 (Tenn. Jan. 14, 2016).

50-6-129. [Repealed.]

Compiler's Notes. Former § 50-6-129 (Acts 1993, ch. 520, § 3; 1999, ch. 520, § 41), concerning rules and regulations pertaining to certificates of compliance with county zoning ordinances, was repealed by Acts 2005, ch. 390, § 4, effective June 9, 2005.

50-6-130. [Repealed.]

Acts 1996, ch. 944, § 2; 1997, ch. 533, § 1; 1999, ch. 520, § 4; 2001, ch. 192, § 1; 2007, ch. 378, § 2, repealed by Acts 2011, ch. 410, § 1(c), effective July 1, 2011.

Compiler's Notes. Former § 50-6-130 concerned the special joint committee on workers’ compensation.

50-6-131. Confidentiality of medical records.

Medical records provided to the bureau of workers' compensation in the course of its activities and the review of settlements pursuant to this chapter shall remain confidential and shall not be considered to be public records.

Acts 1996, ch. 944, § 25; 1999, ch. 520, § 41; 2013, ch. 289, § 25; 2015, ch. 341, § 15.

Compiler's Notes. Acts 1996, ch. 944, which enacted this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, deleted “relative to benefit review conferences” following “activities”.

The 2015 amendment substituted “bureau” for “division”.

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

Cross-References. Confidentiality of public records, § 10-7-504.

50-6-131. Confidentiality of medical records. [Applicable to injuries occurring prior to July 1, 2014.]

Medical records provided to the division of workers' compensation in the course of its activities relative to benefit review conferences and the review of settlements pursuant to this chapter shall remain confidential and shall not be considered to be public records.

Acts 1996, ch. 944, § 25; 1999, ch. 520, § 41.

Compiler's Notes. Acts 1996, ch. 944, which enacted this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

Cross-References. Confidentiality of public records, § 10-7-504.

50-6-132. Report of employers who fail to provide coverage.

No later than December 31 of each year, the bureau of workers' compensation shall produce a report that includes a listing of the name of each covered employer that failed, during the preceding state fiscal year, to provide workers' compensation coverage or qualify as a self-insured employer as required by law. Only those employers whose failure resulted in periods of non-coverage shall be included within the report. The report shall also include the penalty assessed by the bureau and the payment status of the penalty. The report shall be provided to the advisory council on workers' compensation and the chairs of the commerce and labor committee of the senate and the consumer and human resources committee of the house of representatives.

Acts 1999, ch. 217, § 1; 2011, ch. 410, § 10(b); 2013, ch. 236, § 30; 2015, ch. 341, § 15.

Compiler's Notes. For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment by ch. 289, effective July 1, 2014, made identical changes as those made by Acts 2013, ch. 236, § 30.

The 2015 amendment substituted “bureau” for “division” in the first and third sentences.

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-133. Continuing education programs on workers' compensation. [Applicable to injuries occurring prior to July 1, 2014.]

It is the duty of the administrative office of the courts, in consultation with the advisory council on workers' compensation, to develop and provide appropriate continuing education programs on topics related to workers' compensation at each annual meeting. The continuing education shall include both generalized applications of this chapter and the use of the AMA Guides. The program shall also address any specific variances in the application of this chapter throughout the state.

Acts 2004, ch. 962, § 31.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2013, ch. 289, § 27, effective July 1, 2014, amends § 50-6-133 by deleting it in its entirety.  However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law.  Thus, this section remains in effect as to injuries occurring prior to July 1, 2014.

50-6-134. Annual review.

The bureau shall, on or before July 1, 2015, and annually thereafter, review the impact of the Workers' Compensation Reform Act of 2013 on the workers' compensation system in this state and deliver a report of its findings to each member of the general assembly.

Acts 2004, ch. 962, § 41; 2013, ch. 289, § 28; 2015, ch. 341, § 15.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, rewrote the section which read: “The commissioner of commerce and insurance shall, on or before July 1, 2007, and annually thereafter through 2010, review the impact of Acts 2004, ch. 962 on premiums charged by insurers who provide workers' compensation coverage in this state. The commissioner of commerce and insurance is authorized to require the production of any information, documents, books or records from any person who is subject to regulation by the department that the commissioner deems necessary to implement this section.”

The 2015 amendment substituted “bureau” for “division”.

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-134. Annual review. [Applicable to injuries occurring prior to July 1, 2014.]

The commissioner of commerce and insurance shall, on or before July 1, 2007, and annually thereafter through 2010, review the impact of Acts 2004, ch. 962 on premiums charged by insurers who provide workers' compensation coverage in this state. The commissioner of commerce and insurance is authorized to require the production of any information, documents, books or records from any person who is subject to regulation by the department that the commissioner deems necessary to implement this section.

Acts 2004, ch. 962, § 41.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.
  3. Members of the committee shall serve without compensation but, when engaged in the conduct of their official duties as members of the committee, shall be entitled to reimbursement for travel expenses in accordance with uniform regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.
  4. Each member appointed shall serve a term of four (4) years and may be reappointed by the administrator. If a member leaves the position prior to the expiration of the term, the administrator shall appoint an individual meeting the qualifications of this section to serve the unexpired portion of the term. The individual may be reappointed by the administrator upon expiration of the term.

50-6-135. Medical advisory committee.

(1)  The administrator shall appoint a medical advisory committee comprised of practitioners in the medical community having experience in the treatment of workers' compensation injuries, representatives of the insurance industry, employer representatives, and employee representatives to assist the administrator in the development of treatment guidelines and advise the administrator on issues relating to medical care in the workers' compensation system.

The medical director shall serve as a nonvoting ex-officio member of the committee.

In making appointments, the administrator shall strive to achieve a geographic balance and, in the case of the physician members of the committee, shall assure, to the extent possible, that the membership of the committee reflects the diversity of specialties involved in the medical treatment and management of workers' compensation claimants.

Acts 2013, ch. 289, § 24.

Compiler's Notes. The medical advisory committee, created by this section, terminates June 30, 2024. See §§ 4-29-112, 4-29-245.

Acts 2013, ch. 289, § 101 provided that any guidelines issued by the medical care and cost containment committee issued at the time the act, which enacted this section, becomes law shall remain in effect and not be added to, altered, or amended until or unless the medical advisory committee, created pursuant to § 50-6-135, or the medical payment committee, created pursuant to § 50-6-125, issue new guidelines pursuant to the act.

Acts 2013, ch. 289, § 103 provided that the act, which enacted this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Part 2
Claims and Payment of Compensation

50-6-201. Notice of injury.

    1. Every injured employee or the injured employee's representative shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, give or cause to be given to the employer who has no actual notice, written notice of the injury, and the employee shall not be entitled to physician's fees or to any compensation that may have accrued under this chapter, from the date of the accident to the giving of notice, unless it can be shown that the employer had actual knowledge of the accident. No compensation shall be payable under this chapter, unless the written notice is given to the employer within fifteen (15) days after the occurrence of the accident, unless reasonable excuse for failure to give the notice is made to the satisfaction of the tribunal to which the claim for compensation may be presented.
    2. The notice of the occurrence of an accident by the employee required to be given to the employer shall state in plain and simple language the name and address of the employee and the time, place, nature, and cause of the accident resulting in injury or death. The notice shall be signed by the claimant or by some person authorized to sign on the claimant's behalf, or by any one (1) or more of the claimant's dependents if the accident resulted in death to the employee.
    3. No defect or inaccuracy in the notice shall be a bar to compensation, unless the employer can show, to the satisfaction of the workers' compensation judge before which the matter is pending, that the employer was prejudiced by the failure to give the proper notice, and then only to the extent of the prejudice.
    4. The notice shall be given personally to the employer or to the employer's agent or agents having charge of the business at which the injury was sustained by the employee.
  1. In those cases where the injuries occur as the result of gradual or cumulative events or trauma, then the injured employee or the injured employee's representative shall provide notice of the injury to the employer within fifteen (15) days after the employee:
    1. Knows or reasonably should know that the employee has suffered a work-related injury that has resulted in permanent physical impairment; or
    2. Is rendered unable to continue to perform the employee's normal work activities as the result of the work-related injury and the employee knows or reasonably should know that the injury was caused by work-related activities.
  2. [Deleted by 2013 amendment, effective July 1, 2014.]

Acts 1919, ch. 123, § 22; Shan. Supp., § 3608a171; Code 1932, § 6872; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1001; Acts 2001, ch. 219, § 1; 2006, ch. 1014, § 3; 2013, ch. 289, § 29; 2016, ch. 1056, § 1.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which amended subsection (a) and deleted subsection (c), shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Acts 2016, ch. 1056, § 6 provided that section 1 of the act, which amended this section to change the notice provisions, shall apply to injuries that occur on or after July 1, 2016. The 30 day notice period effective prior to July 1, 2016 is applicable to injuries that occurred between July 1, 2014 and June 30, 2016.

Amendments. The 2013 amendment, effective July 1, 2014, added (a)(1)-(3); and deleted (c) which read: “Within thirty (30) calendar days of the notice of injury, the insurer, employer, or self-insured pool or trust shall file with the department, on a form prescribed by the department, a wage statement detailing the employee's wages for the previous fifty-two (52) weeks, unless the employer stipulates that the maximum weekly workers' compensation rate applies in the particular matter. In the event the insurer, employer, or self-insured pool or trust knowingly and intentionally fails to timely file the wage statement, a workers' compensation specialist may deem the employee's compensation rate to be the maximum workers' compensation rate effective on the date of injury. This subsection (c) shall apply only to accidents that result in death or personal injury of such a nature that the injured person either does not return to the person's employment within seven (7) days after the occurrence of the accident or has a permanent impairment resulting from the accident. If the employer, insurer or self-insured pool fails to file the wage statement within thirty (30) days and the maximum rate is imposed, then the employer, insurer or self-insured pool may file a wage statement at a later time. If the late filed wage statement reflects that the compensation rate is less than the maximum compensation rate, the employer, insurer or self-insured pool may then reduce the compensation rate.”

The 2016 amendment substituted “fifteen (15) days” for “thirty (30) days” in the second sentence of (a)(1) and near the end of (b).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2016, ch. 1056, § 6. July 1, 2016.

Cross-References. Notice as to occupational disease, § 50-6-305.

Penalty for late filing of accident reports, § 50-6-118.

Workers' Compensation Appeals Board Decisions. An employee alleged a repetitive motion injury to her right hand and wrist while performing housekeeping and janitorial activities for her employer. The employer argued that because the employee was diagnosed with de Quervain's tenosynovitis on September 27 following “a few week history of right wrist and thumb pain,” and because she conducted her own “research” to determine the possible causes of her condition, she should have given written notice of her alleged work injury within fifteen days of the September 27 diagnosis. The Workers' Compensation Appeals Board disagreed. First, an employee is not required to give written notice of an alleged gradual injury until he or she “knows or reasonably should know” that he or she suffered a “work-related injury” that “resulted in permanent physical impairment.” There was no evidence the employee knew or reasonably should have known on September 27 that her condition was both “work-related” and “resulted in permanent physical impairment.” Second, there was insufficient evidence the employee was restricted from working or rendered unable to perform normal work activities until after her appointment with an orthopedic surgeon on October 26, 2017. It is undisputed she reported her alleged work-related condition to the employer no later than November 3, 2017, which was within fifteen days of the date she was restricted from working by the surgeon. Accordingly, the employer received legally sufficient notice of the employee's alleged work-related condition. Miller v. Old Folks Mission Center, Inc., 2019 TN Wrk Comp App Bd LEXIS 1.

NOTES TO DECISIONS

1. Construction.

T.C.A. § 50-6-201 is abundantly clear that notice must be given in written form by the employee or someone on his behalf; the statute is further abundantly clear that such written notice must be given within 30 days of the occurrence, and the code section does not provide for oral notice. Pevahouse v. Ameristeel, — S.W.3d —, 2017 Tenn. LEXIS 749 (Tenn. Dec. 12, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 750 (Tenn. Dec. 12, 2017).

2. Time Limitations.

Trial court erred in awarding workers'  compensation benefits to a deceased employee's estate because the action was barred by the applicable statute of limitations where the employee's medical records showed that he had a significant hearing loss before being hired by the employer, subsequent tests through the years showed his condition gradually got worse, and the employee never sought a doctor's opinion - even up to the time of his death. Jenkins v. Goodyear Tire & Rubber Co., — S.W.3d —, 2016 Tenn. LEXIS 175 (Tenn. Mar. 15, 2016), aff'd, Estate of Jenkins v. Goodyear Tire & Rubber Co., — S.W.3d —, 2016 Tenn. LEXIS 174 (Tenn. Mar. 15, 2016).

3. Proof of Notice.

Employer did not have actual notice that the employee had incurred a work related injury, even though they knew he was experiencing medical issues; the factors cited were sufficient to establish actual knowledge. Pevahouse v. Ameristeel, — S.W.3d —, 2017 Tenn. LEXIS 749 (Tenn. Dec. 12, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 750 (Tenn. Dec. 12, 2017).

The code section did not provide for oral notice as contended by the employee, and the lower court correctly found that notice was not given to employer. Pevahouse v. Ameristeel, — S.W.3d —, 2017 Tenn. LEXIS 749 (Tenn. Dec. 12, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 750 (Tenn. Dec. 12, 2017).

4. Notice Sufficient.

Trial court correctly determined the employer possessed actual notice of the employee's injury within the statutory period because the employee testified he reported the May 22, 2012, injury to his supervisor on the date of injury, that he told his supervisor that he picked up a sleeper sofa, and he popped his back and he was hurting; and the employee's supervisor testified that, on or about May 22, the employee told him that his back was hurt. Jordan v. City of Murfreesboro, — S.W.3d —, 2017 Tenn. LEXIS 853 (Tenn. Dec. 28, 2017).

50-6-201. Notice of injury. [Applicable to injuries occurring prior to July 1, 2014.]

  1. Every injured employee or the injured employee's representative shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, give or cause to be given to the employer who has no actual notice, written notice of the injury, and the employee shall not be entitled to physician's fees or to any compensation that may have accrued under this chapter, from the date of the accident to the giving of notice, unless it can be shown that the employer had actual knowledge of the accident. No compensation shall be payable under this chapter, unless the written notice is given the employer within thirty (30) days after the occurrence of the accident, unless reasonable excuse for failure to give the notice is made to the satisfaction of the tribunal to which the claim for compensation may be presented.
  2. In those cases where the injuries occur as the result of gradual or cumulative events or trauma, then the injured employee or the injured employee's representative shall provide notice of the injury to the employer within thirty (30) days after the employee:
    1. Knows or reasonably should know that the employee has suffered a work-related injury that has resulted in permanent physical impairment; or
    2. Is rendered unable to continue to perform the employee's normal work activities as the result of the work-related injury and the employee knows or reasonably should know that the injury was caused by work-related activities.
  3. Within thirty (30) calendar days of the notice of injury, the insurer, employer, or self-insured pool or trust shall file with the department, on a form prescribed by the department, a wage statement detailing the employee's wages for the previous fifty-two (52) weeks, unless the employer stipulates that the maximum weekly workers' compensation rate applies in the particular matter. In the event the insurer, employer, or self-insured pool or trust knowingly and intentionally fails to timely file the wage statement, a workers' compensation specialist may deem the employee's compensation rate to be the maximum workers' compensation rate effective on the date of injury. This subsection (c) shall apply only to accidents that result in death or personal injury of such a nature that the injured person either does not return to the person's employment within seven (7) days after the occurrence of the accident or has a permanent impairment resulting from the accident. If the employer, insurer or self-insured pool fails to file the wage statement within thirty (30) days and the maximum rate is imposed, then the employer, insurer or self-insured pool may file a wage statement at a later time. If the late filed wage statement reflects that the compensation rate is less than the maximum compensation rate, the employer, insurer or self-insured pool may then reduce the compensation rate.

Acts 1919, ch. 123, § 22; Shan. Supp., § 3608a171; Code 1932, § 6872; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1001; Acts 2001, ch. 219, § 1; 2006, ch. 1014, § 3.

Cross-References. Notice as to occupational disease, § 50-6-305.

Penalty for late filing of accident reports, § 50-6-118.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 530-532.

Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 29.

Law Reviews.

Mass Tort Litigation in Tennessee (Paul Campbell, III and Hugh J. Moore, Jr.), 53 Tenn. L. Rev. 221 (1986).

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

The Exclusiveness of an Employee's Workers' Compensation Remedy Against His Employer (Joseph H. King, Jr.), 55 Tenn. L. Rev. 405 (1988).

NOTES TO DECISIONS

1. Construction.

The words “occurrence of the accident,” are construed in accordance with the express terms and not as meaning a subsequent date when the seriousness of the injury has become apparent, such construction being consistent with the purpose of protecting the employer from unfounded demands. Ware v. Illinois C. R. Co., 153 Tenn. 144, 281 S.W. 927, 1925 Tenn. LEXIS 13 (1926).

2. Notice Requirements in General.

Unless the employer has actual knowledge of an accident, the injured employee is not entitled to any compensation accruing before written notice to employer, and unless such notice is given within 30 days of the accident, no compensation shall be payable unless a reasonable excuse for the failure is made to the satisfaction of the tribunal trying the claim. Black Diamond Collieries v. Deal, 144 Tenn. 465, 234 S.W. 322, 1921 Tenn. LEXIS 46 (1921); Brookside Mills v. Harrison, 158 Tenn. 86, 11 S.W.2d 679, 1928 Tenn. LEXIS 126 (1928).

Written notice to the employer is not necessary to entitle the employee to compensation prior to the time notice must be given; but, unless notice is given within the 30-day period, the right to compensation ceases. Meade Fiber Corp. v. Starnes, 147 Tenn. 362, 247 S.W. 989, 1922 Tenn. LEXIS 48 (1923).

Suit under this statute must be dismissed if the employee has failed to give the written notice required by this section. Brookside Mills v. Harrison, 158 Tenn. 86, 11 S.W.2d 679, 1928 Tenn. LEXIS 126 (1928).

Giving of notice is not an act precedent to filing compensation suit, but is precedent to recovery unless the giving of notice is excused. R. W. Hartwell Motor Co. v. Hickerson, 160 Tenn. 513, 26 S.W.2d 153, 1929 Tenn. LEXIS 127 (1930).

Provision as to notice indicates that the general assembly could not have intended accidental injuries to include diseases developing by gradual process. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931). But see, part 3 of this chapter.

Compensation claimant must show either notice or that notice was excused or waived. York v. Federal Chemical Co., 188 Tenn. 63, 216 S.W.2d 725, 1949 Tenn. LEXIS 316 (1949).

The fact that employee became suddenly ill while at work does not charge the employer with knowledge that an accident occurred where the employee made no mention of such accident. Aluminum Co. of America v. Rogers, 211 Tenn. 187, 364 S.W.2d 358, 1962 Tenn. LEXIS 355 (1962).

Action of employee of informing employer that she was going to have to quit work in the reasonably near future because of pain she was suffering in her thumb and hand did not amount to notice of accident or injury where employee at no time gave notice that there was any connection between her employment and her condition and of any accidental injury. International Playing Card & Label Co. v. Broyles, 214 Tenn. 530, 381 S.W.2d 888, 1964 Tenn. LEXIS 503 (1964).

Written notice of injury may be excused by waiver based on conduct of the employer or his representatives in recognition of the liability and by excuse based on various grounds of inability or faultless omission of the employee. Gluck Bros., Inc. v. Breeden, 215 Tenn. 587, 387 S.W.2d 825, 1965 Tenn. LEXIS 636 (1965).

Whether there is reasonable excuse for failure to give notice required by the statute is a question of fact. A. C. Lawrence Leather Co. v. Britt, 220 Tenn. 444, 414 S.W.2d 830, 1967 Tenn. LEXIS 425 (1967), rehearing denied, 220 Tenn. 457, 418 S.W.2d 660, 1967 Tenn. LEXIS 426 (1967).

Where defendant had actual knowledge of boiler explosion which caused the injury, there was no showing of prejudice to the employer and the employee was suffering from an impaired capacity to notify because of mental condition, supreme court would not disturb lower court's decision that there was reasonable excuse for failure to give notice. Gluck Bros., Inc. v. Pollard, 221 Tenn. 383, 426 S.W.2d 763, 1968 Tenn. LEXIS 471 (1968).

Where in 1964 plaintiff suffered an accident resulting in a ruptured disc and he was examined by a physician who reported to the company such fact, although it did not advise the plaintiff, the notice at that time was sufficient and failure to notify company again in 1966, when after aggravation of the injury plaintiff was advised to cease work, did not bar the claim. Ward v. Consolidation Coal Co., 406 F.2d 676, 1969 U.S. App. LEXIS 9054 (6th Cir. Tenn. 1969).

Plaintiff's statement to company nurse that she had a catch in her hip did not constitute notice under this section of a job related injury. McKinney v. Berkline Corp., 503 S.W.2d 912, 1974 Tenn. LEXIS 537 (Tenn. 1974).

Employee furnished adequate notice of back injury when, after a series of work related incidents, he informed his employer that he was unable to continue in duties assigned him as printing mold operator because of back pain. St. Paul Ins. Co. v. Waller, 524 S.W.2d 478, 1975 Tenn. LEXIS 666 (Tenn. 1975).

Where plaintiff's employer had actual knowledge of plaintiff's injury, no written notice was required. Giles County Board of Education v. Hickman, 547 S.W.2d 944, 1977 Tenn. LEXIS 577 (Tenn. 1977); CNA Ins. Co. v. Transou, 614 S.W.2d 335, 1981 Tenn. LEXIS 420 (Tenn. 1981).

There is no requirement that an employee give notice of each of several injuries he received in an on-the-job accident. He is in compliance with the statutory requirement of notice if he notifies his employer of the accident and the fact that he has suffered an injury. The nature and extent of the employee's injuries, and the issue of medical causation, usually come to light in the course of treatment of the employee's injuries. Quaker Oats Co. v. Smith, 574 S.W.2d 45, 1978 Tenn. LEXIS 675 (Tenn. 1978).

In order for a communication to constitute either written notice or actual knowledge on the part of the employer it must be calculated to reasonably convey the idea to the employer that the employee claims to have suffered an injury arising out of and in the course of her employment. Masters v. Industrial Garments Mfg. Co., 595 S.W.2d 811, 1980 Tenn. LEXIS 422 (Tenn. 1980).

Telephone communication between plant nurse and plaintiff's sister, wherein sister informed plant nurse that the reason plaintiff had not returned to work was because plaintiff was “in a bad shape with his back,” was not a communication which reasonably conveyed the idea to the employer that plaintiff suffered an injury arising out of and in the course of his employment so as to impute to the employer the required actual knowledge to satisfy the notice statute. Duke v. ITT Telecommunications Corp., 655 S.W.2d 950, 1983 Tenn. LEXIS 708 (Tenn. 1983).

It is the reasonableness of the employee's actions, rather than the employer's actions, which determine whether an employee's failure to give notice is excused. Pentecost v. Anchor Wire Corp., 695 S.W.2d 183, 1985 Tenn. LEXIS 538 (Tenn. 1985).

Once the employee is aware, or reasonably should have been aware, that he has sustained a compensable injury, the employee must comply with the notice provisions of T.C.A. § 50-6-201, whether the employee has sustained a gradual injury or an injury from one single event. Lyle v. Exxon Corp., 746 S.W.2d 694, 1988 Tenn. LEXIS 172 (Tenn. 1988).

The action of the supervisor, shifting the plaintiff to lighter-duty work on the day of her injury, was circumstantial evidence of actual knowledge that the plaintiff had sustained an injury. Raines v. Shelby Williams Industries, Inc., 814 S.W.2d 346, 1991 Tenn. LEXIS 273 (Tenn. 1991).

The evidence that the company nurse had actual knowledge of plaintiff's accidental injury was such that it was incumbent upon the defendant to have the company nurse deny it, if in fact she had no such knowledge. Raines v. Shelby Williams Industries, Inc., 814 S.W.2d 346, 1991 Tenn. LEXIS 273 (Tenn. 1991).

3. —To Employer's Agent or Representative.

Timely notice to the agent or representative of the employer is sufficient notice to the employer, provided the agent or representative to whom notice is given has actual or apparent authority to receive notice on behalf of the employer. Kirk v. Magnavox Consumer Electronics Co., 665 S.W.2d 711, 1984 Tenn. LEXIS 742 (Tenn. 1984); Bogus v. Manpower Temporary Services, 823 S.W.2d 544, 1992 Tenn. LEXIS 26 (Tenn. 1992).

Trial court properly dismissed an employee's workers'  compensation claim because the employee failed to provide notice of her injury; there was nothing to suggest that any of the officials present knew or should have known that the employee had sustained an injury, and the evidence did not preponderate against the trial court's implicit finding that a telephone call the employee's her primary care physician made to the employer failed to provide the employer with actual knowledge of the injury. Nuchols v. Blount County, — S.W.3d —, 2014 Tenn. LEXIS 667 (Tenn. Sept. 19, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 672 (Tenn. Sept. 19, 2014).

4. —Gradually Occurring Injury.

Notice requirements for gradual injuries are the same as in occupational disease cases and the statute of limitations commences to run when the latent effect of the injury culminates in a disability which is traceable to the injury as the primary cause and which is apparent to the employee or could have been discovered by the exercise of reasonable care and diligence. Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65, 1961 Tenn. LEXIS 353 (1961).

Where employee who gradually developed a protruded or herniated disc as a result of strain or exertion involved in lifting heavy freight, gave notice to employer within 30 days after he ceased work, the provisions of this section were complied with. Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964).

In a case of continuous and gradual deterioration over several years resulting in total disability and discharge from work, the notice given the first day the injury occurred was sufficient, the court rejecting the contention that the employee had 30 days from his last day of work to give notice. Osborne v. Burlington Industries, Inc., Klopman Div., 672 S.W.2d 757, 1984 Tenn. LEXIS 814 (Tenn. 1984).

In a gradually-occurring injury case, whether the employee knew or reasonably should have known that he had sustained a work-related injury prior to learning of the doctor's unequivocal statement on May 14, 2002, was a question of fact; the employee testified that he knew that he had a preexisting condition but did not know that it was compensable until his doctor's May 14, 2002 letter. Although the employer argued that the employee knew his condition was work related in 2001, because the employee did not reasonably know that his condition was work-related until May 14, 2002, pursuant to T.C.A. § 50-6-201(b), his notice to his employer on May 22, 2002, was timely. Raymond Banks v. UPS, 170 S.W.3d 556, 2005 Tenn. LEXIS 654 (Tenn. Aug. 18, 2005).

Because T.C.A. § 50-6-201(b) excuses an employee from the 30-day notice requirement until he knows or reasonably should know that he has sustained a work-related injury, the barrier to recovery in T.C.A. § 50-6-201(a) should not apply. Therefore, because the employee was unaware that he had a work-related injury at the time of his surgery on November 5, 2001, his failure to notify the employer on or before that date did not bar him from receiving temporary total disability benefits between the date of his surgery and the date he returned to work. Raymond Banks v. UPS, 170 S.W.3d 556, 2005 Tenn. LEXIS 654 (Tenn. Aug. 18, 2005).

Employee's original oral notice to his employer about his injury did not constitute notice as contemplated by T.C.A. § 50-6-201, and did not start the running of the statute of limitations; in cases involving a gradually-occurring injury, such as carpal tunnel syndrome, the last-day-worked rule applied where the employee has not given the required notice. Barnett v. Earthworks Unlimited, Inc., 197 S.W.3d 716, 2006 Tenn. LEXIS 635 (Tenn. 2006), overruled, Jacks v. East Tenn. Mech. Contrs., Inc., — S.W.3d —, 2009 Tenn. LEXIS 526 (Tenn. Aug. 24, 2009).

5. —Occupational Diseases.

Notice in occupational disease case is the same as that required in a case of accidental injury. Wilson v. Van Buren County, 196 Tenn. 487, 268 S.W.2d 363, 1954 Tenn. LEXIS 411 (1954).

Claimant in workers' compensation case who first claimed compensation for anthracosis (lung disease) six years after discontinuing work in coal mine was not precluded from recovery, where evidence established he gave notice of the disease within 30 days after he knew of it and instituted suit within one year, as required by statutes of Tennessee. Tinker v. Bessemer Coal, Iron & Land Co., 227 F. Supp. 710, 1964 U.S. Dist. LEXIS 8232 (E.D. Tenn. 1964).

When claimant gave notice within 30 days after he had been advised by doctor that he had silicosis, which was first knowledge he had that he was suffering from the disease, although he had previously suffered from shortness of breath, notice was timely given. Wormsley v. Consolidation Coal Co., 278 F. Supp. 698, 1967 U.S. Dist. LEXIS 7806 (E.D. Tenn. 1967), aff'd, 408 F.2d 79, 1969 U.S. App. LEXIS 13447 (6th Cir. Tenn. 1969).

6. Notice Requirements as to Minors.

Since under § 50-6-210, a widow of employee had right to claim compensation for both a minor child and herself, it was her duty to give notice required by this section and § 50-6-202 and failure to do so or to give reasonable excuse barred recovery, though the child was only five years old and without a regular guardian. Patten Hotel Co. v. Milner, 145 Tenn. 632, 238 S.W. 75, 1921 Tenn. LEXIS 101 (1921).

Minor dependents of deceased worker who were under 16 years of age were not bound by the requirements of this section as to notice prior to the appointment of a guardian and where a guardian was not appointed until after the expiration of the 30-day period notice was excused. McClain v. Kingsport Improv. Corp., 147 Tenn. 130, 245 S.W. 837, 1922 Tenn. LEXIS 26 (1922).

The requirement of this section that an employee shall give notice to the employer within 30 days after the injury is applicable to a minor employee more than 18 years of age at the time of the injury, because such employee occupies the status of an adult. Campbell v. Bon Air Coal & Iron Corp., 151 Tenn. 132, 268 S.W. 377, 1924 Tenn. LEXIS 53 (1925).

Every injured employee must give notice as prescribed by the statute even though he is a minor, unless there is a reasonable excuse for not doing so. Moore v. Nashville Union Stock Yards, Inc., 169 Tenn. 638, 90 S.W.2d 524, 1935 Tenn. LEXIS 91 (1936).

Minor employee 17 years of age at the time of injury was not excused from giving the required notice by reason of such minority. Moore v. Nashville Union Stock Yards, Inc., 169 Tenn. 638, 90 S.W.2d 524, 1935 Tenn. LEXIS 91 (1936).

7. Delayed Notice — Effect.

A delay in giving the notice prevents a recovery of physician's fees and of compensation for the period before the notice was given, but does not prevent recovery of any compensation. Vesta Gas Range Mfg. Co. v. Payne, 147 Tenn. 180, 246 S.W. 115, 1922 Tenn. LEXIS 31 (1922).

Where employee suffered a sharp pain in the region of his abdomen and shortly thereafter noticed a protrusion but continued working without giving notice for more than 30 days when his condition became too painful to continue whereupon he consulted his physician who operated on him for hernia and evidence did not disclose any excuse for failure of employee to give notice, employee was not entitled to compensation. McCarty v. Musgrave Pencil Co., 199 Tenn. 582, 288 S.W.2d 444, 1956 Tenn. LEXIS 356 (1956).

Where employee did not give notice within 30 days of the accident, but the delay was reasonable under the circumstances, the employee gave timely notice upon the discovery that he had sustained a compensable injury. Lyle v. Exxon Corp., 746 S.W.2d 694, 1988 Tenn. LEXIS 172 (Tenn. 1988).

8. Knowledge or Lack of Prejudice of Employer — Effect.

Failure to give notice as required by this section was excused by employer's promise of continued employment, made immediately after the injury, and other acts. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

Failure to give written notice required by this section was reasonably excused where employee told foreman when the accident occurred and was directed to office porter who cared for the wound after which the employee resumed work, especially where neither employee nor porter regarded injury as serious at the time. Ware v. Illinois C. R. Co., 153 Tenn. 144, 281 S.W. 927, 1925 Tenn. LEXIS 13 (1926).

Where a member of the county court was with county employee when he was killed and the chairman of county court was notified and prepared a report which he sent to insurance company and investigated the case, trial judge's decision, within his discretion, that failure to give notice as required by this section was excused was proper. Washington County v. Evans, 156 Tenn. 197, 299 S.W. 780, 1927 Tenn. LEXIS 103 (1927).

Trial court properly excused failure to give notice, where employer and insurer knew of the facts of the injury. Kingsport Silk Mills v. Cox, 161 Tenn. 470, 33 S.W.2d 90, 1930 Tenn. LEXIS 31 (1930).

Proof merely of knowledge of employer or of lack of prejudice or both does not excuse failure to give notice. Marshall Const. Co. v. Russell, 163 Tenn. 410, 43 S.W.2d 208, 1931 Tenn. LEXIS 130 (1931).

Knowledge of employer and lack of prejudice are elements to be considered by the supreme court as affecting the reasonableness of the excuse made. Marshall Const. Co. v. Russell, 163 Tenn. 410, 43 S.W.2d 208, 1931 Tenn. LEXIS 130 (1931).

Employer had actual notice of injury where accident was discussed at lunch hour by chief engineer in charge of labor and other employees. Hotel Claridge Co. v. Blank, 169 Tenn. 575, 89 S.W.2d 758, 1935 Tenn. LEXIS 85 (1936).

Where there was some question as to which of two mills the injured worker was an employee of but where an official who was president of both mills came on the scene immediately after the employee was injured, there was a waiver of the requirement of notice as to both organizations. Riverside Mill Co. v. Parsons, 176 Tenn. 381, 141 S.W.2d 895, 1939 Tenn. LEXIS 128 (1940).

Where employee told foreman that he had hurt his back a few minutes after accident and reported to company physician and further reported second accident to physician who sent a written report of second accident to company, finding of trial court that employee had a reasonable excuse for failing to give written notice within 30-day period was justified. Tennessee Products Corp. v. Gravitt, 182 Tenn. 54, 184 S.W.2d 164, 1945 Tenn. LEXIS 198 (1945).

Written notice requirement did not apply where employer had actual notice of employee's death a few minutes after it occurred and had ample opportunity to make investigation. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

Employer was prejudiced by failure of employee to give notice of knocked out thumb for period of six weeks where infection developed and thumb had to be amputated. York v. Federal Chemical Co., 188 Tenn. 63, 216 S.W.2d 725, 1949 Tenn. LEXIS 316 (1949).

Where general manager found out about accident by independent means, made an investigation of the same and visited injured employee in the hospital, employer had actual notice of the accident and the giving of written notice was excused. Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372, 1954 Tenn. LEXIS 458 (1954).

Workers' compensation claimant was excused from giving statutory written notice of injury in discretion of trial court, where employer had actual notice and claimant was physically unable to act within 30 days. Bond Bros., Inc. v. Spence, 198 Tenn. 316, 279 S.W.2d 509, 1955 Tenn. LEXIS 374 (1955).

Actual knowledge of injury by employer amounts to a waiver of written notice. Leonard v. Atlas Powder Co., 152 F. Supp. 81, 1956 U.S. Dist. LEXIS 2259 (D. Tenn. 1957), aff'd, 245 F.2d 676, 1957 U.S. App. LEXIS 3270 (6th Cir. Tenn. 1957); Ward v. North American Rayon Corp., 211 Tenn. 535, 366 S.W.2d 134, 1963 Tenn. LEXIS 378 (1963).

Where defendant had actual notice through manager of restaurant on day of occurrence of accident, petitioner, who was not able to read or write, was excused from giving written notice. Tripp v. Hodge, 202 Tenn. 386, 304 S.W.2d 498, 1957 Tenn. LEXIS 403 (1957).

Where director of hospital and supervisor of nurses observed nurses' aide being helped up from the floor after she had fallen and employee notified director when she became aware that pain in her back might have resulted from the fall, hospital received adequate notice even though such notice to the director was not within 30 days of the fall. Laughlin Clinic, Inc. v. Henley, 208 Tenn. 252, 345 S.W.2d 675, 1961 Tenn. LEXIS 418 (1961).

Lack of prejudice alone on the part of the employer is not sufficient to excuse notice. Aluminum Co. of America v. Rogers, 211 Tenn. 187, 364 S.W.2d 358, 1962 Tenn. LEXIS 355 (1962).

Where evidence was to the effect that employee told his foreman on September 4 that he was sick and spitting up blood whereupon employee was sent to first aid department where he was examined by plant doctor whom he told that he was sick, nervous, spitting up blood and “broke down with poison”, and employee further testified that he did not know of the nature and extent of his injuries at that time and that he gave written notice on November 2, evidence was sufficient to sustain chancellor's finding that employer had actual notice of the injuries and that employee was excused from giving written notice at an earlier date. Ward v. North American Rayon Corp., 211 Tenn. 535, 366 S.W.2d 134, 1963 Tenn. LEXIS 378 (1963).

Employer's knowledge that employee became ill at work does not necessarily of itself charge the employer with notice that such illness constituted or resulted in compensable injury. Smith v. Tennessee Furniture Industries, Inc., 212 Tenn. 291, 369 S.W.2d 721, 1963 Tenn. LEXIS 423 (1963).

In determining whether there is reasonable excuse to give notice otherwise required by this section, the courts consider actual knowledge, lack of prejudice and capacity of the employee to timely notify. Gluck Bros., Inc. v. Pollard, 221 Tenn. 383, 426 S.W.2d 763, 1968 Tenn. LEXIS 471 (1968).

Where the employer already had knowledge of an accident, the filing of a complaint alleging that injury had resulted, within the 30-day period for the giving of notice, constituted written notice under T.C.A. §§ 50-6-201 and 50-6-202. Moon v. Auto-Owners Ins. Co., 736 S.W.2d 92, 1987 Tenn. LEXIS 968 (Tenn. 1987).

Where employee's leave of absence report, which described the employee's injury, was signed by her supervisor and department director within 30 days of the incident, the employer had actual knowledge of the place, nature and cause of the injury, and the employee's oral misidentification of the time of the injury was not such a defect as to require a finding of lack of notice. Clarendon v. Baptist Memorial Hosp., 796 S.W.2d 685, 1990 Tenn. LEXIS 322 (Tenn. 1990).

Where within 30 days after plaintiff's accident the plaintiff received a phone call from an official of her general employer soliciting information about her claim, the general employer had actual notice of plaintiff's injury. Bogus v. Manpower Temporary Services, 823 S.W.2d 544, 1992 Tenn. LEXIS 26 (Tenn. 1992).

Where the employer had actual knowledge of the occurrence and as much knowledge of the nature of the injury as did the employee, the employer was not prejudiced by the employee's failure to give written notice. McCaleb v. Saturn Corp., 910 S.W.2d 412, 1995 Tenn. LEXIS 629 (Tenn. Special Workers' Comp. App. Panel 1995), review denied, 1995 Tenn. LEXIS 664 (Tenn. Nov. 2, 1995).

9. Employee's Superior Given Notice.

Where an injured employee was employed by the chief engineer of the company, who was the injured employee's superior, notice to him of injury was notice to the employer. Hotel Claridge Co. v. Blank, 169 Tenn. 575, 89 S.W.2d 758, 1935 Tenn. LEXIS 85 (1936).

Where claimant notified his immediate superior at the end of the shift, who in turn reported accident to the foreman, the employer had notice of the accident, although none of the parties, at the time, knew that any serious injury resulted. Patterson v. Bessemer Coal, Iron & Land Co., 192 F. Supp. 805, 1961 U.S. Dist. LEXIS 4261 (E.D. Tenn. 1961).

In this state, while knowledge of a fellow worker of injury to claimant under workers' compensation cannot be imputed to the employer, if an employee's superior is given notice of the accident and injury, this constitutes notice to the employer. Gluck Bros., Inc. v. Breeden, 215 Tenn. 587, 387 S.W.2d 825, 1965 Tenn. LEXIS 636 (1965).

Uncontradicted testimony to effect that foreman visited employee in hospital where foreman was informed that employee had suffered a heart attack at work was sufficient to sustain finding that employer had actual knowledge of the heart attack. Gluck Bros., Inc. v. Breeden, 215 Tenn. 587, 387 S.W.2d 825, 1965 Tenn. LEXIS 636 (1965).

10. Knowledge of Fellow Employee.

Knowledge of a fellow worker of an employee's injury cannot be imputed to the employer so as to excuse failure to give notice required by this section. Brookside Mills v. Harrison, 158 Tenn. 86, 11 S.W.2d 679, 1928 Tenn. LEXIS 126 (1928); York v. Federal Chemical Co., 188 Tenn. 63, 216 S.W.2d 725, 1949 Tenn. LEXIS 316 (1949).

Finding for a claimant on a notice issue in a workers'  compensation case was proper because the claimant testified that he told the employer's apartment manager of his injury immediately after it happened and that she told him she would notify her supervisor; although the manager disputed this, the trial court accredited the claimant's testimony and the evidence did not preponderate against the trial court's finding on the notice issue. Stewart v. Westfield Ins. Co., — S.W.3d —, 2012 Tenn. LEXIS 66 (Tenn. Feb. 16, 2012), aff'd, — S.W.3d —, 2012 Tenn. LEXIS 67 (Tenn. Feb. 16, 2012).

11. Notice to Special Employer.

Where plaintiff knew when he was hired that all of his work would actually be performed for various customers of his general employer, the special employer for whom the plaintiff actually performed his work was a co-employer with the general employer of the plaintiff at the time of his alleged injury. The immediate supervisor over contract employees for the special employer was also the representative of the general employer for the purpose of workers' compensation notice of injury, as plaintiff's primary contact with the general employer. Bogus v. Manpower Temporary Services, 823 S.W.2d 544, 1992 Tenn. LEXIS 26 (Tenn. 1992).

12. Employee's Ignorance of Injury or Seriousness Thereof.

Ignorance without fault of the employee of the serious nature of the injury is an element to be considered as affecting the reasonableness of the excuse for failure to give notice or the justice of the application of the doctrine of waiver. Marshall Const. Co. v. Russell, 163 Tenn. 410, 43 S.W.2d 208, 1931 Tenn. LEXIS 130 (1931). See also Ware v. Illinois C. R. Co., 153 Tenn. 144, 281 S.W. 927, 1925 Tenn. LEXIS 13 (1926).

Where failure to give notice resulted in no prejudice and employee was ignorant that he had suffered an injury sufficient to justify a demand for compensation until hemorrhages developed four weeks later, a finding for petitioner will not be disturbed. Marshall Const. Co. v. Russell, 163 Tenn. 410, 43 S.W.2d 208, 1931 Tenn. LEXIS 130 (1931). See also Sears-Roebuck & Co. v. Starnes, 160 Tenn. 504, 26 S.W.2d 128, 1929 Tenn. LEXIS 126 (1930).

Ignorance of employee of injury arising from the accident until apprised that cancer had developed was an excuse for failing to give notice within the 30-day period. McBrayer v. Dixie Mercerizing Co., 176 Tenn. 560, 144 S.W.2d 764, 1940 Tenn. LEXIS 101 (1940).

Where employee reported injury to employer's foreman immediately after it happened and as fully as he knew at the time but did not know enough about injury at the time it happened to give the statutory notice within the statutory time and did not give written notice until several months later when he found out about resultant injury to his back, employee was excused from giving written notice as provided by this section. Edwards v. Harvey, 194 Tenn. 603, 253 S.W.2d 766, 1952 Tenn. LEXIS 428 (1952).

Ignorance of the serious nature of the injury, or an injury insufficient to justify any complaint, is a matter which is properly to be considered by the court in determining the reasonableness of the excuse of the employee for failure to give written notice as required by the statute. Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65, 1961 Tenn. LEXIS 353 (1961).

Where evidence shows that plaintiff with a second grade education did not know he was suffering an occupational disease, though he was recurrently ill for some six years, then the statute of limitations and required notice period began to run only when he was actually informed of the nature of his illness. Phillips v. Consolidation Coal Co., 325 F. Supp. 1015, 1970 U.S. Dist. LEXIS 10793 (E.D. Tenn. 1970), aff'd, McCoy v. Consolidation Coal Co., 443 F.2d 62, 1971 U.S. App. LEXIS 10080 (6th Cir. Tenn. 1971); Davis v. Travelers Ins. Co., 496 S.W.2d 458, 1973 Tenn. LEXIS 470 (Tenn. 1973).

The trial court was correct in concluding that the employee did not have sufficient knowledge of the nature of his injury and disability to provide the employer with notice of a ruptured disc until four or five months after the accident, when he was first informed by a physician that he had such an injury. CNA Ins. Co. v. Transou, 614 S.W.2d 335, 1981 Tenn. LEXIS 420 (Tenn. 1981).

Employee's failure to give notice was reasonable, and excused, where: (1) The employee's symptoms did not indicate the severity of the injury; (2) The only apparent injuries were superficial bruises; (3) There was a gradual progression of symptoms over months; (4) The employee had a limited understanding of rights and duties under worker's compensation laws; and (5) A year passed before a physician discussed with employee how his injury may have occurred. Livingston v. Shelby Williams Industries, Inc., 811 S.W.2d 511, 1991 Tenn. LEXIS 138 (Tenn. 1991).

13. Employee's Ignorance of Law.

Employee's ignorance of this provision is not a valid excuse for failure to give notice. Brookside Mills v. Harrison, 158 Tenn. 86, 11 S.W.2d 679, 1928 Tenn. LEXIS 126 (1928).

14. Effect of Lack of Notice on Conditions Resulting from Injury.

Where there was no liability for the original injury resulting in hernia because of failure to give proper notice, there could be no liability for condition allegedly resulting from operation to correct hernia. McCarty v. Musgrave Pencil Co., 199 Tenn. 582, 288 S.W.2d 444, 1956 Tenn. LEXIS 356 (1956).

15. Waiver of Notice.

Where an employee, who sustained an injury, in less than two weeks orally reported it to the employer's foreman, who made out a report, after which the employee was sent to the employer's physician and was treated by him for the injury, and three months later the employer made a settlement with the employee, taking a receipt acquitting it in full of further liability, the employer waived the written notice required by this statute. Vester Gas Range & Mfg. Co. v. Leonard, 148 Tenn. 665, 257 S.W. 395, 1923 Tenn. LEXIS 53 (1923).

Written notice of injury was waived by employer where foreman sent employee to superintendent when he reported injury 29 days after accident and superintendent made written report and ordered treatment by company physician which was supplied, after which employee was given light work, leading him to believe the company recognized its liability. Crane Enamelware Co. v. Dotson, 152 Tenn. 401, 277 S.W. 902, 1925 Tenn. LEXIS 83 (1925).

Employer denying liability on the sole ground that the claimant was an independent contractor waives notice. Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

Unequivocal denial of liability waives notice. Borden Mills, Inc. v. McGaha, 161 Tenn. 376, 32 S.W.2d 1039, 1930 Tenn. LEXIS 15 (1930).

Waiver of lack of notice is not fully made out by proof merely of knowledge of the employer or of lack of prejudice, or by proof of a concurrence of these two without more. Marshall Const. Co. v. Russell, 163 Tenn. 410, 43 S.W.2d 208, 1931 Tenn. LEXIS 130 (1931).

Knowledge of employer and lack of prejudice are elements to be considered by the supreme court in affecting justice of application of doctrine of waiver. Marshall Const. Co. v. Russell, 163 Tenn. 410, 43 S.W.2d 208, 1931 Tenn. LEXIS 130 (1931).

An employer may waive written notice of injury, and the giving of written notice to the employer is waived if the employer has actual notice of the injury and is not prejudiced by the absence of written notice. Hotel Claridge Co. v. Blank, 169 Tenn. 575, 89 S.W.2d 758, 1935 Tenn. LEXIS 85 (1936).

Employer did not waive notice requirement by virtue of paying medical, hospital and funeral expenses of employee who continued to work after accident without notifying employer of injury. Moore v. Nashville Union Stock Yards, Inc., 169 Tenn. 638, 90 S.W.2d 524, 1935 Tenn. LEXIS 91 (1936).

Payment of compensation by employer after lapse of 30 days' notice period did not constitute waiver of notice requirement. York v. Federal Chemical Co., 188 Tenn. 63, 216 S.W.2d 725, 1949 Tenn. LEXIS 316 (1949).

The requirement that claimant must give written notice of accident and injury within 30 days may be waived by conduct of employer or his representatives in recognition of the liability, or excused on grounds of inability or faultless omission of the employee. Gluck Bros., Inc. v. Breeden, 215 Tenn. 587, 387 S.W.2d 825, 1965 Tenn. LEXIS 636 (1965).

16. —Insurer's Waiver.

Employer's insurer waived or estopped itself to rely on the one year statute or on the employee's failure to give his employer notice of accident within 30 days by its promise to employer to waive any question of failure to give notice and all technical questions in suit to determine whether injury was compensable, made to prevent cancellation of policy. Hartford Acci. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904, 1928 Tenn. LEXIS 76 (1929).

17. Notice Sufficient.

Injured employee gave adequate notice that he suffered an injury arising out of and in the course of his employment. Jones v. Helena Truck Lines, Inc., 833 S.W.2d 62, 1992 Tenn. LEXIS 425 (Tenn. 1992); Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 1993 Tenn. LEXIS 185, 26 A.L.R.5th 820, 5 A.L.R. 2208 (Tenn. 1993).

Trial court correctly determined that an employee's knee injury was not barred because the employee gave oral notice her fall shortly after it occurred, and the employee received medical treatment through its workers' compensation program for that fall. Ball v. Regions Fin. Corp., — S.W.3d —, 2014 Tenn. LEXIS 705 (Tenn. Oct. 2, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 701 (Tenn. Oct. 2, 2014).

18. Practice and Procedure.

19. —Pleadings.

Where petition of injured employee affirmatively showed that notice of the injury was not given the employer within 30 days after the accident but further averred that written notice was given within 30 days after the discovery of the injury caused by the accident, such petition alleged a reasonable excuse for failure to give notice within 30 days after the accident, and defendant's demurrer to the petition on grounds of failure to give notice within such 30-day period was improperly sustained. McBrayer v. Dixie Mercerizing Co., 176 Tenn. 560, 144 S.W.2d 764, 1940 Tenn. LEXIS 101 (1940).

The law does not require that the petition affirmatively allege that statutory notice was given or a reason for not giving it, as this is a matter of defense. Greener v. E. I. Du Pont De Nemours & Co., 188 Tenn. 303, 219 S.W.2d 185, 1949 Tenn. LEXIS 342 (1949).

20. —Burden of Proof.

Where failure to give notice of injury is pleaded, burden is on employee to prove that it was given. R. W. Hartwell Motor Co. v. Hickerson, 160 Tenn. 513, 26 S.W.2d 153, 1929 Tenn. LEXIS 127 (1930); Aluminum Co. of America v. Rogers, 211 Tenn. 187, 364 S.W.2d 358, 1962 Tenn. LEXIS 355 (1962); International Playing Card & Label Co. v. Broyles, 214 Tenn. 530, 381 S.W.2d 888, 1964 Tenn. LEXIS 503 (1964).

It is not required that a petition or complaint seeking workers' compensation benefits must affirmatively allege that the statutory notice was given, nor that a reason for not giving it be stated, because failure to give the required notice is a matter of defense; but when failure to give notice is pleaded, the burden is on the claimant to prove it was given, or why it was not. Aetna Casualty & Surety Co. v. Long, 569 S.W.2d 444, 1978 Tenn. LEXIS 622 (Tenn. 1978).

21. —Proof of Notice.

Evidence to effect that copy of notice on blank furnished by employer was found among deceased employee's papers and evidence of correspondence between deceased and state authorities tending to show delivery of original notice to employer and that employer had made statements indicating that he had received notice, and that the latter visited the injured employee while he was in the hospital, will sustain a finding of the giving of notice, especially where the employer produced no rebuttal testimony. Roehl v. Graw, 161 Tenn. 461, 32 S.W.2d 1049, 1930 Tenn. LEXIS 30 (1930).

Circumstantial evidence of giving of notice shifts burden to employer to rebut such evidence. Roehl v. Graw, 161 Tenn. 461, 32 S.W.2d 1049, 1930 Tenn. LEXIS 30 (1930).

An employee who relies upon alleged actual knowledge of the employer must prove that the employer had actual knowledge of the time, place, nature and cause of the injury. Masters v. Industrial Garments Mfg. Co., 595 S.W.2d 811, 1980 Tenn. LEXIS 422 (Tenn. 1980).

Where employee told employer's nurse that he was injured and that his injury occurred when he fell getting out of a company truck, his statements to the nurse reasonably conveyed to the employer that he was claiming an injury arising out of and in the course of his employment. Tenpenny v. Batesville Casket Co., 781 S.W.2d 841, 1989 Tenn. LEXIS 527 (Tenn. 1989).

Doctor's letter requesting accommodation due to medical condition of employee does not constitute notice of work-related injury. Jones v. Sterling Last Corp., 962 S.W.2d 469, 1998 Tenn. LEXIS 52 (Tenn. 1998).

In a workers'  compensation case, the employee alleged she sustained injuries to her ankle and knee while lifting a patient. Because the employee testified she told her supervisor that day and saw an authorized physician less than a week after her injury, the trial court correctly ruled the employer was aware of the incident within the 30 days provided by T.C.A. § 50-6-201. Collier v. Life Care Ctrs. of Collegedale, — S.W.3d —, 2012 Tenn. LEXIS 736 (Tenn. Oct. 8, 2012), aff'd, — S.W.3d —, 2012 Tenn. LEXIS 737 (Tenn. Oct. 8, 2012).

22. —Proof of Timely Filing.

Where employer's witnesses testified to employee's late filing of a claim, employee's inference that employer would not have accepted the claim had it not been timely filed presented the appellate court with insufficient grounds for reversal of the trial court verdict for employer. Davis v. Gulf Ins. Group, 546 S.W.2d 583, 1977 Tenn. LEXIS 519 (Tenn. 1977).

23. —Meeting Defense of Want of Notice.

The defense of want of notice may be met: (1) By showing waiver based on conduct of employer in recognition of his liability; or (2) by excuse based on inability or faultless omission of employee. Marshall Const. Co. v. Russell, 163 Tenn. 410, 43 S.W.2d 208, 1931 Tenn. LEXIS 130 (1931).

24. —Findings of Trial Judge.

The language of the statute makes the question of the reasonableness of the excuse one peculiarly for the trial judge. Marshall Const. Co. v. Russell, 163 Tenn. 410, 43 S.W.2d 208, 1931 Tenn. LEXIS 130 (1931).

Trier of fact is the final judge as to the credibility of witnesses and may determine whether notice was given. London & Lancashire Indem. Co. v. Starcher, 202 Tenn. 278, 304 S.W.2d 87, 1957 Tenn. LEXIS 389 (1957).

25. —Question of Notice on Appeal.

Where in the record there was no minute entry of the court which showed that an amendment to an answer set up as a defense that employee failed to give the notice required was ordered made, but the recital in the final judgment showed that the amended answer was considered by the court in determining the case, a motion to strike the amended answer from the record must be overruled, and the defense treated as properly presented by the record. Patten Hotel Co. v. Milner, 145 Tenn. 632, 238 S.W. 75, 1921 Tenn. LEXIS 101 (1921).

A failure of defendants' answer to raise the question of the employee's failure to give written notice of injury to defendants, and their objection to evidence of such notice, insisting on its immateriality, estops them from urging the point on appeal. Williams v. Buchanan, 149 Tenn. 639, 261 S.W. 660, 1923 Tenn. LEXIS 120 (1924).

Determination of trial court, within its discretion, that employer waived notice will not be disturbed where employer and agent of liability insurer had actual notice of all the facts and it is not claimed that failure to give written notice was prejudicial to employer. Kingsport Silk Mills v. Cox, 161 Tenn. 470, 33 S.W.2d 90, 1930 Tenn. LEXIS 31 (1930).

Finding of trial judge of reasonable excuse for failure to give notice will be upheld on appeal upon consideration of presumption of trial judge's proper use of his discretion, lack of prejudice to employer, fair inference of actual knowledge of employer within 30 days, ignorance of deceased of seriousness of injury, sudden development of serious condition excusing immediate action, and immediate opportunity of employer to examine injury and investigate facts. Marshall Const. Co. v. Russell, 163 Tenn. 410, 43 S.W.2d 208, 1931 Tenn. LEXIS 130 (1931).

Collateral References.

Action by employees for injury as claim or notice of claim. 98 A.L.R. 529.

Application for, or receipt of, unemployment compensation benefits as affecting claim for workmen's compensation. 96 A.L.R.2d 941.

Requirement of Workmen's Compensation Act as to notice of accident or injury. 78 A.L.R. 1232, 92 A.L.R. 505, 107 A.L.R. 816, 145 A.L.R. 1263.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden emotional stimuli involving personnel action. 82 A.L.R.5th 149.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden stimuli involving nonpersonnel action. 83 A.L.R.5th 103, 84 A.L.R.5th 249.

Tort liability of worker's compensation insurer for wrongful delay or refusal to make payments due. 8 A.L.R.4th 902.

50-6-202. Electronic submission and processing of medical bills.

  1. On or after July 1, 2014, the administrator, in cooperation with the commissioner of commerce and insurance, shall adopt rules regarding the electronic submission and processing of medical bills by health care providers to insurance carriers.
  2. Insurance carriers shall accept medical bills submitted electronically by health care providers in accordance with the administrator's rules.
  3. The administrator shall establish by rule the criteria for granting exceptions to insurance carriers and health care providers who are unable to submit or accept medical bills electronically.

Acts 1919, ch. 123, § 23; Shan. Supp., § 3608a172; Code 1932, § 6873; T.C.A. (orig. ed.), § 50-1002; Acts 2013, ch. 289, § 30.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, rewrote this section which read: “(a)(1) The notice required to be given of the occurrence of an accident to the employer shall state in plain and simple language the name and address of the employee, the time, place, and nature and cause of the accident resulting in injury or death, and shall be signed by the claimant or by some person on the claimant’s behalf, or by any one (1) or more of the claimant’s dependents if the accident resulted in death to the employee.“(2) No defect or inaccuracy in the notice shall be a bar to compensation, unless the employer can show to the satisfaction of the tribunal in which the matter is pending that the employer was prejudiced by the failure to give the proper notice, and then only to the extent of the prejudice.“(b) The notice shall be given personally to the employer or to the employer’s agent or agents having charge of the business in working at which the injury was sustained by the employee.”

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

50-6-202. Contents and service of notice. [Applicable to injuries occurring prior to July 1, 2014.]

    1. The notice required to be given of the occurrence of an accident to the employer shall state in plain and simple language the name and address of the employee, the time, place, and nature and cause of the accident resulting in injury or death, and shall be signed by the claimant or by some person on the claimant's behalf, or by any one (1) or more of the claimant's dependents if the accident resulted in death to the employee.
    2. No defect or inaccuracy in the notice shall be a bar to compensation, unless the employer can show to the satisfaction of the tribunal in which the matter is pending that the employer was prejudiced by the failure to give the proper notice, and then only to the extent of the prejudice.
  1. The notice shall be given personally to the employer or to the employer's agent or agents having charge of the business in working at which the injury was sustained by the employee.

Acts 1919, ch. 123, § 23; Shan. Supp., § 3608a172; Code 1932, § 6873; T.C.A. (orig. ed.), § 50-1002.

NOTES TO DECISIONS

1. Presumption of Delivery of Letter.

Letter giving notice properly directed, sealed and posted in postal box, is presumed to have been delivered. Wm. H. Coleman Co. v. Isbell, 159 Tenn. 459, 19 S.W.2d 243, 1928 Tenn. LEXIS 107 (1929).

2. Employer With Knowledge of Facts.

Failure of claimant or agent to give technical statutory notice that injury arose out of employment will not defeat recovery of workers' compensation if employer has actual knowledge of facts which would have reasonably suggested conclusion, since statutory purpose will be upheld without prejudice to employer. Powers v. Beasley, 197 Tenn. 549, 276 S.W.2d 720, 1955 Tenn. LEXIS 315 (1955).

There is no requirement that an employee give notice of each of several injuries he received in an on-the-job accident. He is in compliance with the statutory requirement of notice if he notifies his employer of the accident and the fact that he has suffered an injury. The nature and extent of the employee's injuries, and the issue of medical causation, usually come to light in the course of treatment of the employee's injuries. Quaker Oats Co. v. Smith, 574 S.W.2d 45, 1978 Tenn. LEXIS 675 (Tenn. 1978).

Where the employer already had knowledge of an accident, the filing of a complaint alleging that injury had resulted, within the 30-day period for the giving of notice, constituted written notice under T.C.A. §§ 50-6-201 and 50-6-202. Moon v. Auto-Owners Ins. Co., 736 S.W.2d 92, 1987 Tenn. LEXIS 968 (Tenn. 1987).

Where employee's leave of absence report, which described the employee's injury, was signed by her supervisor and department director within 30 days of the incident, the employer had actual knowledge of the place, nature and cause of the injury, and the employee's oral misidentification of the time of the injury was not such a defect as to require a finding of lack of notice. Clarendon v. Baptist Memorial Hosp., 796 S.W.2d 685, 1990 Tenn. LEXIS 322 (Tenn. 1990).

50-6-203. Limitation of time, claims and actions.

  1. No request for a hearing by a workers' compensation judge under this chapter shall be filed with the court of workers' compensation claims, other than a request for settlement approval, until a workers' compensation mediator has issued a dispute certification notice certifying issues in dispute for hearing before a workers' compensation judge.
    1. In instances when the employer has not paid workers' compensation benefits to or on behalf of the employee, the right to compensation under this chapter shall be forever barred, unless the notice required by § 50-6-201 is given to the employer and a petition for benefit determination is filed with the bureau on a form prescribed by the administrator within one (1) year after the accident resulting in injury.
    2. In instances when the employer has voluntarily paid workers' compensation benefits, within one (1) year following the accident resulting in injury, the right to compensation is forever barred, unless a petition for benefit determination is filed with the bureau on a form prescribed by the administrator within one (1) year from the latter of the date of the last authorized treatment or the time the employer ceased to make payments of compensation to or on behalf of the employee.
  2. For purposes of this section, the issuing date of the last payment of compensation by the employer, not the date of its receipt, shall constitute the time the employer ceased making payments and an employer or its insurer shall provide the date on request.
  3. In case of physical or mental incapacity, other than minority, of the injured person or the injured person's dependents to perform or cause to be performed any action required within the time specified in this section, then the period of limitation in the case shall be extended for one (1) year from the date when the incapacity ceases.
    1. Unless a claim for death benefits is settled or voluntarily paid, the dependent or dependents of a deceased employee shall file a petition for benefit determination on a form prescribed by the administrator within one (1) year after the date of the employee's death.
    2. In the event the deceased employee was a native of a foreign country and leaves no known dependent or dependents within the United States, it shall be the duty of the administrator to give written notice forthwith of the death to the duly accredited consular officer of the country of which the beneficiaries are citizens.
  4. If the employee fails to appear and participate in alternative dispute resolution as scheduled by the bureau, a workers' compensation judge shall have the authority to dismiss the employee's claim by sending a copy of the order of dismissal by certified mail with return receipt requested to the employee's last known address. The order of dismissal for failure to participate in alternative dispute resolution shall become final and the claim shall be forever barred, unless the employee contacts the bureau to schedule mediation and attends mediation within sixty (60) days after the date on which the workers' compensation judge enters the order of dismissal. If the employee complies with the requirements of this subsection (f) within the timeframe provided, the workers' compensation judge shall rescind the order dismissing the employee's claim for failure to participate in alternative dispute resolution.
  5. [Deleted by 2013 amendment, effective July 1, 2014.]
  6. [Deleted by 2013 amendment, effective July 1, 2014.]
  7. Proceedings to obtain a judgment in the case of the failure of the employer for thirty (30) days to pay any compensation due under any settlement or determination shall be filed within one (1) year after the default.
  8. In any case where an employer has paid permanent partial disability benefits to an employee in an attempt to settle a claim for workers' compensation benefits but the employee and employer have not entered into a settlement agreement that has been approved by a workers' compensation judge, the statute of limitations for filing a claim to recover workers' compensation benefits pursuant to this chapter shall be extended for two (2) years from the date the last payment of permanent partial disability benefits was made to the employee.

Acts 1919, ch. 123, § 24; Shan. Supp., § 3608a173; Code 1932, § 6874; Acts 1947, ch. 139, § 4; C. Supp. 1950, § 6874; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1003; Acts 1996, ch. 944, § 13; 1998, ch. 1024, §§ 1, 2; 1999, ch. 520, § 41; 2004, ch. 962, § 14; 2005, ch. 390, §§ 5, 6; 2008, ch. 1183, § 10; 2013, ch. 282, § 1; 2013, ch. 289, §§  31-34; 2015, ch. 341, §§ 4, 15.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2004, ch. 962, § 51 provided, in part, that § 14 shall apply to accidents or injuries occurring on or after January 1, 2005.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Acts 2015, ch. 341, § 19 provided that section 4 of the act, which added subsection (j), shall apply to injuries occurring on or after May 4, 2015.

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, substituted “administrator” for “commissioner” in (e)(2).

The 2013 amendment by ch. 289, effective July 1, 2014, rewrote (a) and (b) which read: “(a)(1) No claim for compensation under this chapter shall be filed with a court having jurisdiction to hear workers' compensation matters, as provided in § 50-6-225, until the parties have exhausted the benefit review conference process provided by the division of workers' compensation.“(2) Notwithstanding this section, if the parties have mutually agreed to a compromise and settlement of a claim for workers’ compensation, the parties shall not be required to exhaust the benefit review conference process before filing a claim and submitting the compromise and settlement to the appropriate court for approval pursuant to § 50-6-206(a) or to the commissioner or the commissioner’s designee pursuant to § 50-6-206(c). If the settlement is not approved, the parties shall then exhaust the benefit review conference process.“(b)(1) In those instances where the employer has not paid workers' compensation benefits to or on behalf of the employee, the right to compensation under this chapter shall be forever barred, unless the notice required by § 50-6-202 is given to the employer and a benefit review conference is requested on a form prescribed by the commissioner and filed with the division within one (1) year after the accident resulting in injury.“(2) In those instances where the employer has paid workers’ compensation benefits, either voluntarily or as a result of an order to do so, within one (1) year following the accident resulting in injury, the right to compensation is forever barred, unless a form prescribed by the commissioner requesting a benefit review conference is filed with the division within one (1) year from the latter of the date of the last authorized treatment or the time the employer ceased to make payments of compensation to or on behalf of the employee.”; substituted “file a petition for benefit determination on a form prescribed by the administrator within one (1) year after the date of the employee’s death” for “request a benefit review conference within one (1) year of death of the employee” in (e)(1); rewrote (f) which read: “(f) If the employee fails to appear and participate in alternative dispute resolution as scheduled by the division, a workers' compensation judge shall have the authority to dismiss the employee’s claim by sending a copy of the order of dismissal by certified mail with return receipt requested to the employee’s last known address. The order of dismissal for failure to participate in alternative dispute resolution shall become final and the claim shall be forever barred, unless the employee contacts the division to schedule mediation and attends mediation within sixty (60) days after the date on which the workers’ compensation judge enters the order of dismissal. If the employee complies with the requirements of this subsection within the timeframe provided, the workers’ compensation judge shall rescind the order dismissing the employee's claim for failure to participate in alternative dispute resolution.”; and deleted (g) and (h) which read: “(g)(1) If the parties are not able to reach a compromise and settlement of all issues at the benefit review conference held pursuant to this section, the parties shall have ninety (90) days, after the date a written agreement or a written report regarding the conference is filed with the commissioner pursuant to § 50-6-240, to file a complaint with a court of competent jurisdiction as provided in § 50-6-225. The division of workers’ compensation shall maintain an official record of the date on which a written agreement or written report is filed with the commissioner and supply the information to the parties or the appropriate court upon request of either the parties or the court.“(2) Notwithstanding subdivision (g)(1), in no event shall an employee have less than the latter of:“(A) One (1) year from the date of the accident resulting in injury; or“(B) One (1) year from the latter of the date of the last authorized treatment or the time the employer ceased to make payments of compensation to or on behalf of the employee in which to file a complaint with a court of competent jurisdiction, as provided in § 50-6-225.“(h) In the event a workers’ compensation’s complaint is filed with a court of competent jurisdiction pursuant to this section by the employer or the employer’s agent and the employer or agent files notice of non-suit of the action, either party shall have ninety (90) days from the date of the order of dismissal to institute an action for recovery of benefits under this chapter.”

The 2015 amendment substituted “bureau” for “division” throughout and added (j).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

Workers' Compensation Appeals Board Decisions. The trial court erred in denying an employer's motion for partial summary judgment. Following a physical assault upon an employee in the workplace, the employer voluntarily provided medical care to the employee for shoulder and back injuries. More than one year after the date the employer made its last payment for medical treatment for the injuries, the employee filed a petition requesting medical care for a mental injury she alleged arose out of the same workplace assault. Regardless of when the employee became aware that particular injuries diagnosed subsequent to an assault were causally related to the assault, she knew she had an injury from the time of the assault. Moreover, she believed she was suffering from mental conditions due to the incident and requested care for such conditions soon after the assault. Her psychologist diagnosed her with posttraumatic stress disorder the same month in which the assault occurred. Therefore, the employee's statute of limitations was not tolled as to her alleged mental injury and her November 20, 2017 petition was untimely. Linsey v. Acadia Healthcare Company, 2019 TN Wrk Comp App Bd LEXIS 17.

NOTES TO DECISIONS

1. Claim Barred.

The plaintiff's claim was barred by the one-year statute of limitations contained in T.C.A. § 50-6-203. Ogden v. Matrix Vision of Williamson County, Inc., 838 S.W.2d 528, 1992 Tenn. LEXIS 569 (Tenn. 1992).

The statute of limitations, T.C.A. § 50-6-203, ran one year after employer ceased making payments; the employer's single payment almost two years after the expiration of the statute of limitations did not revive the employee's claim as there was a greater than one-year gap between voluntary medical payments, and the employee's second complaint, filed two years after the statute of limitations ran, was time-barred. Dye v. Witco Corp., 216 S.W.3d 317, 2007 Tenn. LEXIS 226 (Tenn. 2007).

Trial court properly determined that appellant's workers'  compensation claim was barred by the one-year statute of limitations found in T.C.A. § 50-6-203. The benefit review report did not give the claimant the option of refraining from filing suit to avoid commencement of the limitation period. Abdalla v. Tyson Fresh Meats, Inc., — S.W.3d —, 2015 Tenn. LEXIS 190 (Tenn. Mar. 17, 2015), aff'd, — S.W.3d —, 2015 Tenn. LEXIS 191 (Tenn. Mar. 17, 2015).

Employee's workers'  compensation claim was barred because the employee failed to give notice to the employer within one year and the statute of limitations was not tolled because the employee knew she had an injury the first time she visited a counselor more than three years before filing the instant action. Lyles v. Titlemax of Tenn., Inc., — S.W.3d —, 2018 Tenn. LEXIS 520 (Tenn. Sept. 14, 2018).

2. Time from Which Statute Runs.

Trial court erred in granting an employer's motion for summary judgment and dismissing an employee's case because genuine issues of material fact existed on questions involving the commencement of the statute of limitations; genuine issues of material fact existed concerning whether the employee's condition was a gradually occurring injury and/or an occupational disease, and genuine issues of material fact existed concerning the employee's incapacity for work and reason for leaving the employer. Williams v. SWS LLC, — S.W.3d —, 2019 Tenn. LEXIS 448 (Tenn. Sept. 20, 2019).

Trial court erred in granting an employer's motion for summary judgment and dismissing an employee's case because genuine issues of material fact existed on questions involving the commencement of the statute of limitations; the trial court applied the discovery rule, but the discovery rule had no application where an employee was well aware of her claim. Williams v. SWS LLC, — S.W.3d —, 2019 Tenn. LEXIS 448 (Tenn. Sept. 20, 2019).

50-6-203. Limitation of time, claims and actions. [Applicable to injuries occurring prior to July 1, 2014.]

    1. No claim for compensation under this chapter shall be filed with a court having jurisdiction to hear workers' compensation matters, as provided in § 50-6-225, until the parties have exhausted the benefit review conference process provided by the division of workers' compensation.
    2. Notwithstanding this section, if the parties have mutually agreed to a compromise and settlement of a claim for workers' compensation, the parties shall not be required to exhaust the benefit review conference process before filing a claim and submitting the compromise and settlement to the appropriate court for approval pursuant to § 50-6-206(a) or to the commissioner or the commissioner's designee pursuant to § 50-6-206(c). If the settlement is not approved, the parties shall then exhaust the benefit review conference process.
    1. In those instances where the employer has not paid workers' compensation benefits to or on behalf of the employee, the right to compensation under this chapter shall be forever barred, unless the notice required by § 50-6-202 is given to the employer and a benefit review conference is requested on a form prescribed by the commissioner and filed with the division within one (1) year after the accident resulting in injury.
    2. In those instances where the employer has paid workers' compensation benefits, either voluntarily or as a result of an order to do so, within one (1) year following the accident resulting in injury, the right to compensation is forever barred, unless a form prescribed by the commissioner requesting a benefit review conference is filed with the division within one (1) year from the latter of the date of the last authorized treatment or the time the employer ceased to make payments of compensation to or on behalf of the employee.
  1. For purposes of this section, the issuing date of the last payment of compensation by the employer, not the date of its receipt, shall constitute the time the employer ceased making payments and an employer or its insurer shall provide the date on request.
  2. In case of physical or mental incapacity, other than minority, of the injured person or the injured person's dependents to perform or cause to be performed any action required within the time specified in this section, then the period of limitation in the case shall be extended for one (1) year from the date when the incapacity ceases.
    1. Unless a claim for death benefits is settled or voluntarily paid, the dependent or dependents of a deceased employee shall request a benefit review conference within one (1) year of the date of death of the employee.
    2. In the event the deceased employee was a native of a foreign country and leaves no known dependent or dependents within the United States, it shall be the duty of the commissioner to give written notice forthwith of the death to the duly accredited consular officer of the country of which the beneficiaries are citizens.
  3. In the event the employee fails to appear and participate in the benefit review conference as scheduled by the division, the commissioner shall have the authority to dismiss the employee's claim by sending a copy of the order of dismissal by certified mail with return receipt requested to the employee's last known address. The order of dismissal shall become final and the claim shall be forever barred, unless the employee contacts the department to schedule a benefit review conference and attends a benefit review conference within sixty (60) days of the date the order of dismissal is signed by the commissioner or the commissioner's designee.
    1. If the parties are not able to reach a compromise and settlement of all issues at the benefit review conference held pursuant to this section, the parties shall have ninety (90) days, after the date a written agreement or a written report regarding the conference is filed with the commissioner pursuant to § 50-6-240, to file a complaint with a court of competent jurisdiction as provided in § 50-6-225. The division of workers' compensation shall maintain an official record of the date on which a written agreement or written report is filed with the commissioner and supply the information to the parties or the appropriate court upon request of either the parties or the court.
    2. Notwithstanding subdivision (g)(1), in no event shall an employee have less than the latter of:
      1. One (1) year from the date of the accident resulting in injury; or
      2. One (1) year from the latter of the date of the last authorized treatment or the time the employer ceased to make payments of compensation to or on behalf of the employee in which to file a complaint with a court of competent jurisdiction, as provided in § 50-6-225.
  4. In the event a workers' compensation's complaint is filed with a court of competent jurisdiction pursuant to this section by the employer or the employer's agent and the employer or agent files notice of non-suit of the action, either party shall have ninety (90) days from the date of the order of dismissal to institute an action for recovery of benefits under this chapter.
  5. Proceedings to obtain a judgment in the case of the failure of the employer for thirty (30) days to pay any compensation due under any settlement or determination shall be filed within one (1) year after the default.

Acts 1919, ch. 123, § 24; Shan. Supp., § 3608a173; Code 1932, § 6874; Acts 1947, ch. 139, § 4; C. Supp. 1950, § 6874; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1003; Acts 1996, ch. 944, § 13; 1998, ch. 1024, §§ 1, 2; 1999, ch. 520, § 41; 2004, ch. 962, § 14; 2005, ch. 390, §§ 5, 6; 2008, ch. 1183, § 10.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2004, ch. 962, § 51 provided, in part, that § 14 shall apply to accidents or injuries occurring on or after January 1, 2005.

The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

Cross-References. Limitation of actions, § 50-6-224.

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 48.

Law Reviews.

Workers' Compensation Outline (Paul Campbell III), 18 No. 3 Tenn. B.J. 11 (1982).

NOTES TO DECISIONS

1. Validity.

The limitation which fixes the arbitrary and unchanging limit of one year from the date of the specified notice is valid. The fact that the date of the event is uncertain does not render the limitation void. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

2. Application.

Limitation period in this section does not apply to suit for additional compensation based on increased disability. Phillips v. Memphis Furniture Mfg. Co., 168 Tenn. 481, 79 S.W.2d 576, 1934 Tenn. LEXIS 80 (1935).

Since § 50-6-102 expressly includes a minor within the definition of an employee and § 50-6-224(4) (now § 50-6-224(a)(4)) expressly excludes minors from those entitled to extension of the statute of limitations for reasons of physical or mental incapacity to assert their rights, a minor is subject to the one year statute of limitations with reference to making his claim under the Workers' Compensation Law. Franse v. Knox Porcelain Corp., 171 Tenn. 49, 100 S.W.2d 647, 1936 Tenn. LEXIS 59 (1937).

By placing the second injury fund into the workers' compensation act and remaining silent as to the time in which a claim against the fund is to be filed, while at the same time expressing the intent that the claim against the fund is to be tried with the employee's claim against his employer, the general assembly intended the time limitation on filing a workers' compensation claim against the employer to be equally applicable to a claim against the second injury fund. Travelers Ins. Co. v. Austin, 521 S.W.2d 783, 1975 Tenn. LEXIS 695 (Tenn. 1975).

The federal government is not an employer subject to the Workers' Compensation Act, T.C.A. § 50-6-101 et seq. and the fact that it was an employer of a national guardsman was not relevant in applying the tolling provision of T.C.A. § 50-6-203. Dial v. State, 796 S.W.2d 143, 1990 Tenn. LEXIS 321 (Tenn. 1990).

Injury such as employee's carpal tunnel syndrome was gradually occurring, and last day worked rule was used to help establish the date on which the injury occurred; employee's last day of work in which she was experiencing a new injury each day was at subsequent employer. Crew v. First Source Furniture Group, 259 S.W.3d 656, 2008 Tenn. LEXIS 418 (Tenn. June 24, 2008).

3. Nature and Effect.

Limitation of time in which action under this statute must be brought indicates that general assembly could not have intended accidental injuries to include diseases developing by gradual process. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931). But see, part 3 of this chapter.

This section affects the remedy and is not proscriptive. Rye v. Dupont Rayon Co., 163 Tenn. 95, 40 S.W.2d 1041, 1931 Tenn. LEXIS 92 (1931).

Where an employee establishes the elements under T.C.A. § 50-6-203, an employer may not simply rely on the fortuitous timing of an employee's retirement to avoid the responsibility for providing compensation. Mackie v. Young Sales Corp., 51 S.W.3d 554, 2001 Tenn. LEXIS 759 (Tenn. 2001).

Workers'  compensation claimants failed to establish that the benefit review conference in T.C.A. § 50-6-203(a), T.C.A. § 50-6-225(a)(1), and T.C.A. § 50-6-239(b) was unconstitutional; because injured workers are free to file suit and have rights judicially determined upon exhausting the review process, they are not deprived of right to be heard by judge. Lynch v. City of Jellico, 205 S.W.3d 384, 2006 Tenn. LEXIS 759 (Tenn. 2006), cert. denied, 549 U.S. 1280, 127 S. Ct. 1830, 167 L. Ed. 2d 320, 2007 U.S. LEXIS 3049 (2007).

4. Effect of Other Limitations.

Section 28-3-109, providing six year limitation for suits on contracts not otherwise covered, was inapplicable to a proceeding for further compensation under Workers' Compensation Law in view of the limitations provided by the compensation statute. Phillips v. Memphis Furniture Mfg. Co., 168 Tenn. 481, 79 S.W.2d 576, 1934 Tenn. LEXIS 80 (1935).

5. Relation to § 50-6-224.

In this section, a general period of limitation was expressed, apparently applicable to all actions for compensation, whereas in § 50-6-224 a more detailed and specific treatment of limitation of actions was made. Therefore the latter provisions limit and control the former. Southern R. Co. v. Grigsby, 155 Tenn. 285, 292 S.W. 3, 1926 Tenn. LEXIS 46 (1927); Ogle v. Tennessee Eastman Corp., 185 Tenn. 527, 206 S.W.2d 909, 1947 Tenn. LEXIS 366 (1947); Trobaugh v. Harper, 191 Tenn. 409, 234 S.W.2d 829, 1950 Tenn. LEXIS 451 (1950).

Since this section must be construed with and in subordination to provisions of § 50-6-224, dependents of an employee killed in service are not barred until the employer files the notice stipulated in § 50-6-224(2) (now § 50-6-224(a)(2)). Southern R. Co. v. Grigsby, 155 Tenn. 285, 292 S.W. 3, 1926 Tenn. LEXIS 46 (1927); Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

There is no repugnancy between this section and § 50-6-224, and both may be enforced. Minor v. E. I. Du Pont De Nemours & Co., 164 Tenn. 226, 47 S.W.2d 748, 1931 Tenn. LEXIS 26 (1932).

Section 50-6-224(4) (now § 50-6-224(a)(4)) is an exception to this section. McBrayer v. Dixie Mercerizing Co., 176 Tenn. 560, 144 S.W.2d 764, 1940 Tenn. LEXIS 101 (1940).

Where suit for compensation is brought more than one year after the alleged accident and injury it is prima facie barred by the statute of limitations, and it is incumbent upon petitioner to bring his case within an exception. Bradshaw v. Claridy, 213 Tenn. 297, 375 S.W.2d 852, 1964 Tenn. LEXIS 390 (1964).

The difference between this section and § 50-6-224 has no application to a case where the petitioner suffered immediate disability at the time of the accident so that the date of the accident and the date of the injury were one and the same. Bradshaw v. Claridy, 213 Tenn. 297, 375 S.W.2d 852, 1964 Tenn. LEXIS 390 (1964).

This section and § 50-6-224 should be construed together and must be liberally construed so that the limitation of one year begins to run from the time of commencement of loss rather than the time of the accident. Imperial Shirt Corp. v. Jenkins, 217 Tenn. 602, 399 S.W.2d 757, 1966 Tenn. LEXIS 615, 1966 Tenn. LEXIS 658 (1966).

The apparent conflict between this section, which provides in part that the statute of limitations begins to run from the date of the accident, and § 50-6-224, which provides that the statute of limitations begins to run from the date of the injury, was resolved by the ruling in Griffitts v. Humphrey, 199 Tenn. 528, 288 S.W.2d 1, 1955 Tenn. LEXIS 309 (1955), that the statute begins to run on the date the disability manifests itself, disability being used synonymously with injury, and from this ruling is derived the general principle that the running of the statute of limitations is suspended until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained. Reed v. Genesco, Inc., 512 S.W.2d 1, 1974 Tenn. LEXIS 474 (Tenn. 1974).

Limitations period for workers'  compensation cases pursuant to T.C.A. § 50-6-203(b)(1) does not commence until a plaintiff discovers or, in the exercise of reasonable diligence, should have discovered that he or she has a claim; the General Assembly's restriction of T.C.A. § 50-6-224(a)(1) to injuries that arise on or before December 31, 2004, clearly indicates its intent to commence the statute of limitations in workers'  compensation cases at the time of the accident resulting in injury in cases in which the injury arises on or after January 1, 2005, as provided in T.C.A. § 50-6-203(b)(1). Gerdau Ameristeel, Inc. v. Ratliff, 368 S.W.3d 503, 2012 Tenn. LEXIS 401 (Tenn. June 7, 2012).

6. Time from Which Statute Runs.

The petitioner's right to compensation for total loss of eye, resulting from accident which immediately and consciously impaired his vision was barred under this section and § 50-6-224 where petitioner did not apply for compensation within one year from the occurrence of the accident, for “injury” as used in § 50-6-224 is synonymous with “accident” as used in this section. Graham v. J. W. Wells Brick Co., 150 Tenn. 660, 266 S.W. 770, 1924 Tenn. LEXIS 35 (1924). See also Franse v. Knox Porcelain Corp., 171 Tenn. 49, 100 S.W.2d 647, 1936 Tenn. LEXIS 59 (1937). But see Ogle v. Tennessee Eastman Corp., 185 Tenn. 527, 206 S.W.2d 909, 1947 Tenn. LEXIS 366 (1947); Burcham v. Carbide & Carbon Chemicals Corp., 188 Tenn. 592, 221 S.W.2d 888, 1949 Tenn. LEXIS 379 (1949).

In compensation cases, the elements determinative of the inchoate right of the claimants are fixed as of the date of the injury and recovery is dependent upon pursuit of the remedy within the time and in the manner provided in this statute. Rye v. Dupont Rayon Co., 163 Tenn. 95, 40 S.W.2d 1041, 1931 Tenn. LEXIS 92 (1931).

Claimant whose eyes became irritated and inflamed as a result of gas and fumes from an explosion on July 1, 1945, and who was placed under treatment until February 10, 1947, when he was advised by company physician that he had lost the sight in one eye and who filed claim for compensation within 30 days thereafter was not barred from relief on the ground that period of limitations had expired, since limitation period did not start to run until February 10, 1947, when he was advised of his disability. Ogle v. Tennessee Eastman Corp., 185 Tenn. 527, 206 S.W.2d 909, 1947 Tenn. LEXIS 366 (1947).

The statute of limitations commences to run from the occurrence of the injury and not from the occurrence of the accident. Ogle v. Tennessee Eastman Corp., 185 Tenn. 527, 206 S.W.2d 909, 1947 Tenn. LEXIS 366 (1947); Burcham v. Carbide & Carbon Chemicals Corp., 188 Tenn. 592, 221 S.W.2d 888, 1949 Tenn. LEXIS 379 (1949).

If claimant is advised by employer's doctors that he has suffered no disability, the period of limitations is tolled and does not start to run until he discovers that he has sustained a disability as the result of an accident. Burcham v. Carbide & Carbon Chemicals Corp., 188 Tenn. 592, 221 S.W.2d 888, 1949 Tenn. LEXIS 379 (1949).

Where phlebitis resulted from accidental blow to stomach on June 15, 1949, which gradually grew worse, and petitioner fell when her leg collapsed under her on December 14, 1951, but suit for compensation was not filed until after second accident the claim could not be based on first injury as action would be barred by one year limitation period. Workman v. General Shoe Corp., 196 Tenn. 290, 265 S.W.2d 883, 1954 Tenn. LEXIS 377 (1954).

The statute of limitations commences to run not from the date of the accident but from the date of the known disability which results therefrom. Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 315 S.W.2d 245, 1958 Tenn. LEXIS 230 (1958).

Where evidence was to the effect that condition of employee grew progressively worse from time of injury until time suit for compensation was instituted three and one-half years thereafter, action of chancellor in sustaining plea of statute of limitations was proper and statute would not be suspended pending examination and final report by medical experts as to percentage of injured employee's disability. Pittman v. City Stores, Inc., 204 Tenn. 650, 325 S.W.2d 249, 1959 Tenn. LEXIS 323 (1959).

Where petitioner's back was injured in November, 1956, and he reported it to the employer, and doctor strapped him up and told him nature would take care of the cure, and he was aware from the time of the accident that he had a partial disability, suit filed in 1958 was too late. Travelers Ins. Co. v. Jackson, 206 Tenn. 272, 332 S.W.2d 674, 1960 Tenn. LEXIS 515 (1960).

Where disability to left eye resulted from two injuries occurring while employee was employed by different employers but injury did not become apparent until more than a year after first injury, action against first employer was not barred by the statute. J. E. Greene Co. v. Bennett, 207 Tenn. 635, 341 S.W.2d 751, 1960 Tenn. LEXIS 503 (1960), overruled in part, Indiana Lumberman's Mut. Ins. Co. v. Ray, 596 S.W.2d 816, 1980 Tenn. LEXIS 434 (Tenn. 1980).

Where plaintiff received neck injury while working in mine, but did not at that time know extent of neck injury, and approximately six months later began having weakness in his legs and arms, which he did not attribute to such injury until a year later when X-rays showed that such weakness was resulting from a broken neck, such action was not barred by this section since plaintiff could not be considered to have been permanently and totally disabled until the broken neck was discovered. Patterson v. Bessemer Coal, Iron & Land Co., 192 F. Supp. 805, 1961 U.S. Dist. LEXIS 4261 (E.D. Tenn. 1961).

Where at time of accident employee knew that he had suffered injury, statute of limitation commenced to run from date of accident and not date when his injuries caused him to be disabled to such extent that he was unable to carry on his regular employment. Wilson v. Vestal Lumber & Mfg. Co., 214 Tenn. 157, 378 S.W.2d 780, 1964 Tenn. LEXIS 459 (1964).

Where the employee, in a workers' compensation action, knew he had a disability from an accident well over a year preceding the filing of the bill his right to compensation is barred by the statute of limitation. Wilson v. Vestal Lumber & Mfg. Co., 214 Tenn. 157, 378 S.W.2d 780, 1964 Tenn. LEXIS 459 (1964).

The statute of limitations commences to run from the occurrence of the injury. Watkins v. Home Indem. Co., 219 Tenn. 276, 409 S.W.2d 359, 1966 Tenn. LEXIS 527 (1966).

Where nurse who hurt her back turning patients in bed on January 6, 1965, and consulted a physician on January 15, 1965, and in view of her training and experience should have been aware at that time that she had suffered a compensable injury, suit filed on February 21, 1966 would be barred. Watkins v. Home Indem. Co., 219 Tenn. 276, 409 S.W.2d 359, 1966 Tenn. LEXIS 527 (1966).

The time for filing a claim of a miner, who developed silicosis or pneumoconiosis over a period of years and who was advised by physicians from time to time that he had pneumoconiosis but could continue to work and became permanently disabled about two years after the first examination, began to run when he first had reason to believe that there was any particular seriousness about his condition rather than from the date of the accident. Lively v. Consolidation Coal Co., 273 F. Supp. 357, 1967 U.S. Dist. LEXIS 9192 (E.D. Tenn. 1967), aff'd, 406 F.2d 523, 1969 U.S. App. LEXIS 9053 (6th Cir. Tenn. 1969).

Voluntary furnishing of medical services in accordance with § 50-6-204 during year following notice to employer of injury tolled the running of the statute even though employer had not paid bills for such services. Fields v. Lowe Furniture Corp., 220 Tenn. 212, 415 S.W.2d 340, 1967 Tenn. LEXIS 399 (1967).

The limitation commences to run on the date the injury manifests itself and not exclusively on the date of the accident. Gluck Bros., Inc. v. Pollard, 221 Tenn. 383, 426 S.W.2d 763, 1968 Tenn. LEXIS 471 (1968).

Where plaintiff suffered ruptured disc two years previously but was never advised as to the nature of his injury and the doctor only advised heat treatments, and he worked until, after aggravation of the injury, he consulted another doctor who advised him of the nature of the injury, the limitation period began to run from the latter time. Ward v. Consolidation Coal Co., 406 F.2d 676, 1969 U.S. App. LEXIS 9054 (6th Cir. Tenn. 1969).

Where voluntary compensation is paid by employer's insurance carrier and payments are made by check, the statute of limitations will not begin to run until the check is received. Sizemore v. E. T. Barwick Industries, Inc., 225 Tenn. 226, 465 S.W.2d 873, 1971 Tenn. LEXIS 297 (1971).

The payment of medical expenses by the employer for physical examination of the employee made for the sole purpose of evaluating alleged injuries, with the employee receiving no medical treatment or medicine as a result thereof does not operate to toll the statute of limitations. Webb v. Rossville Home & Auto Supply Co., 483 S.W.2d 579, 1972 Tenn. LEXIS 367 (Tenn. 1972).

The statute of limitations begins to run from the date the disability manifests itself, disability being used synonymously with injury, and the running of the statute is suspended until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained. Reed v. Genesco, Inc., 512 S.W.2d 1, 1974 Tenn. LEXIS 474 (Tenn. 1974).

Where an employee sustained an eye injury resulting in immediate pain, irritation and impairment of vision and three months later when he consulted a physician was advised that he had suffered a detached retina, the statute of limitations began to run, at the latest from the date of this advice from the physician. Reed v. Genesco, Inc., 512 S.W.2d 1, 1974 Tenn. LEXIS 474 (Tenn. 1974).

Where claimant, after an injury, suffered severe pain requiring home remedies from the time of the injury, but lost no time from work and did not file suit until 22 months later, after learning she had suffered a cervical spine injury, the court held that the suit was barred by the statute of limitations under this section and § 50-6-224, since the running of the statute is tolled only until, by reasonable care and diligence, a claimant should have known or discovered that a compensable injury had been sustained. Taylor v. Clayton Mobile Homes, Inc., 516 S.W.2d 72, 1974 Tenn. LEXIS 440 (Tenn. 1974).

It is the date of the last voluntary payment of medical bills rather than the date of last medical treatment which starts the running of the statute of limitations. Union Carbide Corp., Food Products Div. v. Cannon, 523 S.W.2d 360, 1975 Tenn. LEXIS 603 (Tenn. 1975).

Period of limitation on claim for compensation for herniated disc ran from date of diagnosis after employee had previously suffered much pain and was treated by several physicians, none of whom had advised her that she suffered from a herniated disc or other permanent disability. Union Carbide Corp., Food Products Div. v. Cannon, 523 S.W.2d 360, 1975 Tenn. LEXIS 603 (Tenn. 1975).

The running of the statute of limitations is suspended until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained. Union Carbide Corp., Food Products Div. v. Cannon, 523 S.W.2d 360, 1975 Tenn. LEXIS 603 (Tenn. 1975); Norton Co. v. Coffin, 553 S.W.2d 751, 1977 Tenn. LEXIS 592 (Tenn. 1977).

Where the employee received medical benefits under the workers' compensation law of Arkansas which would also satisfy the Tennessee Workers' Compensation Law, it was error for the trial court to summarily dismiss the employee's suit for failing to bring the action within the Tennessee limitations period since this statute of limitations would not run, if the employer should be proved subject to the Tennessee law, while such benefits were being paid on behalf of the employer, unless it could be proved that the employee made a binding election to accept Arkansas benefits. Thomas v. Transport Ins. Co., 532 S.W.2d 263, 1976 Tenn. LEXIS 603 (Tenn. 1976).

The statute of limitations begins to run at the termination of voluntary payments or when the employee, by a reasonable exercise of diligence and care, would have discovered that a compensable injury had been sustained, and where such knowledge was conveyed to plaintiff through her attorney subsequent to the cessation of voluntary payments, a complaint filed more than one year following the conveyance of such information was barred on its face by this section and the fact that the doctor did not personally inform plaintiff as to the extent of her injury did not toll the running of the statute. Bellar v. Baptist Hospital, Inc., 559 S.W.2d 788, 1978 Tenn. LEXIS 700 (Tenn. 1978).

Where employee and his doctor thought he had a complete recovery from injury to his eye in June 1975, and that doctor and a specialist found nothing to reverse that opinion on January 5, 1976, and January 14, 1976, respectively, an action filed on January 11, 1977, was within the statute. Davidson & Graham Constr. Co. v. McKee, 562 S.W.2d 426, 1978 Tenn. LEXIS 589 (Tenn. 1978).

Evidence supported a determination that employee had no reason to know that she had sustained a compensable injury until two years after the injury occurred. Hibner v. St. Paul Mercury Ins. Co., 619 S.W.2d 109, 1981 Tenn. LEXIS 462 (Tenn. 1981).

Where plaintiff was injured on July 30 or 31, 1979, and up until the second week of November, 1979, when her back and leg pain began to increase, her pain had lessened due to shots and medication prescribed by her physician, to the extent that plaintiff was able to return to work and believed that her condition had improved, and plaintiff did not file suit until August 25, 1980, it could not be said that there was no genuine issue of material fact regarding the bar of the one-year statute of limitations, or that defendant was entitled to judgment as a matter of law. Jones v. Home Indem. Ins. Co., 651 S.W.2d 213, 1983 Tenn. LEXIS 661 (Tenn. 1983).

Where the injury is of a continuous and gradual deterioration over several years, and the severity of the injury is not known for several years, the statute of limitations runs not from the date of the original injury, but rather from the date the severity of the injury first becomes known. Osborne v. Burlington Industries, Inc., Klopman Div., 672 S.W.2d 757, 1984 Tenn. LEXIS 814 (Tenn. 1984).

The statute of limitations began to run from the date the condition was first diagnosed as a permanent injury, and not from the date on which the compensable accident occurred. Jones v. Home Indem. Ins. Co., 679 S.W.2d 445, 1984 Tenn. LEXIS 874 (Tenn. 1984).

The date that the employee's disability manifests itself to a person of reasonable diligence, rather than the date of the accident, triggers the statute of limitations. McLerran v. Mid-South Stone, Inc., 695 S.W.2d 181, 1985 Tenn. LEXIS 539 (Tenn. 1985).

It is the date that an employee's disability manifested itself to a person of reasonable diligence, rather than the date of the accident, if a different date, which triggers the statute of limitations. Banks v. St. Francis Hospital, 697 S.W.2d 340, 1985 Tenn. LEXIS 549 (Tenn. 1985).

Statute of limitations did not begin to run until the employee learned from his physician that he had a work-related compensable injury. Livingston v. Shelby Williams Industries, Inc., 811 S.W.2d 511, 1991 Tenn. LEXIS 138 (Tenn. 1991).

One-year statute of limitations on the plaintiff's claim against the second injury fund began to run on the date of the adjudication of the permanent partial disability award from the plaintiff's first injury. The statute begins to run when recovery of an award for a prior injury actually materializes, and not, as the fund advocates, when an employee has knowledge of a potential claim. Gibson v. Swanson Plating & Machine, Inc., 819 S.W.2d 796, 1991 Tenn. LEXIS 456 (Tenn. 1991).

The limitations period for claims arising from repetitive stress injuries begins on the first day the employee is unable to work because of the injury. Lawson v. Lear Seating Corp., 944 S.W.2d 340, 1997 Tenn. LEXIS 204 (Tenn. 1997).

An action against the Second Injury Fund under T.C.A. § 50-6-208(a) must be commenced within one year after the occurrence of the injury, as required by T.C.A. § 50-6-224(1) (now § 50-6-224(a)(1)) or, if the employer has made voluntary payment of compensation benefits within that period, within one year after the cessation of benefits as required by T.C.A. § 50-6-203. Pearson v. Day Int'l, 951 S.W.2d 375, 1996 Tenn. LEXIS 464 (Tenn. Special Workers' Comp. App. Panel 1996).

The one year statute of limitations provided for in T.C.A. § 50-6-203 begins to run when through the exercise of reasonable care and diligence it becomes discoverable and apparent that the employee sustained a compensable injury. Mackie v. Young Sales Corp., 51 S.W.3d 554, 2001 Tenn. LEXIS 759 (Tenn. 2001).

In some cases, the statute of limitations provided for in T.C.A. § 50-6-203 may not begin to run until after an employee's retirement, and an employee's voluntary retirement does not preclude workers' compensation benefits. Mackie v. Young Sales Corp., 51 S.W.3d 554, 2001 Tenn. LEXIS 759 (Tenn. 2001).

Trial court did not err by finding that the employee's workers'  compensation claim based on carpal tunnel syndrome was not barred by the one-year statute of limitations, T.C.A. § 50-6-203, because although the employee had discussed his injury with his supervisor after his first doctor visit in May 2002 and did not file suit until June 2003, the employee did not know of the work-related or permanent nature of his injury until a later May 2003 appointment. Barnett v. Earthworks Unlimited, Inc., 197 S.W.3d 716, 2006 Tenn. LEXIS 635 (Tenn. 2006), overruled, Jacks v. East Tenn. Mech. Contrs., Inc., — S.W.3d —, 2009 Tenn. LEXIS 526 (Tenn. Aug. 24, 2009).

Holding that the last day worked rule applied to an employee's claim for a gradually occurring back injury, the supreme court held that if the employee had filed a workers'  compensation claim in 1997, when he first gave notice of his work-related injury, he would have received limited benefits due to the minor nature of his injury at that time, and the employee would have then been barred from collecting permanent disability benefits when his injury progressed to the point of permanent injury. Bldg. Materials Corp. v. Britt, 211 S.W.3d 706, 2007 Tenn. LEXIS 21 (Tenn. 2007).

Trial court erred by dismissing an employee's claim for a gradually occurring back injury because it found that the claim was time barred because it was not made within one year of his original back injury in 1997; the supreme court of Tennessee concluded that the statute of limitations for the employee's gradually occurring injury did not start to run until he was prevented from working due to his back injury, thus the last-day worked rule applied. Bldg. Materials Corp. v. Britt, 211 S.W.3d 706, 2007 Tenn. LEXIS 21 (Tenn. 2007).

Supreme court of Tennessee held that the date of an employee's gradually occurring injury should be determined using the last-day worked rule; to the extent that Bone v. Saturn Corp., 148 S.W.3d 69, 2004 Tenn. LEXIS 907, and its progeny hold otherwise, they are hereby overruled. Bldg. Materials Corp. v. Britt, 211 S.W.3d 706, 2007 Tenn. LEXIS 21 (Tenn. 2007).

Trial court erred in granting an employer summary judgment on the ground that an employee's claim for workers'  compensation benefits was barred by the statute of limitations, T.C.A. § 50-6-203, because the limitations period did not commence until the employee was diagnosed as having post-traumatic stress disorder; summary judgment was inappropriate as to the issue of whether the statute of limitations barred the employee's cause of action. Gerdau Ameristeel, Inc. v. Ratliff, 368 S.W.3d 503, 2012 Tenn. LEXIS 401 (Tenn. June 7, 2012).

7. Waiver.

The provisions of this section may be waived by the insurance carrier. Hartford Acci. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904, 1928 Tenn. LEXIS 76 (1929).

8. Estoppel.

Where employer's agent induced employee to believe and rely on representations that employer would not plead statute of limitations, employer was estopped to plead the statute. American Mut. Liability Ins. Co. v. Baxter, 210 Tenn. 242, 357 S.W.2d 825, 1962 Tenn. LEXIS 429 (1962).

In the suit to collect workers' compensation, the party which claimed equitable estoppel must have justifiably relied on the misrepresentation or concealment of a material fact. Ryan v. Lumbermen's Mut. Casualty Co., 485 S.W.2d 548, 1972 Tenn. LEXIS 381 (Tenn. 1972).

Where a complaint was filed more than one year following termination of voluntary payments of compensation, defendants were estopped to rely on the defense of the statute of limitations because their conduct led plaintiff to believe that the voluntary payments had not ceased but would be forthcoming in the future. Bellar v. Baptist Hospital, Inc., 559 S.W.2d 788, 1978 Tenn. LEXIS 700 (Tenn. 1978).

Fraudulent misrepresentations by an employer or its agents may estop an employer from relying upon the statute of limitations. Dukes v. Montgomery County Nursing Home, 639 S.W.2d 910, 1982 Tenn. LEXIS 349 (Tenn. 1982).

Where plaintiff employee reasonably relied upon the representation implied by employer's insurer's making of “disability” payments that they constituted payments of benefits due him under the Workers' Compensation Act, T.C.A. § 50-6-201 et seq., for the accident which he had sustained, employer was estopped to deny that the statute of limitations was tolled while the insurer made such payments. Lusk v. Consolidated Aluminum Corp., 655 S.W.2d 917, 1983 Tenn. LEXIS 703 (Tenn. 1983).

9. Effect of Payment of Compensation.

Suit of employee to recover compensation for wrist injury as result of occupational disease which was filed on May 2, 1951, was not barred by virtue that she quit her job due to injury on January 28, 1950 where employer made compensation payments until September 9, 1950, since compensation payments by virtue of the 1947 amendment tolled one year statute of limitations. Holeproof Hosiery Co. v. Wilkins, 194 Tenn. 683, 254 S.W.2d 973, 1953 Tenn. LEXIS 290 (1953).

Where employer recognized his liability to injured employee and made voluntary weekly payments to him after his injury, fact that amount paid was in excess of the amount required under the statute was not sufficient to support finding of trial court that such payments were made as gratuities, and such payments amounted to voluntary payments within the meaning of this section so as to prevent the running of the limitation. Adams v. Patterson, 199 Tenn. 603, 288 S.W.2d 453, 1956 Tenn. LEXIS 359 (1956).

Employer's voluntary payment of medical bills of injured employee constituted voluntary payment of compensation and tolled the running of the statute. John Sevier Motor Co. v. Mullins, 205 Tenn. 227, 326 S.W.2d 441, 1959 Tenn. LEXIS 357 (1959); Gallatin v. Anderson, 209 Tenn. 392, 354 S.W.2d 84, 1962 Tenn. LEXIS 369 (1962); Chandler v. Travelers Ins. Co., 212 Tenn. 199, 369 S.W.2d 390, 1963 Tenn. LEXIS 413 (1963).

Voluntary payments of compensation by the employer of his insurance carrier within one year of the injury toll the running of the statute of limitations. Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124, 1966 Tenn. LEXIS 559 (1966).

Although payment to a physician by an employer solely for examination of the nature and extent of an employee's injuries will not operate to toll the statute of limitations, where the payment made for that purpose includes also payment for medical services rendered for the benefit of the employee, this amounted to a payment of compensation and tolled the running of the statute to the date of the last payment made, although not to the date of the last treatment given subsequent to the payment. Reed v. Genesco, Inc., 512 S.W.2d 1, 1974 Tenn. LEXIS 474 (Tenn. 1974).

Incapacitation pay and medical bills paid by the federal government to and on the behalf of an injured national guardsman did not toll the running of the limitation period for filing a workers' compensation claim against the state. Dial v. State, 796 S.W.2d 143, 1990 Tenn. LEXIS 321 (Tenn. 1990).

10. Practice and Procedure.

11. —Summons — Effect of Issuance and Execution.

Action of employee in causing issuance and execution of summons following form of an ordinary action for damages for personal injuries, which would have supported such an action is not a filing of a “claim for compensation” tolling limitation period, the summons conveying no notice that injury arose out of employment or that claim in petition would be under this statute rather than under common law. Minor v. E. I. Du Pont De Nemours & Co., 164 Tenn. 226, 47 S.W.2d 748, 1931 Tenn. LEXIS 26 (1932).

There was no commencement of an action for compensation by the issuance of a summons without the filing of a petition and, therefore, the issuance of such a summons and the later voluntary nonsuit did not stop the running of the statute of limitations. Bradshaw v. Claridy, 213 Tenn. 297, 375 S.W.2d 852, 1964 Tenn. LEXIS 390 (1964).

12. —Pleading.

Where injured employee's petition for compensation alleged that notice of the injury was given within 30 days after discovery of the injury although several months after the accident and further that from the date of the notice until the date of the filing of the petition she “had been continuously confined to her bed and physically unable to look after and manage her affairs and that her disability was such that she was physically incapacitated from instituting suit to recover compensation,” such allegation placed petitioner within the exception to this section provided by § 50-6-224(4) (now § 50-6-224(a)(4)), so as to excuse her from filing the petition within one year. McBrayer v. Dixie Mercerizing Co., 176 Tenn. 560, 144 S.W.2d 764, 1940 Tenn. LEXIS 101 (1940).

13. — —Amendment after Statutory Period.

Where the original petition of injured employee alleged that he was injured while installing a machine and an amendment was made more than a year after the accident averring that petitioner was injured while installing and demonstrating the machine, the amendment did not state a new cause of action so as to be barred by this section. Owen v. St. Louis Spring Co., 175 Tenn. 543, 136 S.W.2d 498, 1939 Tenn. LEXIS 72 (1940).

14. —Proof.

Where petitioner contended that defendant voluntarily paid medical expenses within the year, it was incumbent upon such petitioner to introduce some evidence as to the date of such payment. Bradshaw v. Claridy, 213 Tenn. 297, 375 S.W.2d 852, 1964 Tenn. LEXIS 390 (1964).

The burden of proof rests upon the petitioner to bring himself within the saving clause at the end of this section. Bradshaw v. Claridy, 213 Tenn. 297, 375 S.W.2d 852, 1964 Tenn. LEXIS 390 (1964).

15. —Fraud and Concealment — Sufficiency of Allegations and Proof.

Where plaintiff brought suit under the Workers' Compensation Law approximately two years after the injury and averred that defendant was estopped to rely on the one year statute of limitations because it knew or should have known the nature and extent of his injuries and did not disclose same to him but did not aver that defendant knew of and purposely concealed the facts with reference to plaintiff's injuries there was no estoppel as the element of fraudulent concealment necessary to such estoppel was not present. Netherland v. Mead Corp., 170 Tenn. 520, 98 S.W.2d 76, 1936 Tenn. LEXIS 23 (1936).

Where there was material evidence in the record to support the finding of the lower court that defendant in compensation case did not act fraudulently or negligently with respect to medical treatment given plaintiff and where there was nothing in the record to show that defendant's physician acted in bad faith or fraudulently in making diagnosis of plaintiff's injury and where plaintiff in his declaration alleged that defendant's physician told him that he “thought” he only had a strain, plaintiff's contention that defendant was estopped to deny the one year statute of limitations was properly overruled. Netherland v. Mead Corp., 170 Tenn. 520, 98 S.W.2d 76, 1936 Tenn. LEXIS 23 (1936).

16. —Dismissed or Remanded Action — Right to Bring New Proceedings.

Where common law action by widow for damages for death of employee was dismissed by court of appeals because the accident causing the death arose out of the scope of employment so that it was within the application of the Workers' Compensation Law and the dismissal was beyond the period of limitation, the widow was not entitled under § 28-1-105 to institute suit under the compensation statute as the two proceedings were not same cause of action. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

Where requirement of this section and § 50-6-224 for commencement of the action within certain period was met by giving or waiving notice and filing petition on time, such petition, after its dismissal for inconclusive grounds, could be renewed under § 28-1-105 within one year from time of its dismissal. Rye v. Dupont Rayon Co., 163 Tenn. 95, 40 S.W.2d 1041, 1931 Tenn. LEXIS 92 (1931).

Where three separate and distinct accidental injuries are relied upon by employee, and the first in point of time was shown and held to have been barred by the statute, a new trial awarded by the supreme court will be on terms of permitting liability for that accidental injury to remain as thus adjudicated, and the remand is to test liability on basis of other accidental injuries. Burton v. Miller Bros. Co., 166 Tenn. 622, 64 S.W.2d 195, 1933 Tenn. LEXIS 127 (1933).

Where employee commenced suit in August 1956 based on theory of occupational disease and such suit was terminated by voluntary nonsuit in March 1957, and subsequent suit was commenced in June 1957 based on theory that disability resulted from accident occurring in February 1956 from which he became totally and permanently disabled in April 1956, employee's second suit was not barred by the limitation of this section since original action could have been amended to include allegations of second suit and provisions of § 28-1-105 permitting new action within one year after taking voluntary nonsuit were applicable. Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 315 S.W.2d 245, 1958 Tenn. LEXIS 230 (1958).

Section 28-1-105, permitting new action within one year of adverse decision not affecting merits, is applicable to workers' compensation proceedings. General Acci. Fire & Life Assurance Corp. v. Kirkland, 210 Tenn. 39, 356 S.W.2d 283, 1962 Tenn. LEXIS 410 (1962).

17. —Consideration of Limitation on Appeal.

Although the defense of the one year statute of limitations was set up in the answer to the petition, such defense could not be considered by the supreme court, where it was not mentioned in the motion for a new trial, nor in the assignment of error, notwithstanding § 28-1-105, since the supreme court will consider only such errors as are shown to have been called to the attention of the trial court. Sears-Roebuck & Co. v. Finney, 169 Tenn. 547, 89 S.W.2d 749, 1935 Tenn. LEXIS 81 (1936).

18. Contribution between Contractor and Subcontractor.

Declaration alleging that general contractor's insurance carrier paid contractor's employee workers' compensation benefits but that employee was actually loaned to subcontractor at the time of injury and that contractor's carrier was entitled to recover compensation payments from subcontractor's carrier stated cause of action for indemnity or contribution, and six year statute of limitation provided by § 28-3-109 governed rather than the one year period provided by this section. Travelers Ins. Co. v. Fidelity & Casualty Co., 219 Tenn. 244, 409 S.W.2d 175, 1966 Tenn. LEXIS 522 (1966).

19. Tolling of Statute.

Voluntary furnishing of medical services in accordance with § 50-6-204 during year following notice to employer of injury tolled the running of the statute even though employer had not paid bills for such services. Fields v. Lowe Furniture Corp., 220 Tenn. 212, 415 S.W.2d 340, 1967 Tenn. LEXIS 399 (1967); Universal Underwriters Ins. Co. v. A. J. King Lumber Co., 553 S.W.2d 749, 1977 Tenn. LEXIS 591 (Tenn. 1977); Norton Co. v. Coffin, 553 S.W.2d 751, 1977 Tenn. LEXIS 592 (Tenn. 1977).

Where an employer makes a voluntary payment of medical bills of an injured employee, this tolls the running of the statute of limitations. Brewer v. Pocahontas Fuel Co., 221 Tenn. 130, 425 S.W.2d 582, 1968 Tenn. LEXIS 452 (1968).

Although payment to a physician by an employer solely for examination of the nature and extent of an employee's injuries will not operate to toll the statute of limitations, where the payment made for that purpose included also payment for medical services rendered for the benefit of the employee, this amounted to a payment of compensation and tolled the running of the statute to the date of the last payment made, although not to the date of the last treatment given subsequent to the payment. Reed v. Genesco, Inc., 512 S.W.2d 1, 1974 Tenn. LEXIS 474 (Tenn. 1974).

Voluntary payments of compensation by the employer or the insurance carrier tolls the statute of limitations. Union Carbide Corp., Food Products Div. v. Cannon, 523 S.W.2d 360, 1975 Tenn. LEXIS 603 (Tenn. 1975).

Medical payments made more than one year after the statute of limitations commenced to run could not toll the statute. Union Carbide Corp., Food Products Div. v. Cannon, 523 S.W.2d 360, 1975 Tenn. LEXIS 603 (Tenn. 1975).

Payment of medical bills by employer's medical and hospitalization insurer was not a voluntary payment of compensation so as to toll the running of the statute of limitations on compensation claim. Union Carbide Corp., Food Products Div. v. Cannon, 523 S.W.2d 360, 1975 Tenn. LEXIS 603 (Tenn. 1975).

Payment of bill of physician who examined employee for purpose of ascertaining whether she was able to return to work did not constitute payment of compensation so as to toll running of statute of limitations. Union Carbide Corp., Food Products Div. v. Cannon, 523 S.W.2d 360, 1975 Tenn. LEXIS 603 (Tenn. 1975).

The voluntary furnishing of medical services, whether paid for or not, is sufficient to toll or waive the statute of limitations. Crowder v. Klopman Mills, Div. of Burlington Industries, Inc., 627 S.W.2d 930, 1982 Tenn. LEXIS 381 (Tenn. 1982).

20. Voluntary Payments.

Deferred credits to which the employer was entitled under T.C.A. § 50-6-112 were not the equivalent of voluntary payments of compensation by the employer and did not toll the statute of limitations. Kirby v. Knoxville News-Sentinel, 665 S.W.2d 709, 1984 Tenn. LEXIS 740 (Tenn. 1984).

Settlement in tort action was not a voluntary payment by or on behalf of the employer and did not toll the one-year statute of limitations. Kirby v. Knoxville News-Sentinel, 665 S.W.2d 709, 1984 Tenn. LEXIS 740 (Tenn. 1984).

Incapacitation pay and medical expenses paid by the federal government and medicaid benefits paid by the state government are not “voluntary payments of compensation”, which tolls the one-year statute of limitations in T.C.A. § 50-6-203. Carpenter v. State, 838 S.W.2d 525, 1992 Tenn. LEXIS 568 (Tenn. 1992).

21. Voluntary Termination.

Action was not time barred where permanent disability did not manifest itself until almost 20 years after the employer-employee relationship, which was the basis for liability, had been voluntarily terminated by the employee to seek other employment. Oliver v. State, 762 S.W.2d 562, 1988 Tenn. LEXIS 250 (Tenn. 1988).

22. Revival.

While it is true that the voluntary payment of medical expenses tolls the statute of limitations until the last payment is made, it is also true that the voluntary payment of benefits after the statute of limitations has expired does not revive the employee's cause of action. Ogden v. Matrix Vision of Williamson County, Inc., 838 S.W.2d 528, 1992 Tenn. LEXIS 569 (Tenn. 1992).

24. Claim Not Barred.

Because employee's doctor consistently provided advice regarding employee's hearing loss and because employee never received any warnings to avoid exposure to loud noise, employee neither knew nor should have known that he sustained a compensable injury until the day before trial; therefore, the statute of limitations had not expired. Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 2000 Tenn. LEXIS 686 (Tenn. 2000).

Limitations period did not bar an employee's claim for workers'  compensation benefits because the evidence did not preponderate against the trial court's finding that an employee could not have reasonably known or discovered that his post-traumatic stress disorder symptoms were related to work activities until his diagnosis. Gerdau Ameristeel, Inc. v. Ratliff, 368 S.W.3d 503, 2012 Tenn. LEXIS 401 (Tenn. June 7, 2012).

Because an employee gained actual or constructive knowledge of his injury in August 2011, his claim was not time-barred; the testimony of one doctor and the office notes of another doctor clearly demonstrated that the employee's injury was atypical, and a reasonable person would have likely concluded, as did the employee, no permanent injury existed. Cowan v. Knox Cnty., — S.W.3d —, 2016 Tenn. LEXIS 121 (Tenn. Feb. 24, 2016), aff'd, — S.W.3d —, 2016 Tenn. LEXIS 120 (Tenn. Feb. 24, 2016).

25. Exhaustion of Administrative Remedies.

When the time stamp on an employee's complaint seeking workers'  compensation benefits was two minutes earlier than the time stamp on a benefit review conference report (report), a trial court had no jurisdiction to consider the complaint because (1) T.C.A. § 50-6-225(a)(2)(A) required the parties to exhaust the benefit review process before seeking judicial review, (2) while the statute did not state exactly when a benefit review conference was deemed exhausted, Tenn. Comp. R. & Regs. 0800-2-5-.09 stated the date and time noted on the report determined when that process was exhausted, (3) this regulation had the force of law, since the legislature authorized the division (now bureau) of workers'  compensation to create a benefit review conference process in T.C.A. § 50-6-233(a)(3) and (c)(2), and (4) extrinsic evidence could not be used to impeach the time stamp on the complaint, absent fraud, inevitable accident, or surprise, which were not shown, as that time stamp was unambiguous, so the complaint was filed before the time noted on the report, and, as a result, the complaint did not invoke the trial court's jurisdiction. Word v. Metro Air Servs., 377 S.W.3d 671, 2012 Tenn. LEXIS 510 (Tenn. Aug. 21, 2012).

When a trial court's subject matter jurisdiction over a workers'  compensation case, pursuant to T.C.A. § 50-6-225(a)(2)(A), is premised on the issuance of a benefit review report (report), as specified by Tenn. Comp. R. § Regs. 0800-2-5-.09(1), a complaint may not be filed until the time noted on the report, and, when a complaint bears an unambiguous time stamp, the complaint shall be deemed filed at the time indicated, and the time stamp may not be impeached by extrinsic evidence. Word v. Metro Air Servs., 377 S.W.3d 671, 2012 Tenn. LEXIS 510 (Tenn. Aug. 21, 2012).

Trial court lacked subject matter jurisdiction over a workers'  compensation complaint since an employee failed to exhaust her administrative remedies as required by T.C.A. §§ 50-6-203(a) and 50-6-225(a)(1) as she bypassed the benefit review conference process after the Tennessee Department of Labor (TDOL) did not act promptly on her request for assistance under T.C.A. § 50-6-238; the employee had alternatives other than filing suit to prompt TDOL to act, including additional contact with the specialist, contact with the Administration of the Tennessee Division (now Bureau) of Workers Compensation, or, as a last resort, filing a mandamus action. Chapman v. Davita, Inc., 380 S.W.3d 710, 2012 Tenn. LEXIS 643 (Tenn. Sept. 21, 2012).

Although the Tennessee Workers'  Compensation Act, T.C.A. § 50-6-101 et seq., was a remedial statute and was to be equitably construed under T.C.A. § 50-6-116, an employee's administrative remedies were not effectively exhausted for T.C.A. §§ 50-6-203(a) and 50-6-225(a)(1) purposes by the Tennessee Department of Labor's long period of inaction on the employee's request for assistance under T.C.A. § 50-6-238. Chapman v. Davita, Inc., 380 S.W.3d 710, 2012 Tenn. LEXIS 643 (Tenn. Sept. 21, 2012).

Parties did not seek court approval under T.C.A. § 50-6-206(a) and could not have proceeded under subsection (b) because, at all times relevant to the appeal, subsection (b) applied only to settlements not providing for future medical benefits, among other restrictions. Because the parties succeeded in reaching a mediated settlement, as evidenced by a signed document executed by the proper parties, the benefit review conference process was plainly exhausted. Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114, 2013 Tenn. LEXIS 204 (Tenn. Feb. 22, 2013).

Collateral References.

Computation of period for filing death claim under compensation statutes. 119 A.L.R. 1158.

Date of accident or date when injury becomes manifest as time from which period for filing claim commences to run. 108 A.L.R. 316.

Effect of fraud to toll the period for bringing actions to enforce workmen's compensation benefits. 15 A.L.R.2d 500.

Effect of injured employee's proceeding for workmen's compensation benefits on running of statute of limitations governing action for personal injury arising from same incident. 71 A.L.R.3d 849.

Failure or delay with respect to filing or reporting requirements as ground for denial of unemployment compensation benefits. 97 A.L.R.2d 752.

Limitation of time for filing claim under workmen's compensation as jurisdictional. 78 A.L.R. 1294.

Occupational or industrial disease, when prescriptive period begins to run in case of. 86 A.L.R. 572.

Payments, or furnishing medical or hospital services, or burial, by employer or his insurer, to employee after injury as affecting time for filing claim under compensation act. 144 A.L.R. 606.

Secondary or deferred class of beneficiaries of death benefits, rights of, as affected by failure of one in primary class of beneficiaries, to assert her rights within time limited by statute. 105 A.L.R. 1232.

War as suspending time for notice or filing of claim under Workmen's Compensation Act. 137 A.L.R. 1465, 140 A.L.R. 1518, 141 A.L.R. 1511.

When limitation period begins to run against claim under workmen's compensation or occupational diseases act, for contracting of disease. 11 A.L.R.2d 277.

When limitations period begins to run as to claim for disability benefits for contracting of disease under workers' compensation or occupational diseases act. 86 A.L.R.5th 295.

When time period commences as to claim under workers' compensation or occupational diseases act for death of worker due to contraction of disease. 100 A.L.R.5th 567.

50-6-204. Medical treatment, attendance and hospitalization — Release of medical records — Reports — Disputes — Reimbursement or payment of expenses — Burial expenses — Physical examinations — Pain management — Impairment ratings.

      1. 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.
      2. 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).
      1. 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.
      2. 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.
      3. 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.
      4. 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).
        1. 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.
        2. 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.
        3. 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.
        4. The bureau shall have authority to waive subdivision (a)(3)(A)(iii) when necessary to provide treatment for an injured employee.
      1. 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.
      2. 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.
        1. 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.
        2. 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.
      3. 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).
      4. 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.
      5. 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.
      6. 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.
      7. 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.
    1. [Deleted by 2013 amendment, effective July 1, 2014.]
    2. [Deleted by 2013 amendment, effective July 1, 2014.]
      1. 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.
      2. 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.
    1. 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.
    2. [Deleted by 2013 amendment, effective July 1, 2014.]
  1. 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.
    1. 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.
    2. 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.
    3. [Deleted by 2013 amendment, effective July 1, 2014.]
    4. The employer shall pay for the services of the physician making the examination at the instance of the employer.
    5. 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.
    6. 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.
    7. 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.
    8. 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.
    9. 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.
  2. 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.
  3. 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.
    1. 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.
      1. 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.
      2. 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.
  4. 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).
    1. 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.
    2. 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.
    3. 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.
    4. 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.
    1. 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.
      1. 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.
      2. 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.”
    2. 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.
      1. 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.
      2. If the injured or disabled employee violates any of the conditions of the agreement on more than one (1) occasion, then:
        1. 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;
        2. 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
        3. 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).
      3. 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.
      4. 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).
        1. 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.
        2. 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.
    3. 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).
    1. All permanent impairment ratings shall be assigned by the treating physician or chiropractor.
      1. The treating physician or chiropractor shall utilize the applicable edition of the AMA guides as established by this chapter.
      2. 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.
      3. 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.
    2. 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.
    3. 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.
    4. Scheduling of the evaluation shall occur within time limits and according to procedures promulgated by the administrator by rule.
    5. 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.
    6. 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.

Acts 1919, ch. 123, § 25; Shan. Supp., § 3608a174; Code 1932, § 6875; Acts 1941, ch. 90, § 3; 1943, ch. 117, § 1; 1949, ch. 227, § 2; C. Supp. 1950, § 6875; Acts 1953, ch. 111, § 1; 1957, ch. 234, § 1; 1959, ch. 62, § 1; 1959, ch. 172, § 1; 1963, ch. 362, § 3; 1967, ch. 313, § 3; 1971, ch. 134, § 3; 1973, ch. 379, § 4; 1977, ch. 417, § 1; 1978, ch. 521, § 1; impl. am. Acts 1980, ch. 534, § 1; Acts 1980, ch. 650, § 1; T.C.A. (orig. ed.), § 50-1004; Acts 1983, ch. 194, § 1; 1983, ch. 215, § 1; 1983, ch. 276, § 1; 1984, ch. 782, § 1; 1985, ch. 393, § 3; 1986, ch. 792, § 1; 1986, ch. 809, § 1; 1988, ch. 525, § 3; 1989, ch. 210, § 1; 1989, ch. 446, § 1; 1991, ch. 255, § 1; 1996, ch. 790, § 1; 1997, ch. 198, § 1; 1997, ch. 259, § 1; 1997, ch. 533, § 2; 1998, ch. 1024, §§ 21, 22; 1999, ch. 225, § 1; 1999, ch. 294, §§ 2-5; 1999, ch. 520, § 41; 2000, ch. 990, §§ 1, 3; 2001, ch. 192, §§ 9, 10; 2001, ch. 246, § 1; 2003, ch. 359, § 2; 2004, ch. 433, § 1; 2004, ch. 962, §§ 1, 2, 5, 13, 24, 46; 2005, ch. 7, § 1; 2005, ch. 107, §§ 1, 2; 2005, ch. 188, § 1; 2006, ch. 902, § 1; 2007, ch. 300, § 1; 2007, ch. 522, § 1; 2007, ch. 543, § 1; 2008, ch. 835, § 1; 2008, ch. 1025, § 2; 2009, ch. 486, § 1; 2010, ch. 792, § 1; 2010, ch. 858, § 1; 2011, ch. 416, § 7; 2012, ch. 1100, § 3; 2013, ch. 282, §§ 1, 3; 2013, ch. 289, §§ 35-43; 2014, ch. 903, § 5; 2015, ch. 341, §§ 5, 15; 2017, ch. 380, §§ 2, 3.

Code Commission Notes.

The former last two sentences of subdivision (d)(6), concerning requiring the rules to take effect July 1, 2005, with the authority to use public necessity rules or emergency rules if necessary, were deleted as obsolete by the code commission in 2008.

Former subdivisions (i)(3)-(5), concerning the deadlines for filing proposed rules, commenting on the proposed rules, recommendations for appropriate legislation, holding public hearings and the effective date of the rules, were deleted as obsolete by the code commission in 2008.

Compiler's Notes. Acts 2000, ch. 990, § 3 provided that the provisions of the act shall not apply to workers' compensation self-insurer pools established pursuant to § 50-6-405(c)(1).

Acts 2004, ch. 433, § 1 provided that the provisions of subdivision (a)(4)(B) shall be repealed on June 30, 2005. Acts 2005, ch. 107, § 1 repealed the provisions of ch. 433, effective May 4, 2005.

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2004, ch. 962, § 51 provided, in part, that §§ 5 and 13 of the act shall apply to accidents or injuries occurring on or after July 1, 2004. Acts 2004, ch. 962, § 51 provided, in part, that § 24 of the act shall apply to accidents or injuries occurring on or after July 1, 2005.

Acts 2010, ch. 792, § 3 provided that the act, which deleted subdivisions (i)(4)(B)-(D), effective January 1, 2011, shall only apply to workers' compensation medical provider payments made, and an EOR or EOP issued, on or after January 1, 2011.

Acts 2011, ch. 416, § 10 provided that §§ 3-9 of the act, which amended §§ 50-6-102(12), 50-6-204(a)(1) and (2), 50-6-206(a)(2) and (b)  and 50-6-301, shall apply to injuries occurring on or after June 6, 2011.

Acts 2012, ch. 1100, § 5 provided that the act, which added subsection (j), shall apply to pain management, including the prescription of Schedule II, III, or IV controlled substances, prescribed on or after July 1, 2012.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Acts 2013, ch. 289, § 46, effective July 1, 2014, amends § 50-6-206, referred to in this section, by deleting it in its entirety. However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law. Thus, § 50-6-206 remains in effect as to injuries occurring prior to July 1, 2014.

Acts 2017, ch. 380, § 4 provided that the act, which amended this section, shall apply to injuries occurring on or after May 18, 2017.

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, substituted “administrator” or “administrator’s” for “commissioner” or “commissioner’s” throughout (d)(5) and (d)(6); and in (j)(4)(E)(i), substituted “may file a petition for benefit determination.” for “may either file a:” at the end of the introductory paragraph, and deleted (a) and (b) which read: “(a) Request for assistance pursuant to § 50-6-238, if the benefit review conference requirement has not been exhausted, and a workers’ compensation specialist shall determine whether such violations occurred; or “(b) Petition in a court of proper jurisdiction as provided in § 50-6-225, if the benefit review conference requirement has been exhausted, for a determination of whether such violations occurred.”

The 2013 amendment by ch. 289, effective July 1, 2014, deleted (a)(4), (a)(5), (b)(2), and (d)(3), which read: “(a)(4)(A) The injured employee shall accept the medical benefits afforded under this section; provided, that, except as provided in subdivision (a)(4)(B) or (a)(4)(C), the employer shall designate a group of three (3) or more reputable physicians or surgeons not associated together in practice, if available in that community, from which the injured employee shall have the privilege of selecting the operating surgeon and the attending physician; and provided, further, that the liability of the employer for the services rendered the employee shall be limited to the charges that are established in the applicable medical fee schedule adopted pursuant to this section.“(B) If the injury is a back injury, then the group of three (3) or more physicians or surgeons required to be designated pursuant to subdivision (a)(4)(A) shall be expanded to four (4), one (1) of whom must be a doctor of chiropractic; provided, that no more than twelve (12) visits to the doctor of chiropractic shall be approved per back injury, except upon the approval of the employer. The provisions of this subdivision (a)(4)(B) shall not apply to state or local government employees and shall not apply to workers' compensation self-insurer pools established pursuant to § 50-6-405(c)(1).“(C) If the injury or illness requires the treatment of a physician or surgeon who practices orthopedic or neuroscience medicine, then the employer may appoint a panel of physicians or surgeons practicing orthopedic or neuroscience medicine required to be designated pursuant to subdivision (a)(4)(A) consisting of five (5) physicians, with no more than four (4) physicians affiliated in practice.“(D) In circumstances where an employee is offered a treating panel as described in subdivision (a)(4)(C), the injured employee shall be entitled to have a second opinion on the issue of surgery, impairment, and a diagnosis from that same panel of physicians selected by the employer.“(E) The employer shall provide the applicable panel of physicians to the employee in writing on a form prescribed by the division, and the employee shall document in writing the physician the employee has selected and the employee shall sign and date the prescribed form. 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 division.“(a)(5) All cases of dispute as to the value of the services shall be determined by the tribunal having jurisdiction of the claim of the injured employee for compensation. The tribunal may also deny payment of physicians' fees and hospital charges for failure to submit the reports as required in this section.“(b)(2) In addition to any attorney fees provided for pursuant to § 50-6-226, a court may award attorney fees and reasonable costs to include reasonable and necessary court reporter expenses and expert witness fees for depositions and trials incurred when the employer fails to furnish appropriate medical, surgical and dental treatment or care, medicine, medical and surgical supplies, crutches, artificial members and other apparatus to an employee provided for pursuant to a settlement or judgment under this chapter.“(d)(3)(A) To provide uniformity and fairness for all parties in determining the degree of anatomical impairment sustained by the employee, a physician, chiropractor or medical practitioner who is permitted to give expert testimony in a Tennessee court of law and who has provided medical treatment to an employee or who has examined or evaluated an employee seeking workers' compensation benefits shall utilize the applicable edition of the AMA Guides as established in § 50-6-102 or, in cases not covered by the AMA Guides, an impairment rating by any appropriate method used and accepted by the medical community.“(B) No anatomical impairment or 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 a benefit review conference or be admissible into evidence at the trial of a workers' compensation matter unless the impairment 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.“(C) In the event of a release of a new edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, American Medical Association, other than the edition designated in § 50-6-102(2), the commissioner shall, within six (6) months of the release of the new edition, conduct an evaluation of the new edition and report the commissioner's findings and recommendations 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.”; in (a)(2), rewrote (A) which read: “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 department have reasonable access to the employee's medical records and medical providers that are pertinent to and necessary for the swift resolution of the employee's workers' compensation claim. Notwithstanding any law to the contrary, there shall be no implied covenant of confidentiality, prohibition against ex parte communications or privacy of medical records in the custody of authorized treating physicians with respect to case managers, employers, or insurance companies, or their attorneys, if these persons comply with subdivision (a)(2)(C); provided, however, that the employee, or the employee's attorney, shall be provided copies, no later than ten (10) days in advance of a deposition of the authorized treating physician taken for any purpose or the appearance of the authorized treating physician for testimony, of any and all written memorandum or visual or recorded materials, including e-mails or other written materials:“(i) Provided to the employee's authorized treating physician by case managers, employers, insurance companies, or their attorneys; or“(ii) Received from the employee's authorized treating physician.”, and substituted “subdivision (a)(2)” for “subdivision (a)(2)(C)” in (B); rewrote (a)(2)(C) which read: “To facilitate the timely resolution of workers' compensation claims and to facilitate the use of the benefit review process established by this chapter, there shall be reasonable access to any employee's medical information only by compliance with the following:“(i) An employee claiming workers' compensation benefits shall provide the employer or the division of workers' compensation with a signed, written medical authorization form as prescribed by the commissioner; provided, the form shall:“(a ) Be addressed to a specific medical provider authorized by the employer pursuant to this section;“(b ) Permit the release of information through communication, either orally or in writing, as authorized under this subdivision (a)(2)(C); and“(c ) Plainly state in capitalized lettering on the face of the document the following language:“THIS MEDICAL AUTHORIZATION FORM ONLY PERMITS THE EMPLOYER OR THE DIVISION OF WORKERS' COMPENSATION TO OBTAIN MEDICAL INFORMATION THROUGH ORAL OR WRITTEN COMMUNICATION, INCLUDING, BUT NOT LIMITED TO, CHARTS, FILES, RECORDS, AND REPORTS IN THE POSSESSION OF A MEDICAL PROVIDER AUTHORIZED BY THE EMPLOYER PURSUANT TO T.C.A. § 50-6-204 AND A MEDICAL PROVIDER THAT IS REIMBURSED BY THE EMPLOYER FOR THE EMPLOYEE'S TREATMENT;“(ii) An employee claiming workers' compensation benefits, or the employee's attorney, shall be entitled to obtain medical information, records, opinions, or reports from, or communicate in writing or in person with, any medical provider who has treated or provided medical care to the employee; provided, that the employee executes and provides the medical provider with a properly completed form as described in subdivision (a)(2)(C)(i).“(iii) Any medical provider authorized by the employer pursuant to this section and who has treated or provided medical care to an employee claiming workers' compensation benefits is permitted to communicate, orally or in writing, with the employer, or the employer's attorney, and shall honor any request by the employer for medical information, medical records, professional opinions, or medical reports pertaining to the claimed workers' compensation injury. Oral communication may be utilized, and includes, but is not limited to, a telephone conversation or an in-person meeting.“(iv) If an employee or employer files a request for assistance with the department, requesting the department to make a determination as to whether the claim is compensable or concerning an issue related to medical benefits or temporary disability benefits, the department may request, orally or in writing, medical information, records, opinions, or reports from the medical provider; provided, that:“(a ) Any response by the medical provider to the department's request shall be in writing; and“(b ) If the department receives documents or written responses to any request for information pursuant to this subdivision (a)(2)(C)(iv), then the department shall notify the employee, the employer and any attorney representing the employee or employer within fourteen (14) days of receipt of the document or written response that such persons may review or copy the documents or responses; provided, that the requesting party shall pay the copying fee authorized by subdivision (a)(1)(B) prior to the department providing the requested copies; and“(v)  If the department becomes involved in the appeal of a utilization review issue, then the department 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 or any attorney representing the employee or employer that they may review or copy the documents or responses; provided, that the requesting party shall pay the copying fee authorized by subdivision (a)(1)(B) prior to the department providing the requested copies.”;  rewrote (a)(3) which read: “Whenever it appears that the amount of medical benefits to which the employee may be entitled under this section will exceed the amount of five thousand dollars ($5,000), the insurer shall file written notice with the division of workers' compensation, which shall, upon receipt of the notice, notify the employer that the claim for medical benefits for the employee will exceed five thousand dollars ($5,000).”; rewrote (g)(2) which read: “(A) If an employer denies  it is required to provide or refuses to 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 court following a workers' compensation trial or as a result of a workers' compensation settlement agreement approved by a court or by the commissioner or the commissioner's designee pursuant to § 50-6-206, either the employee or the employer, or the attorney for the employee or employer, may request the assistance of a workers' compensation specialist to determine whether such medical care and treatment, medical services or medical benefits, or both, are appropriate by filing with the division a form prescribed for that purpose by the commissioner.“(B) A workers' compensation specialist 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 court following a workers' compensation trial or pursuant to a workers' compensation settlement agreement approved by a court or by the commissioner or the commissioner's designee pursuant to § 50-6-206. The specialist'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, and any authority granted to a specialist by § 50-6-238(a)(3). The specialist's authority shall also include any authority granted to a court by subdivision (b)(2), to award attorney fees and reasonable costs that include reasonable and necessary court reporter expenses and expert witness fees for depositions.“(C) Upon receipt of the request for assistance, the specialist shall review the available information and then, after such review, enter an order, on a form prescribed by the commissioner, in accord with the following:“(i) If the employer, or the employer's insurer, agrees it will provide medical care and treatment, medical services or medical benefits, or both, requested by the employee, the specialist shall issue an agreed order specifying the medical care and treatment to be provided by the employer and if the employer fails to comply with the agreed order, the specialist shall enter an order directing the employer or the employer's insurer to provide specific medical care and treatment; and“(ii) If the employer does not agree to provide the medical care and treatment at issue, the specialist shall enter an order as to whether the employer shall provide medical care and treatment, medical services or medical benefits, or both, to the employee, and if so, the specific medical care and treatment, medical services or medical benefits, or both, that shall be provided to the employee.“(D) If either the employee or the employer disagrees with the order entered by the specialist pursuant to subdivision (g)(2)(C)(ii), the following shall apply:“(i) If the request for assistance involved a request for medical care or treatment pursuant to a court judgment or decree following a trial of the underlying workers' compensation claim, then either the employer or the employee may appeal the specialist's order to the original court that issued the judgment or decree. The parties shall attach a copy of the specialist's order to any request for review that is filed in the original court; however, any review by the original court shall be de novo; and“(ii) If the request for assistance involved a request for medical care and treatment pursuant to a settlement approved by a court of competent jurisdiction or by the commissioner or the commissioner's designee pursuant to § 50-6-206, and either the employee or the employer disagrees with the order of the specialist, the aggrieved party may request administrative review pursuant to § 50-6-238(d) and all provisions of § 50-6-238(d) shall apply to the request. If administrative review is not requested, the order of the specialist shall be considered a final order for administrative purposes. If administrative review is requested, the order of the administrator or administrator's designee shall be considered a final order for administrative purposes, if not otherwise stated in the order.”; and added (k).

The 2014 amendment, in (a)(3)(C), as that subdivision was amended by Acts 2013, ch. 289, substituted “from a panel of two (2) physicians practicing in the same specialty as the physician who recommended the surgery” for “specified in the initial panel of physicians provided by the employer pursuant to subdivision (a)(3)(A)” at the end of the first sentence, and added the present second sentence.

The 2015 amendment substituted “bureau” for “division” throughout and rewrote (j)(2)(B) which read: “(B) For the purposes of the panel required by subdivision (j)(2)(A), “qualified physician” means an individual licensed to practice medicine or osteopathy in this state and:“(i) Board certified in anesthesiology, neurological surgery, orthopedic surgery, radiology or physical medicine and rehabilitation through the:“(a) American Board of Medical Specialties (ABMS);“(b) American Osteopathic Association (AOA); or“(c) Another organization authorized by the administrator; “(ii) Board certified by an organization listed in subdivision (j)(2)(B)(i)(a)-(c) in a specialty other than a specialty listed in subdivision (j)(2)(B)(i) and who has completed an ABMS or AOA subspecialty board in pain medicine, or completed an Accreditation Council for Graduate Medical Education (ACGMA) accredited pain fellowship; or “(iii) Serving as a clinical instructor in pain management at an accredited Tennessee medical training program.”

The 2017 amendment, in (a)(3)(B), substituted “chiropractors, or specialty” for “chiropractors or specialty” two times; inserted “not associated in practice together” following the first occurrence of “groups”, substituted “groups not associated in practice together that are” for “groups,”, substituted “one-hundred-twenty-five-mile radius of the employee’s community of residence” for “one hundred (100) mile radius of the employee’s community”, and added the last sentence; and, at the end of the first sentence of (c), substituted “ten thousand dollars ($10,000)” for “seven thousand five hundred dollars ($7,500)”.

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2014, ch. 903, § 14. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2017, ch. 380, § 4. May 18, 2017.

Cross-References. Deponents exempt from subpoena to trial but subject to subpoena to deposition, § 24-9-101.

Depositions by physicians, § 50-6-235.

Discontinuance or change in temporary disability benefits by employer, resumption or increase of benefits, § 50-6-234.

Period and maximum amount of compensation, § 50-6-205.

Workers' Compensation Appeals Board Decisions. The employee alleged she suffered injuries to her back, including a lumbar disc herniation, while working in the course and scope of her employment. Following a compensation hearing, the trial court concluded the employee had proven she suffered a work-related lumbar  strain, but had not met her burden of proving by a preponderance  of the evidence that the lumbar disc herniation  arose primarily out of and in the course and scope of her employment. As a result, the employer was responsible only for ongoing reasonable and necessary medical care for her work-related lumbar strain.  The employee argued the trial court incorrectly evaluated the expert medical proof, failed to consider the circumstances of the examinations conducted by each expert, and failed to consider the relative qualifications of the experts. She further argued the trial court unfairly discounted a neurosurgeon's causation opinion because he relied on her account of what caused her symptoms and considered whether it was a “reasonable” explanation. The Workers’ Compensation Appeal Board held that the trial court did not abuse its discretion in weighing the expert testimony, especially considering the presumption of correctness attributable to the authorized panel physician's causation opinion. Hollis v. Komyo America, 2019 TN Wrk Comp App Bd LEXIS 4.

In a second interlocutory appeal, the employer challenges the trial court's denial of its request to compel the employee to submit to a second independent medical examination by a physician of the employer's choosing due to the fact that the physician who conducted the first independent medical examination is planning to retire. The trial court did not err in concluding that the employer's request was unreasonable and premature and denying the employer's motion.  First, the employer had already received an examination by a physician of its choice and second, the physician indicated his intent to retire, but he may decide to continue to practice. McLaurin v. AT&T Services, LLC, 2019 TN Wrk Comp App Bd LEXIS 6.

NOTES TO DECISIONS

1. Impairment Rating.

Language in the American Medical Association Guides appeared to provide an appropriate basis for the doctor's decision to rate the employee's impairment according to the diagnosis-based model, and another physician did not address this section; the physician's testimony did not raise a serious or substantial doubt about the correctness of the doctor's use of the diagnosis-based model and thus the physician's testimony did not rebut the presumption of correctness assigned to the doctor's impairment rating. Marshall v. Pinnacle Food Grp., — S.W.3d —, 2016 Tenn. LEXIS 751 (Tenn. Oct. 27, 2016), aff'd, Marshall v. Pinnacle Food Group, — S.W.3d —, 2016 Tenn. LEXIS 750 (Tenn. Oct. 27, 2016).

In a workers'  compensation case in which the employee, who was employed by the city as a trash collector, allegedly sustained a low back injury on May 22, 2012, when lifting a wet sofa into a refuse truck, the trial court did not err in holding that the employee sustained a compensable injury and awarded 6% permanent partial disability benefits because the employee suffered a compensable injury as the testimonies of the employee, the employee's mother, and a board-certified orthopedic surgeon, and his supporting documentation, demonstrated that the May 22, 2012, workplace injury advanced the severity of the employee's preexisting condition; and the city failed to rebut the surgeon's impairment rating by clear and convincing evidence. Jordan v. City of Murfreesboro, — S.W.3d —, 2017 Tenn. LEXIS 853 (Tenn. Dec. 28, 2017).

2. Attorney Fees.

Because an employee offered no evidence of the causal link between the requested medical benefits and her injury to support her motion to compel medical benefits, the trial court erred in awarding her attorney fees; the employee offered no evidence from the authorized treating physician or any other witness to establish that the requested medical benefits were causally related to her compensable injury. Young v. Sugar Hollow Props., LLC, — S.W.3d —, 2018 Tenn. LEXIS 243 (Tenn. May 24, 2018).

3. Causation.

Appropriate medical care under this section requires the employee to establish, at a minimum, a causal relation between the requested treatment and the compensable injury. Young v. Sugar Hollow Props., LLC, — S.W.3d —, 2018 Tenn. LEXIS 243 (Tenn. May 24, 2018).

In a hearing on a motion to compel medical benefits, the employee cannot rest on the allegations of his or her motion; he or she must offer evidence to support his or her claim that the requested medical treatment was causally related to her compensable injury. Young v. Sugar Hollow Props., LLC, — S.W.3d —, 2018 Tenn. LEXIS 243 (Tenn. May 24, 2018).

4. Jurisdiction.

Trial court did not have subject matter jurisdiction to compel medical benefits for an employee's physical injuries because it had no basis for compelling a hospital to provide medical benefits that the trial court had not previously ordered or awarded; Hurst v. Claiborne Cty. Hosp. & Nursing Home, — S.W.3d —, 2018 Tenn. LEXIS 654 (Tenn. Oct. 24, 2018).

Trial court did not have subject matter jurisdiction to compel medical benefits for an employee's physical injuries because there was no judgment or court-approved settlement providing for future medical benefits related to the employee's physical injuries. Hurst v. Claiborne Cty. Hosp. & Nursing Home, — S.W.3d —, 2018 Tenn. LEXIS 650 (Tenn. Oct. 24, 2018).

5. Right to Choose Medical Care and Services.

Employer was not required to provide a panel of pain management physicians to an employee because the finding of the trial court that the employee's treating physician did not make a referral for pain management, despite the employee's contention otherwise, was supported by a preponderance of the evidence—including the testimony of the physician that the physician did not believe the pain medicine sought by the employee was indicated, saw no reason to send the employee for pain management, and did not make a referral for pain management. Brantley v. Brantley, — S.W.3d —, 2019 Tenn. LEXIS 504 (Tenn. Nov. 6, 2019).

50-6-204. Medical treatment, attendance and hospitalization — Release of medical records — Reports — Disputes — Reimbursement or payment of expenses — Burial expenses — Physical examinations — Pain management. [Applicable to injuries occurring prior to July 1, 2014.]

      1. 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.
      2. 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).
      1. 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 department have reasonable access to the employee's medical records and medical providers that are pertinent to and necessary for the swift resolution of the employee's workers' compensation claim. Notwithstanding any law to the contrary, there shall be no implied covenant of confidentiality, prohibition against ex parte communications or privacy of medical records in the custody of authorized treating physicians with respect to case managers, employers, or insurance companies, or their attorneys, if these persons comply with subdivision (a)(2)(C); provided, however, that the employee, or the employee's attorney, shall be provided copies, no later than ten (10) days in advance of a deposition of the authorized treating physician taken for any purpose or the appearance of the authorized treating physician for testimony, of any and all written memorandum or visual or recorded materials, including e-mails or other written materials:
        1. Provided to the employee's authorized treating physician by case managers, employers, insurance companies, or their attorneys; or
        2. Received from the employee's authorized treating physician.
      2. For purposes of subdivision (a)(2)(C), “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.
      3. To facilitate the timely resolution of workers' compensation claims and to facilitate the use of the benefit review process established by this chapter, there shall be reasonable access to any employee's medical information only by compliance with the following:

        THIS MEDICAL AUTHORIZATION FORM ONLY PERMITS THE EMPLOYER OR THE DIVISION OF WORKERS' COMPENSATION TO OBTAIN MEDICAL INFORMATION THROUGH ORAL OR WRITTEN COMMUNICATION, INCLUDING, BUT NOT LIMITED TO, CHARTS, FILES, RECORDS, AND REPORTS IN THE POSSESSION OF A MEDICAL PROVIDER AUTHORIZED BY THE EMPLOYER PURSUANT TO T.C.A. § 50-6-204 AND A MEDICAL PROVIDER THAT IS REIMBURSED BY THE EMPLOYER FOR THE EMPLOYEE'S TREATMENT;

        1. An employee claiming workers' compensation benefits shall provide the employer or the division of workers' compensation with a signed, written medical authorization form as prescribed by the commissioner; provided, the form shall:
          1. Be addressed to a specific medical provider authorized by the employer pursuant to this section;
          2. Permit the release of information through communication, either orally or in writing, as authorized under this subdivision (a)(2)(C); and
          3. Plainly state in capitalized lettering on the face of the document the following language:
        2. An employee claiming workers' compensation benefits, or the employee's attorney, shall be entitled to obtain medical information, records, opinions, or reports from, or communicate in writing or in person with, any medical provider who has treated or provided medical care to the employee; provided, that the employee executes and provides the medical provider with a properly completed form as described in subdivision (a)(2)(C)(i).
        3. Any medical provider authorized by the employer pursuant to this section and who has treated or provided medical care to an employee claiming workers' compensation benefits is permitted to communicate, orally or in writing, with the employer, or the employer's attorney, and shall honor any request by the employer for medical information, medical records, professional opinions, or medical reports pertaining to the claimed workers' compensation injury. Oral communication may be utilized, and includes, but is not limited to, a telephone conversation or an in-person meeting.
        4. If an employee or employer files a request for assistance with the department, requesting the department to make a determination as to whether the claim is compensable or concerning an issue related to medical benefits or temporary disability benefits, the department may request, orally or in writing, medical information, records, opinions, or reports from the medical provider; provided, that:
          1. Any response by the medical provider to the department's request shall be in writing; and
          2. If the department receives documents or written responses to any request for information pursuant to this subdivision (a)(2)(C)(iv), then the department shall notify the employee, the employer and any attorney representing the employee or employer within fourteen (14) days of receipt of the document or written response that such persons may review or copy the documents or responses; provided, that the requesting party shall pay the copying fee authorized by subdivision (a)(1)(B) prior to the department providing the requested copies; and
        5. If the department becomes involved in the appeal of a utilization review issue, then the department 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 or any attorney representing the employee or employer that they may review or copy the documents or responses; provided, that the requesting party shall pay the copying fee authorized by subdivision (a)(1)(B) prior to the department providing the requested copies.
      4. 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).
    1. Whenever it appears that the amount of medical benefits to which the employee may be entitled under this section will exceed the amount of five thousand dollars ($5,000), the insurer shall file written notice with the division of workers' compensation, which shall, upon receipt of the notice, notify the employer that the claim for medical benefits for the employee will exceed five thousand dollars ($5,000).
      1. The injured employee shall accept the medical benefits afforded under this section; provided, that, except as provided in subdivision (a)(4)(B) or (a)(4)(C), the employer shall designate a group of three (3) or more reputable physicians or surgeons not associated together in practice, if available in that community, from which the injured employee shall have the privilege of selecting the operating surgeon and the attending physician; and provided, further, that the liability of the employer for the services rendered the employee shall be limited to the charges that are established in the applicable medical fee schedule adopted pursuant to this section.
      2. If the injury is a back injury, then the group of three (3) or more physicians or surgeons required to be designated pursuant to subdivision (a)(4)(A) shall be expanded to four (4), one (1) of whom must be a doctor of chiropractic; provided, that no more than twelve (12) visits to the doctor of chiropractic shall be approved per back injury, except upon the approval of the employer. The provisions of this subdivision (a)(4)(B) shall not apply to state or local government employees and shall not apply to workers' compensation self-insurer pools established pursuant to § 50-6-405(c)(1).
      3. If the injury or illness requires the treatment of a physician or surgeon who practices orthopedic or neuroscience medicine, then the employer may appoint a panel of physicians or surgeons practicing orthopedic or neuroscience medicine required to be designated pursuant to subdivision (a)(4)(A) consisting of five (5) physicians, with no more than four (4) physicians affiliated in practice.
      4. In circumstances where an employee is offered a treating panel as described in subdivision (a)(4)(C), the injured employee shall be entitled to have a second opinion on the issue of surgery, impairment, and a diagnosis from that same panel of physicians selected by the employer.
      5. The employer shall provide the applicable panel of physicians to the employee in writing on a form prescribed by the division, and the employee shall document in writing the physician the employee has selected and the employee shall sign and date the prescribed form. 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 division.
    2. All cases of dispute as to the value of the services shall be determined by the tribunal having jurisdiction of the claim of the injured employee for compensation. The tribunal may also deny payment of physicians' fees and hospital charges for failure to submit the reports as required in this section.
      1. 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.
      2. 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.
    1. 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.
    2. In addition to any attorney fees provided for pursuant to § 50-6-226, a court may award attorney fees and reasonable costs to include reasonable and necessary court reporter expenses and expert witness fees for depositions and trials incurred when the employer fails to furnish appropriate medical, surgical and dental treatment or care, medicine, medical and surgical supplies, crutches, artificial members and other apparatus to an employee provided for pursuant to a settlement or judgment under this chapter.
  1. 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 seven thousand five hundred dollars ($7,500). 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.
    1. 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.
    2. 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.
      1. To provide uniformity and fairness for all parties in determining the degree of anatomical impairment sustained by the employee, a physician, chiropractor or medical practitioner who is permitted to give expert testimony in a Tennessee court of law and who has provided medical treatment to an employee or who has examined or evaluated an employee seeking workers' compensation benefits shall utilize the applicable edition of the AMA Guides as established in § 50-6-102 or, in cases not covered by the AMA Guides, an impairment rating by any appropriate method used and accepted by the medical community.
      2. No anatomical impairment or 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 a benefit review conference or be admissible into evidence at the trial of a workers' compensation matter unless the impairment 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.
      3. In the event of a release of a new edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, American Medical Association, other than the edition designated in § 50-6-102(2), the commissioner shall, within six (6) months of the release of the new edition, conduct an evaluation of the new edition and report the commissioner's findings and recommendations 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.
    3. The employer shall pay for the services of the physician making the examination at the instance of the employer.
    4. When a dispute as to the degree of medical impairment exists, either party may request an independent medical examiner from the commissioner's registry. If the parties are unable to mutually agree on the selection of an independent medical examiner from the commissioner's registry, it shall be the responsibility of the employer to provide a written request to the commissioner 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 commissioner 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 commissioner 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.
    5. The commissioner shall establish by rule, in accordance with the provisions of the Uniform Administrative Procedures Act, compiled title 4, chapter 5, an independent medical examiners registry. The commissioner 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.
    6. 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.
    7. 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.
    8. 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.
  2. 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.
  3. 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.
    1. 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.
      1. If an employer denies it is required to provide or refuses to 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 court following a workers' compensation trial or as a result of a workers' compensation settlement agreement approved by a court or by the commissioner or the commissioner's designee pursuant to § 50-6-206, either the employee or the employer, or the attorney for the employee or employer, may request the assistance of a workers' compensation specialist to determine whether such medical care and treatment, medical services or medical benefits, or both, are appropriate by filing with the division a form prescribed for that purpose by the commissioner.
      2. A workers' compensation specialist 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 court following a workers' compensation trial or pursuant to a workers' compensation settlement agreement approved by a court or by the commissioner or the commissioner's designee pursuant to § 50-6-206. The specialist'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, and any authority granted to a specialist by § 50-6-238(a)(3). The specialist's authority shall also include any authority granted to a court by subdivision (b)(2), to award attorney fees and reasonable costs that include reasonable and necessary court reporter expenses and expert witness fees for depositions.
      3. Upon receipt of the request for assistance, the specialist shall review the available information and then, after such review, enter an order, on a form prescribed by the commissioner, in accord with the following:
        1. If the employer, or the employer's insurer, agrees it will provide medical care and treatment, medical services or medical benefits, or both, requested by the employee, the specialist shall issue an agreed order specifying the medical care and treatment to be provided by the employer and if the employer fails to comply with the agreed order, the specialist shall enter an order directing the employer or the employer's insurer to provide specific medical care and treatment; and
        2. If the employer does not agree to provide the medical care and treatment at issue, the specialist shall enter an order as to whether the employer shall provide medical care and treatment, medical services or medical benefits, or both, to the employee, and if so, the specific medical care and treatment, medical services or medical benefits, or both, that shall be provided to the employee.
      4. If either the employee or the employer disagrees with the order entered by the specialist pursuant to subdivision (g)(2)(C)(ii), the following shall apply:
        1. If the request for assistance involved a request for medical care or treatment pursuant to a court judgment or decree following a trial of the underlying workers' compensation claim, then either the employer or the employee may appeal the specialist's order to the original court that issued the judgment or decree. The parties shall attach a copy of the specialist's order to any request for review that is filed in the original court; however, any review by the original court shall be de novo; and
        2. If the request for assistance involved a request for medical care and treatment pursuant to a settlement approved by a court of competent jurisdiction or by the commissioner or the commissioner's designee pursuant to § 50-6-206, and either the employee or the employer disagrees with the order of the specialist, the aggrieved party may request administrative review pursuant to § 50-6-238(d) and all provisions of § 50-6-238(d) shall apply to the request. If administrative review is not requested, the order of the specialist shall be considered a final order for administrative purposes. If administrative review is requested, the order of the administrator or administrator's designee shall be considered a final order for administrative purposes, if not otherwise stated in the order.
  4. 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)(4).
    1. The commissioner, 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, compiled in title 4, chapter 5, 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 commissioner 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 commissioner 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 commissioner 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.
    2. The commissioner 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.
    3. The commissioner, 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 commissioner 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.
      1. 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.
      2. [Deleted by 2010 amendment.]
      3. [Deleted by 2010 amendment.]
      4. [Deleted by 2010 amendment.]
    1. 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.
      1. 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)(4) 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)(4) shall not apply for the purposes of pain management.
      2. For the purposes of the panel required by subdivision (j)(2)(A), “qualified physician” means an individual licensed to practice medicine or osteopathy in this state and:
        1. Board certified in anesthesiology, neurological surgery, orthopedic surgery, radiology or physical medicine and rehabilitation through the:
          1. American Board of Medical Specialties (ABMS);
          2. American Osteopathic Association (AOA); or
          3. Another organization authorized by the commissioner;
        2. Board certified by an organization listed in subdivision (j)(2)(B)(i)(a )-(c ) in a specialty other than a specialty listed in subdivision (j)(2)(B)(i) and who has completed an ABMS or AOA subspecialty board in pain medicine, or completed an Accreditation Council for Graduate Medical Education (ACGMA) accredited pain fellowship; or
        3. Serving as a clinical instructor in pain management at an accredited Tennessee medical training program.
    2. 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.
      1. 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.
      2. If the injured or disabled employee violates any of the conditions of the agreement on more than one (1) occasion, then:
        1. 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;
        2. 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 § 50-6-241(d); and
        3. 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, 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).
      3. 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.
      4. 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).
        1. 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 either file a:
          1. Request for assistance pursuant to § 50-6-238, if the benefit review conference requirement has not been exhausted, and a workers' compensation specialist shall determine whether such violations occurred; or
          2. Petition in a court of proper jurisdiction as provided in § 50-6-225, if the benefit review conference requirement has been exhausted, for a determination of whether such violations occurred.
        2. If an employer or insurer alleges that an injured or disabled employee is not entitled to reconsideration under § 50-6-241(d) 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.
    3. 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).

Acts 1919, ch. 123, § 25; Shan. Supp., § 3608a174; Code 1932, § 6875; Acts 1941, ch. 90, § 3; 1943, ch. 117, § 1; 1949, ch. 227, § 2; C. Supp. 1950, § 6875; Acts 1953, ch. 111, § 1; 1957, ch. 234, § 1; 1959, ch. 62, § 1; 1959, ch. 172, § 1; 1963, ch. 362, § 3; 1967, ch. 313, § 3; 1971, ch. 134, § 3; 1973, ch. 379, § 4; 1977, ch. 417, § 1; 1978, ch. 521, § 1; impl. am. Acts 1980, ch. 534, § 1; Acts 1980, ch. 650, § 1; T.C.A. (orig. ed.), § 50-1004; Acts 1983, ch. 194, § 1; 1983, ch. 215, § 1; 1983, ch. 276, § 1; 1984, ch. 782, § 1; 1985, ch. 393, § 3; 1986, ch. 792, § 1; 1986, ch. 809, § 1; 1988, ch. 525, § 3; 1989, ch. 210, § 1; 1989, ch. 446, § 1; 1991, ch. 255, § 1; 1996, ch. 790, § 1; 1997, ch. 198, § 1; 1997, ch. 259, § 1; 1997, ch. 533, § 2; 1998, ch. 1024, §§ 21, 22; 1999, ch. 225, § 1; 1999, ch. 294, §§ 2-5; 1999, ch. 520, § 41; 2000, ch. 990, §§ 1, 3; 2001, ch. 192, §§ 9, 10; 2001, ch. 246, § 1; 2003, ch. 359, § 2; 2004, ch. 433, § 1; 2004, ch. 962, §§ 1, 2, 5, 13, 24, 46; 2005, ch. 7, § 1; 2005, ch. 107, §§ 1, 2; 2005, ch. 188, § 1; 2006, ch. 902, § 1; 2007, ch. 300, § 1; 2007, ch. 522, § 1; 2007, ch. 543, § 1; 2008, ch. 835, § 1; 2008, ch. 1025, § 2; 2009, ch. 486, § 1; 2010, ch. 792, § 1; 2010, ch. 858, § 1; 2011, ch. 416, § 7; 2012, ch. 1100, § 3.

Code Commission Notes.

The former last two sentences of subdivision (d)(6), concerning requiring the rules to take effect July 1, 2005, with the authority to use public necessity rules or emergency rules if necessary, were deleted as obsolete by the code commission in 2008.

Former subdivisions (i)(3)-(5), concerning the deadlines for filing proposed rules, commenting on the proposed rules, recommendations for appropriate legislation, holding public hearings and the effective date of the rules, were deleted as obsolete by the code commission in 2008.

Compiler's Notes. Acts 2000, ch. 990, § 3 provided that the provisions of the act shall not apply to workers' compensation self-insurer pools established pursuant to § 50-6-405(c)(1).

Acts 2004, ch. 433, § 1 provided that the provisions of subdivision (a)(4)(B) shall be repealed on June 30, 2005. Acts 2005, ch. 107, § 1 repealed the provisions of ch. 433, effective May 4, 2005.

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2004, ch. 962, § 51 provided, in part, that §§ 5 and 13 of the act shall apply to accidents or injuries occurring on or after July 1, 2004. Acts 2004, ch. 962, § 51 provided, in part, that § 24 of the act shall apply to accidents or injuries occurring on or after July 1, 2005.

Acts 2010, ch. 792, § 3 provided that the act, which deleted subdivisions (i)(4)(B)-(D), effective January 1, 2011, shall only apply to workers' compensation medical provider payments made, and an EOR or EOP issued, on or after January 1, 2011.

Acts 2011, ch. 416, § 10 provided that §§ 3-9 of the act, which amended §§ 50-6-102(12), 50-6-204(a)(1) and (2), 50-6-206(a)(2) and (b)  and 50-6-301, shall apply to injuries occurring on or after June 6, 2011.

Acts 2012, ch. 1100, § 5 provided that the act, which added subsection (j), shall apply to pain management, including the prescription of Schedule II, III, or IV controlled substances, prescribed on or after July 1, 2012.

The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

Cross-References. Confidentiality of public records, § 10-7-504.

Deponents exempt from subpoena to trial but subject to subpoena to deposition, § 24-9-101.

Depositions by physicians, § 50-6-235.

Discontinuance or change in temporary disability benefits by employer, resumption or increase of benefits, § 50-6-234.

Period and maximum amount of compensation, § 50-6-205.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 16; 26 Tenn. Juris., Workers' Compensation, §§ 30, 38.

Law Reviews.

A package of problems: A suspicious package can raise more than fears of anthrax. It could also present a potential liability for an employer. (James K. Simms IV), 38 No. 2 Tenn. B.J. 12 (2002).

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

Attorney General Opinions. Physical and occupational therapy reimbursements under the medical fee schedule, OAG 05-171 (12/6/05).

T.C.A. § 50-6-204(a)(1) does not require that a workers’ compensation patient's attending physician see him or her on every visit to the physician's office, OAG 06-126 (8/4/06).

NOTES TO DECISIONS

1. Constitutionality.

This statute is not unconstitutional because of the requirement of submission to an examination and acceptance of medical service and denial of right to compensation so long as employee refuses. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

2. Scope.

This section and § 50-6-225 only cover controversies between employer and employee and not suit by a physician against an employer to recover for services to injured employee under contract therefor. Knox Stove Works v. Hodge, 154 Tenn. 187, 289 S.W. 505, 1926 Tenn. LEXIS 115 (1926).

Where medical expenses sought to be recovered were incurred in the initial diagnosis of an employee's compensable occupational disease, they are recoverable even though paid or owing to a physician not designated by the employer, but once the employee learns that he is afflicted with an occupational disease, he is under a duty to consult with his employer. Bishop v. United States Steel Corp., 593 S.W.2d 920, 1980 Tenn. LEXIS 400 (Tenn. 1980).

The Workers' Compensation Act, T.C.A. § 50-6-201 et seq., does not require an employee to be disabled in order to qualify for medical treatment benefits. Ingram v. Aetna Cas. & Sur. Co., 876 S.W.2d 91, 1994 Tenn. LEXIS 92 (Tenn. 1994), rehearing denied, Ingram v. Aetna Casualty & Sur. Co., 876 S.W.2d 91, 1994 Tenn. LEXIS 137 (Tenn. 1994).

3. Construction.

Requirement of submission to examination by this section must be strictly construed so as to impose upon employee no further obligation than is expressly required, it being contrary to the common law. Helfenberger v. Harriman N. R. Co., 156 Tenn. 14, 299 S.W. 793, 1927 Tenn. LEXIS 81 (1927), overruled, Stubblefield v. Hot Mix Paving Co., 215 Tenn. 16, 383 S.W.2d 44, 1964 Tenn. LEXIS 536 (1964).

Employee's acceptance of temporary medical aid, required by this section as condition precedent to proceeding under statute, is not an election to take under this statute so as to preclude him from later suing third party primarily responsible for the injury unless such was his manifest intention. Nashville v. Latham, 160 Tenn. 581, 28 S.W.2d 46, 1929 Tenn. LEXIS 136 (1930).

The provision for apportionment in this section merely protects the parties furnishing such service to the extent of prorating the fund, but does not give an insurer paying such expenses a subrogation right against a third party tort-feasor for amounts paid under a policy endorsement in excess of such amount. United States Fidelity & Guaranty Co. v. Elam, 198 Tenn. 194, 278 S.W.2d 693, 1955 Tenn. LEXIS 363 (1955).

T.C.A. § 50-6-204(a)(1) requires the employer to furnish free of charge to the employee reasonable and necessary medical treatment; the section does not require the employer to pay the cost of medical treatment to the employee unless the employee has personally incurred medical expenses. State Auto. Mut. Ins. Co. v. Hurley, 31 S.W.3d 562, 2000 Tenn. LEXIS 698 (Tenn. 2000), aff'd, 2000 Tenn. LEXIS 691 (Tenn. Dec. 7, 2000).

The collateral source rule, which permits a plaintiff to recover the total of medical expenses as an element of damages against the defendant without consideration of whether the medical expenses were paid by insurance, would conflict with T.C.A. § 50-6-204(a)(1) and would require legislative action to implement; there is no authority for the adoption of this rule in workers' compensation cases. State Auto. Mut. Ins. Co. v. Hurley, 31 S.W.3d 562, 2000 Tenn. LEXIS 698 (Tenn. 2000), aff'd, 2000 Tenn. LEXIS 691 (Tenn. Dec. 7, 2000).

“Nursing services” in the workers' compensation statute referred to the services of a professional nurse in the care of a patient; a mother, providing full time care for her daughter who was injured at work, was not a professional nurse, and thus, she was not entitled to compensation. Sullivan v. Edwards Oil Co., 141 S.W.3d 544, 2004 Tenn. LEXIS 653 (Tenn. 2004).

Meaning of “nursing services” in T.C.A. § 50-6-204 is clear; nursing services are those services provided by a professional nurse in the care of a patient. In the context of the workers' compensation statute, which lists medical treatment and equipment that employers must provide to injured employees, the supreme court of Tennessee must presume that the legislature intended “nursing services” to mean the services of a person whom the medical profession recognizes as a nurse. Sullivan v. Edwards Oil Co., 141 S.W.3d 544, 2004 Tenn. LEXIS 653 (Tenn. 2004).

In determining the extent of an employee's vocational disability, courts should use medical impairment ratings calculated under the edition of the American Medial Association (AMA) Guidelines in effect at the time the employee reaches maximum medical improvement. The rule adopted best achieves the goal of uniformity and fairness to all parties. Jefferies v. McKee Foods Corp., 145 S.W.3d 551, 2004 Tenn. LEXIS 658 (Tenn. 2004).

Because the workers'  compensation statutes do not expressly indicate otherwise, the workers'  compensation specialist process does not do away with a party's right to seek judicial relief, and if a party chooses to utilize the permissive administrative specialist process, that decision does not preclude further judicial review; in the event that the post-settlement/post-judgment administrative process fails to produce a resolution acceptable to both parties, the workers'  compensation statutes give an aggrieved party the right to initiate an action in the court with workers'  compensation jurisdiction to enforce the settlement. C.H. Guenther & Son, Inc. v. Head, — S.W.3d —, 2012 Tenn. App. LEXIS 852 (Tenn. Ct. App. Dec. 10, 2012).

4. —With Other Provisions.

Although the general assembly has provided that medical reports prepared by physicians furnishing medical treatment to claimants shall follow certain approved guides for evaluations of permanent impairment, under T.C.A. § 50-6-204, in prescribing this requirement, the general assembly had no intention of repealing all of the schedules contained in § 50-6-207. The mere fact that a medical impairment rating to a particular member may translate, for purposes of these guides, into a disability rating to the body as a whole does not alter the rule that if an injury is to a scheduled member only, the statutory schedules must control the disability award. Reagan v. Tennessee Municipal League, 751 S.W.2d 842, 1988 Tenn. LEXIS 109 (Tenn. 1988).

5. Construction of Insurance Policy.

Where hospital benefit policy contained exclusion clause as to any injuries for which the insured “receives any award or settlement in any proceeding under the Workers' Compensation Laws” it was not liable for injuries for which insured received workers' compensation payments although the amount allowed under the Workers' Compensation Law did not cover all hospital and medical expenses. Slomovic v. Tennessee Hospital Service Asso., 46 Tenn. App. 705, 333 S.W.2d 564, 1959 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1959).

6. Jurisdiction.

If the employee sues for value of medical services that he procured for himself, jurisdiction of such suit would be as stated in § 50-6-225. Knox Stove Works v. Hodge, 154 Tenn. 187, 289 S.W. 505, 1926 Tenn. LEXIS 115 (1926).

In a suit by physician to collect under a contract with an employer, for services rendered an injured employee, there is no controversy between employer and employee, and jurisdiction of such suit lies in same tribunals that have jurisdiction of a suit for like amount upon any other contract. Knox Stove Works v. Hodge, 154 Tenn. 187, 289 S.W. 505, 1926 Tenn. LEXIS 115 (1926).

7. Presumption of Knowledge of Statute.

A physician who was notified by the employer's insurer that in treatment of an injured employee he was to be governed by the provisions of the Workers' Compensation Law will be presumed to know the provisions of the law. Brandon v. Kentucky-Tennessee Light & Power Co., 173 Tenn. 258, 116 S.W.2d 1029, 1938 Tenn. LEXIS 15 (1938).

Where evidence supported finding of chancellor that second injury was aggravation of previous injury occurring over a year previously and payments for the aggravated injury were made within the period of limitation, chancellor did not err in permitting employee to seek relief on the earlier injury where employer brought suit to settle dispute on second injury. Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124, 1966 Tenn. LEXIS 559 (1966).

8. Unauthorized Treatment.

Unauthorized hazardous injection by wife was intervening cause, and resulting partial amputation of employee's arm was not a natural consequence of original compensable injury to the employee's back. Guill v. Aetna Life & Casualty Co., 660 S.W.2d 42, 1983 Tenn. LEXIS 736 (Tenn. 1983).

Employer was not obligated to pay for medical care provided to employee by a nondesignated physician where employee did not notify employer of dissatisfaction with the designated physician, even though employer did not furnish employee with a list of three designated physicians to choose from for medical treatment of work-related injuries. Dorris v. INA Ins. Co., 764 S.W.2d 538, 1989 Tenn. LEXIS 13 (Tenn. 1989).

9. Refusal of Services.

Finding of the trial court that an employee's incapacity from a broken leg did not result from his willful misconduct and refusal to follow the advice of physicians was supported by the evidence. Fred Cantrell Co. v. Goosie, 148 Tenn. 282, 255 S.W. 360, 1923 Tenn. LEXIS 17 (1923); Kingsport Silk Mills v. Cox, 161 Tenn. 470, 33 S.W.2d 90, 1930 Tenn. LEXIS 31 (1930).

Employer's refusal to pay on ground that the injured employee would not submit to surgical operation was not justified under the evidence. DuPont Rayon Co. v. Bryant, 160 Tenn. 362, 24 S.W.2d 893, 1929 Tenn. LEXIS 114 (1930).

An employee who refuses to accept medical service cannot recover, nor may his dependents. Hughes v. Elliott, 162 Tenn. 188, 35 S.W.2d 387, 1930 Tenn. LEXIS 78 (1931).

Refusal of claimant to submit to myelogram was not ground for denying compensation where purpose of such examination was to determine necessity of operation for ruptured intervertebral disc and claimant stated positively that she would not undergo such operation. Tatum v. Palmer, 207 Tenn. 456, 340 S.W.2d 914, 1960 Tenn. LEXIS 479 (1960).

So long as employee unjustifiably refuses to accept reasonable treatment offered by the employer, his right to compensation is suspended. Hughes v. All Weather Insulation Co., 216 Tenn. 722, 394 S.W.2d 638, 1965 Tenn. LEXIS 617 (1965).

Where employee's refusal to submit to surgery was reasonable, his benefits were not terminated on the basis of the refusal. Mazanec v. Aetna Ins. Co., 491 S.W.2d 616, 1973 Tenn. LEXIS 425 (Tenn. 1973).

Plaintiff did not “abandon the medical care” which was provided her when she returned to the chiropractor for continued chiropractic treatment that was expressly authorized by the employer. Carter v. Shoney's, Inc., 845 S.W.2d 740, 1992 Tenn. LEXIS 710 (Tenn. Special Workers' Comp. App. Panel 1992).

10. —Effect of Employer's Actions.

Employer was not justified in stopping compensation payments on the ground that employee had refused medical services furnished by employer where employer failed to comply with the provisions of this section in that the medical payments were not furnished or offered until expiration of the period during which the statute required such services to be furnished. Pee Wee Coal Co. v. Hensley, 196 Tenn. 498, 268 S.W.2d 367, 1954 Tenn. LEXIS 412 (1954).

11. Court Order to Undergo Medical Treatment.

Where injured worker's 100 percent disability to the right arm was due to lymphedema for which there was no corrective medical procedure, there was no reasonable basis for the chancellor to order the worker to undergo further medical treatment. Emerson Electric Co. v. Forrest, 536 S.W.2d 343, 1976 Tenn. LEXIS 629 (Tenn. 1976).

12. “Suspended” — Meaning.

The provision of this section that the right of an injured employee shall be “suspended” for failure to comply with the provisions of this section relating to examination or acceptance of medical service means that such compensation shall be held in abeyance, not terminated. Blevins v. Pearson Hardwood Flooring Co., 176 Tenn. 606, 144 S.W.2d 781, 1940 Tenn. LEXIS 107 (1940).

13. Right to Choose Medical Care and Services.

The provisions of this section that the employer “shall” furnish and “provide” medical care and services indicate that it is the intent of the statute that the employer in the first instance has the right to choose such services, and an employee who declines the services tendered without good reason cannot recover for medical services incurred by him. Irwin v. Fulton Sylphon Co., 179 Tenn. 346, 166 S.W.2d 610, 1942 Tenn. LEXIS 29 (1942).

When an employee accepted an operation for hernia tendered by the employer at a hospital patronized by the insurer but refused without reasonable cause to accept the surgeon selected by the employer, the employee was entitled to recover the amount of the hospital bill in a suit against the employer and was entitled to compensation for the eight weeks rest ordinarily required for such an operation but was not entitled to recover the amount of the surgeon's bill. Irwin v. Fulton Sylphon Co., 179 Tenn. 346, 166 S.W.2d 610, 1942 Tenn. LEXIS 29 (1942).

Employee who reported hernia accident to employer and then went to hospital for operation and engaged a surgeon of his choice without consulting his employer in the choice was entitled to recover reasonable surgeon's fee. Stone & Webster Engineering Corp. v. Davis, 191 Tenn. 42, 231 S.W.2d 376, 1950 Tenn. LEXIS 543 (1950).

Where employer failed to provide three doctors from which employee could select and the doctor who was provided was not competent to make an exploratory examination of an injury of the nature which employee suffered nor to perform the necessary operation to correct such injury, employee was justified in choosing a doctor of his own and employer was liable within the statutory amount for reasonable medical expenses for treatment of employee by doctor selected by employee. Atlas Powder Co. v. Grimes, 200 Tenn. 206, 292 S.W.2d 13, 1956 Tenn. LEXIS 397 (1956).

The employer has the right in the first instance to select the doctor or physician. Atlas Powder Co. v. Grant, 200 Tenn. 617, 293 S.W.2d 180, 1956 Tenn. LEXIS 446 (1956).

Where employee was directed to report to a certain doctor but was not given choice of three doctors and employee subsequently left such doctor and went to another physician without consulting or notifying employer, circumstances of case were not such as to preclude recovery of medical expenses by employee. Holston Valley Community Hospital v. Dykes, 205 Tenn. 336, 326 S.W.2d 486, 1959 Tenn. LEXIS 369 (1959).

Employee who accepted medical services provided by insurance carrier was not entitled to recover for treatment by chiropractor of his own choice. Manley v. Jefferson City, 207 Tenn. 648, 343 S.W.2d 358, 1960 Tenn. LEXIS 504 (1960).

Statute commenced to run from date of last voluntary payment of medical bill and not from date of last treatment of employee by doctor. Chandler v. Travelers Ins. Co., 212 Tenn. 199, 369 S.W.2d 390, 1963 Tenn. LEXIS 413 (1963).

The question of whether an employee who has exhausted the medical services offered by his employer is entitled to incur further medical services without consulting his employer depends upon the circumstances of the particular case. Rice Bottling Co. v. Humphreys, 213 Tenn. 8, 372 S.W.2d 170, 1963 Tenn. LEXIS 462 (1963).

Employee had duty to consult with at least one of the three physicians designated by employer and thereafter if unsatisfied with the physician's findings could (1) move the court to appoint a neutral physician whose expenses would be borne equally by the parties, (2) consult with his employer and make other arrangements suitable to both parties, or (3) go to a physician of his own choosing without consulting his employer and thus be liable for such services. Consolidation Coal Co. v. Pride, 224 Tenn. 188, 452 S.W.2d 349, 1970 Tenn. LEXIS 313 (1970).

Employer is liable for services of physician making initial examination of employee at instance of employer. Consolidation Coal Co. v. Pride, 224 Tenn. 188, 452 S.W.2d 349, 1970 Tenn. LEXIS 313 (1970).

The intent of this section is for the employee to consult his employer before incurring the expenses called for by the statute if the employee expects the employer to pay for them. Tom Still Transfer Co. v. Way, 482 S.W.2d 775, 1972 Tenn. LEXIS 358 (Tenn. 1972).

Referring the employee to a single physician does not comply with the statute and is a usurpation of the privilege of the employee to choose the ultimate treating physician. Employers Ins. of Wausau v. Carter, 522 S.W.2d 174, 1975 Tenn. LEXIS 722 (Tenn. 1975); Burlington Indus., Inc. v. Clark, 571 S.W.2d 816, 1978 Tenn. LEXIS 648 (Tenn. 1978); Bond v. American Air Filter, 692 S.W.2d 638, 1985 Tenn. LEXIS 530 (Tenn. 1985).

Where employee was sent to the company doctor upon reporting her injury and was not furnished with panel of three physicians, and employer refused reference to another physician when employee reported dissatisfaction with such physician, employee was entitled to seek services of her family doctor and neurosurgeon to whom he referred her and employer was obligated to pay for such services. Employers Ins. of Wausau v. Carter, 522 S.W.2d 174, 1975 Tenn. LEXIS 722 (Tenn. 1975).

The employer was liable for medical expenses of the employee where the employee acted reasonably in seeking medical treatment of her own choice since the employer failed to tender to her a panel of three physicians from which to choose one, but instead referred her to a single company doctor, who, after examination, dismissed her and directed her to return to work. Forest Products, Div. of Ludlow Corp. v. Collins, 534 S.W.2d 306, 1976 Tenn. LEXIS 594 (Tenn. 1976).

Where employer gave employee a list of three physicians from which employee was to choose, but one physician refused to examine employee and another died soon after the designation, the employee was in effect referred to a single physician and therefore the employer did not comply with T.C.A. § 50-6-204. Goodman v. Oliver Springs Mining Co., 595 S.W.2d 805, 1980 Tenn. LEXIS 424 (Tenn. 1980).

An employer who denies all liability for an accident and injury claimed by an employee is in no position to insist upon the statutory provisions respecting the choosing of physicians. CNA Ins. Co. v. Transou, 614 S.W.2d 335, 1981 Tenn. LEXIS 420 (Tenn. 1981).

The violation of the requirements of T.C.A. § 50-6-204 by an employer does not give the employee the right in every case to select a physician without consultation with the employer, nor does the statutory violation automatically make the employer liable for medical expenses incurred by the employee on his own. Pickett v. Chattanooga Convalescent & Nursing Home, Inc., 627 S.W.2d 941, 1982 Tenn. LEXIS 383 (Tenn. 1982).

Court erred in limiting the plaintiff's access to medical services and prescription drugs provided by the physicians approved by the employer and workers' compensation carrier, because the employee should not bear the burden of establishing the necessity of medical treatment or the reasonableness of medical charges when the employer has designated the physician or the employer's designate refers the claimant to other specialists. Lindsey v. Strohs Cos., 830 S.W.2d 899, 1992 Tenn. LEXIS 222 (Tenn. 1992), rehearing denied, — S.W.2d —, 1992 Tenn. LEXIS 325 (Tenn. May 4, 1992), rehearing denied, — S.W.2d —, 1992 Tenn. LEXIS 462 (Tenn. July 6, 1992), cert. denied, Lindsey v. Stroh's Cos., 506 U.S. 855, 113 S. Ct. 163, 121 L. Ed. 2d 112, 1992 U.S. LEXIS 5178 (1992).

An employer was liable for the continuing medical care of an employee by doctors chosen by the employee where the employer had not provided a list of doctors as required by T.C.A. § 50-6-204. Lambert v. Famous Hospitality, 947 S.W.2d 852, 1997 Tenn. LEXIS 308 (Tenn. 1997).

14. —Employee's Physician.

Employee was justified in engaging his own physician without consulting his employer where employee was not aware that he had sustained an occupational disease or injury and where court approved the payment of such physician and such judgment was not appealed, and such employee was entitled to retain the same physician for future treatment and entitled to payment of the expenses. Goodman v. Oliver Springs Mining Co., 595 S.W.2d 805, 1980 Tenn. LEXIS 424 (Tenn. 1980).

Employee was justified in seeking medical care of his own choosing, and employer and his insurer were liable for payment of reasonable and necessary medical expenses, where employer's physician did not understand problem employee was having and had no further treatment to offer, and where employer and insurer failed to designate three physicians from which employee could choose a treating physician. United States Fidelity & Guaranty Co. v. Morgan, 795 S.W.2d 653, 1990 Tenn. LEXIS 279 (Tenn. 1990), cert. denied, Groseclose v. Tennessee, 503 U.S. 1006, 112 S. Ct. 1765, 118 L. Ed. 2d 426, 1992 U.S. LEXIS 2674 (1992).

Employee “justifiably engaged” physician without consulting her employer because at the time she first saw him she was not aware that she had sustained a work injury. Clarendon v. Baptist Memorial Hosp., 796 S.W.2d 685, 1990 Tenn. LEXIS 322 (Tenn. 1990).

15. —Chiropractic Treatment.

If the trial judge finds chiropractic expenses to be reasonable and necessary, these may be properly allowed as medical expenses. T.C.A. § 50-6-204(a)(4) expressly permits the inclusion of doctors of chiropractic in the list of physicians or surgeons to be designated by the employer and utilized by the employee. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 1987 Tenn. LEXIS 930 (Tenn. 1987).

Where continued chiropractic treatments were necessary, and the employee engaged new or different healthcare providers, notice and hearing were necessary; however, in instances where the post-judgment treatment was by the same healthcare provider, prior notice and hearing were not necessarily required. Carter v. Shoney's, Inc., 845 S.W.2d 740, 1992 Tenn. LEXIS 710 (Tenn. Special Workers' Comp. App. Panel 1992).

16. —Disfigurement — Reconstructive Surgery.

The fact that an employee has sustained no vocational impairment as a result of disfigurement is irrelevant for purposes of obtaining treatment under T.C.A. § 50-6-204. Wilkes v. Resource Auth., 932 S.W.2d 458, 1996 Tenn. LEXIS 591 (Tenn. 1996).

When reconstructive surgery or other treatment will be reasonably effective in improving the permanent disfigurement resulting from a work-related injury, such surgery or other treatment is “reasonably required” under T.C.A. § 50-6-204; this is true even in the absence of vocational impairment that would otherwise entitle the employee to permanent partial or permanent total disability. Wilkes v. Resource Auth., 932 S.W.2d 458, 1996 Tenn. LEXIS 591 (Tenn. 1996).

17. Employer's Liability for Medical Services.

An employer incurring, voluntarily and for humane reasons, an expense of over the amount required by this statute, in giving surgical and medical attention to his injured employee, is not entitled to a credit for amount in excess of such amount. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

This section does not limit a recovery by a hospital as against an employer who contracts for treatment of an injured employee. Weakley County Hospital v. Kentucky-Tennessee Light & Power Co., 171 Tenn. 662, 107 S.W.2d 226, 1937 Tenn. LEXIS 148 (1937).

Where injured employee in an unconscious condition was taken to hospital by one of the employer's officials and where such official instructed the superintendent of the hospital to admit such employee and to procure a certain doctor to attend him, the employer was liable for the entire amount of the hospital bill and the amount of the recovery was not limited to the maximum provided in this section. Weakley County Hospital v. Kentucky-Tennessee Light & Power Co., 171 Tenn. 662, 107 S.W.2d 226, 1937 Tenn. LEXIS 148 (1937).

Where a physician was notified by the employer's insurer a few days after he undertook the treatment of an injured employee that he would be governed by the provisions of the Workers' Compensation Law, such physician was limited in recovery to the amount provided by this section for medical care notwithstanding the fact that an official of the employer company promised “that they would work the bill out some way.” Brandon v. Kentucky-Tennessee Light & Power Co., 173 Tenn. 258, 116 S.W.2d 1029, 1938 Tenn. LEXIS 15 (1938).

Where there was no showing by petitioner as to how much of his doctor's bill was incurred within the period then provided by this section for furnishing of medical care and where his hospital expenses were incurred at a later date, the trial court properly refused to allow petitioner anything for medical and hospital services. P. H. Reynolds & Co. v. McKnight, 177 Tenn. 228, 148 S.W.2d 357, 1940 Tenn. LEXIS 31 (1941).

Employee was not entitled to recover medical expenses in excess of statutory amount for medical and hospital expenses furnished employee at instance of employer where it was not contended that employee had not received services tendered, nor that any demand had been made on him for the payment thereof nor that he was put to any expense on account thereof. Plumlee v. Maryland Casualty Co., 184 Tenn. 497, 201 S.W.2d 664, 1947 Tenn. LEXIS 402 (1947).

Where employer contracted to pay extra medical bills in order to lessen its responsibility to injured worker under Workers' Compensation Law, employer is not entitled to credit for extra amount. Tibbals Flooring Co. v. Brewster, 196 Tenn. 684, 270 S.W.2d 323, 1954 Tenn. LEXIS 439 (1954).

Where employer paid part of hospital and medical bills incurred by employee as result of compensable injuries, employee was only entitled to judgment for the difference between the bill and the amount paid by the employer and not for the entire amount. Bituminous Casualty Corp. v. Smith, 200 Tenn. 13, 288 S.W.2d 913, 1956 Tenn. LEXIS 372 (1956).

Where employee was treated for three or four months by physicians of employer but still suffered pain, and, acting in good faith, sought the services of an independent physician who performed an operation which was not entirely successful, employer was liable for such expenses incurred by the employee. Atlas Powder Co. v. Grant, 200 Tenn. 617, 293 S.W.2d 180, 1956 Tenn. LEXIS 446 (1956).

Where months after doctors and services furnished by employer had ended, employee, without consulting his employer, incurred additional medical expenses, the employer was not required to pay therefor. Procter & Gamble Defense Corp. v. West, 203 Tenn. 138, 310 S.W.2d 175, 1958 Tenn. LEXIS 284 (1958).

Provision that employer is only liable for medical services for period of one year was to be strictly construed and employer who elected to deny all responsibility would not thereafter be permitted to escape obligation to pay such expenses. Paristyle Beauty Salon, Inc. v. Chandler, 207 Tenn. 587, 341 S.W.2d 731, 1960 Tenn. LEXIS 497 (1960).

Court could not make award for hernia operation prior to time operation took place. Paristyle Beauty Salon, Inc. v. Chandler, 207 Tenn. 587, 341 S.W.2d 731, 1960 Tenn. LEXIS 497 (1960); Laughlin Clinic, Inc. v. Henley, 208 Tenn. 252, 345 S.W.2d 675, 1961 Tenn. LEXIS 418 (1961).

Where employee was told by plant doctor to come back in two or three days but instead employed a chiropractor of his own choice, employee was not entitled to recover medical expenses for treatment by the chiropractor. Ward v. North American Rayon Corp., 211 Tenn. 535, 366 S.W.2d 134, 1963 Tenn. LEXIS 378 (1963).

Where employee exhibited doctor bills, hospital bills and drug bills incurred by him within one year following the accident in the amount of more than $2,000 and additional expenses were incurred more than one year after the accident, allowance of the maximum of $1,800 was justified. American Surety Co. v. Kizer, 212 Tenn. 328, 369 S.W.2d 736, 1963 Tenn. LEXIS 426 (1963).

While it is not stated in the statute that the employer must offer the operation to the employee, it is reasonable to expect that the employee should be informed of the necessity for and/or offer of the operation and the employer or his carrier must furnish the cost thereof. Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124, 1966 Tenn. LEXIS 559 (1966).

Where an employer is given notice that medical attention is necessary and that the employee intends to seek compensation for the same and the employer knows that a certain physician is rendering the same and fails to object or tender the three physicians required by this section, the employee will not be denied recovery for medical and hospital expenses incurred. Smith v. Norris, 218 Tenn. 329, 403 S.W.2d 307, 1966 Tenn. LEXIS 571 (1966).

A claimant, who gave notice of disability within 30 days after learning that he was suffering from an occupational disease, and commenced his action within one year after the cause of action accrued, is entitled to recover medical expenses incurred in the diagnoses and treatment of his disease. Wormsley v. Consolidation Coal Co., 408 F.2d 79, 1969 U.S. App. LEXIS 13447 (6th Cir. Tenn. 1969).

Employer was not liable for charges of specialist in neurology and psychiatry who was engaged by employee's solicitor without consulting employer to examine employee who suffered injuries in fall. Moyers v. Oman Constr. Co., 223 Tenn. 449, 446 S.W.2d 684, 1969 Tenn. LEXIS 431 (1969).

Where, after notice of injury, medical treatment was not furnished by employer as required by the statute, employer was liable for cost of reasonable necessary medical care which employee obtained for herself. Thomas v. State, 225 Tenn. 71, 463 S.W.2d 687, 1971 Tenn. LEXIS 278 (1971).

Employee suffering from occupational disease of pneumoconiosis or silicosis was entitled to recover for medical expenses incurred in diagnosis of his condition even though physician making diagnosis had not been designated by employer. Consolidation Coal Co. v. Brown, 225 Tenn. 572, 474 S.W.2d 416, 1971 Tenn. LEXIS 327 (1971).

Where employer's manager accompanied employee to hospital when injury first occurred and employee subsequently returned to hospital for further treatment, and where employer received no notice of employee's subsequent dissatisfaction or of his being admitted to an independent clinic or of his being treated by a chiropractor, employer was not liable for bill of the independent clinic or of the chiropractor. Tom Still Transfer Co. v. Way, 482 S.W.2d 775, 1972 Tenn. LEXIS 358 (Tenn. 1972).

It was not error for the court to allow recovery for the plaintiff of all medical expenses incurred, as this section provides that the employer shall furnish to the employee such medical and surgical treatment ordered by the attending physician as may be reasonably required. New Jersey Zinc Co. v. Cole, 532 S.W.2d 246, 1975 Tenn. LEXIS 610 (Tenn. 1975), rehearing denied, N.J. Zinc Co. v. Cole, — S.W.2d —, 1975 Tenn. LEXIS 731 (Tenn. Dec. 22, 1975).

Where injured worker, who had a permanent disability of 100 percent to his right arm, incurred medical expenses without ever having expressed dissatisfaction with medical treatment furnished by employer and without prior consultation with or authorization by employer, the chancellor erred in ordering employer to pay the controverted medical expenses. Emerson Electric Co. v. Forrest, 536 S.W.2d 343, 1976 Tenn. LEXIS 629 (Tenn. 1976).

The employer may, by express or implied contract with the physician or hospital, become obligated to pay for medical treatment of an employee beyond the requirements of the statute. Universal Underwriters Ins. Co. v. A. J. King Lumber Co., 553 S.W.2d 749, 1977 Tenn. LEXIS 591 (Tenn. 1977).

This section does not require that medical treatment be “ordered” before the employer shall be liable for furnishing the same so long as the proposed treatment is reasonably required. P. R. Mallory & Co. v. Ramsey, 566 S.W.2d 859, 1978 Tenn. LEXIS 562 (Tenn. 1978).

Whether an employee is justified in seeking additional medical services to be paid by the employer without consulting him depends upon the circumstances of each case. Harris v. Kroger Co., 567 S.W.2d 161, 1978 Tenn. LEXIS 599 (Tenn. 1978); Bazner v. American States Ins. Co., 820 S.W.2d 742, 1991 Tenn. LEXIS 462 (Tenn. 1991).

Where an employee incurred medical expenses without expressing any dissatisfaction with the treatment her employer had already provided, and without consulting her employer or asking its authorization, she showed no reasonable excuse for her failure to consult with her employer and was not entitled to reimbursement for the additional medical treatment. Harris v. Kroger Co., 567 S.W.2d 161, 1978 Tenn. LEXIS 599 (Tenn. 1978).

Where employer expressly acknowledged that it had no company doctor and where it expressly authorized plaintiff to select his own physician, the company and its insurer were liable for the medical treatment provided and recommended by the doctor selected by plaintiff to the same extent as if the company had selected him. State Auto. Mut. Ins. Co. v. Cupples, 567 S.W.2d 164, 1978 Tenn. LEXIS 600 (Tenn. 1978).

The liability of an employer for violation of this section turns on the issue of whether, under the circumstances, the employee was justified in obtaining further medical service, without first consulting the employer. Pickett v. Chattanooga Convalescent & Nursing Home, Inc., 627 S.W.2d 941, 1982 Tenn. LEXIS 383 (Tenn. 1982).

Violation of this section does leave the employer open to the risk of having to pay for medical treatment by physicians chosen by the employee. Pickett v. Chattanooga Convalescent & Nursing Home, Inc., 627 S.W.2d 941, 1982 Tenn. LEXIS 383 (Tenn. 1982).

The employer must be given an opportunity to provide for the treatment each time the employee reasonably requires additional treatment. Greenlee v. Care Inn of Jefferson City, 644 S.W.2d 679, 1983 Tenn. LEXIS 602 (Tenn. 1983); Bazner v. American States Ins. Co., 820 S.W.2d 742, 1991 Tenn. LEXIS 462 (Tenn. 1991).

Employer was not required to pay for services where employee failed to return to the designated physician but went to an undesignated physician without notifying the employer. Buchanan v. Mission Ins. Co., 713 S.W.2d 654, 1986 Tenn. LEXIS 768 (Tenn. 1986).

The cost of claimant's participation in a chronic pain program was a recoverable “medical” treatment. Wade v. Aetna Casualty & Surety Co., 735 S.W.2d 215, 1987 Tenn. LEXIS 932 (Tenn. 1987).

Where causation is clearly shown, the employer is required to furnish the employee such medical treatment and medicine as may be reasonably required as a result of the accident. Bolivar v. Jarrett, 751 S.W.2d 137, 1988 Tenn. LEXIS 104 (Tenn. 1988).

Employee is entitled, by T.C.A. § 50-6-204, to recover any reasonable and necessary future medical expenses incurred as a result of a compensable injury. Underwood v. Liberty Mut. Ins. Co., 782 S.W.2d 175, 1989 Tenn. LEXIS 542 (Tenn. 1989); Bazner v. American States Ins. Co., 820 S.W.2d 742, 1991 Tenn. LEXIS 462 (Tenn. 1991).

Employee is entitled under the provisions of T.C.A. § 50-6-204 to recover any reasonable and necessary medical expenses in the future which may be incurred as a result of a compensable injury, and it was premature for the trial judge to limit or deny those benefits at the time of trial. Roark v. Liberty Mut. Ins. Co., 793 S.W.2d 932, 1990 Tenn. LEXIS 283 (Tenn. 1990).

Any treatment ordered by physicians designated by the employer are presumed to be necessary and reasonable since the employer's choices should be such that the designees would order only those medical services that are necessary, and at costs that are reasonable. Clarendon v. Baptist Memorial Hosp., 796 S.W.2d 685, 1990 Tenn. LEXIS 322 (Tenn. 1990).

Death resulting from medical treatment (coronary bypass surgery incidental to removal of cancerous lung) was compensable as reasonably required for the treatment of employee's occupational disease, lung cancer, where proof showed that the employee presented himself at hospital emergency room with symptoms indicative of lung cancer, his physicians considered immediate removal of the lung necessary, and the bypass surgery was required in order to effect the removal of the lung. Rogers v. Shaw, 813 S.W.2d 397, 1991 Tenn. LEXIS 245 (Tenn. 1991).

Plaintiff's demand for post-judgment medical expenses was not cut off by the judgment in the original action which did not contain a provision for payment of future medical expenses. Bazner v. American States Ins. Co., 820 S.W.2d 742, 1991 Tenn. LEXIS 462 (Tenn. 1991).

Any application made for post-judgment medical expenses is to be made by petition in the original action in order that the records of all proceedings in the cause are before the trial judge to facilitate his determination that such an award may be justified. Bazner v. American States Ins. Co., 820 S.W.2d 742, 1991 Tenn. LEXIS 462 (Tenn. 1991).

Appellant who was exposed to asbestos insulation dust while working for employer, and as a result of this exposure was diagnosed as suffering from an asbestos related disease referred to as “benign asbestos pleural plaques,” was entitled to medical benefits furnished by the employer for the periodic evaluation of his pulmonary condition and any necessary subsequent treatment related to his occupational disease. Ingram v. Aetna Cas. & Sur. Co., 876 S.W.2d 91, 1994 Tenn. LEXIS 92 (Tenn. 1994), rehearing denied, Ingram v. Aetna Casualty & Sur. Co., 876 S.W.2d 91, 1994 Tenn. LEXIS 137 (Tenn. 1994).

An employee suffering from any manifestation of asbestos exposure is entitled to reimbursement for predisability medical expenses. Ingram v. Aetna Cas. & Sur. Co., 876 S.W.2d 91, 1994 Tenn. LEXIS 92 (Tenn. 1994), rehearing denied, Ingram v. Aetna Casualty & Sur. Co., 876 S.W.2d 91, 1994 Tenn. LEXIS 137 (Tenn. 1994).

An employee is entitled to medical treatment and expenses for work-related injuries even though the injury does not produce vocational impairment or otherwise affect the worker's employability. Stephens v. Henley's Supply & Indus., Inc., 2 S.W.3d 178, 1999 Tenn. LEXIS 425 (Tenn. 1999).

An employer who denies liability for a compensable injury is in no position to insist upon the statutory provisions respecting the choosing of physicians; therefore, where employee incurred reasonable and necessary medical expenses resulting from the repetitive use of the employee's hands at work, the employee was entitled to recover the medical expenses from employer. GAF Bldg. Materials v. George, 47 S.W.3d 430, 2001 Tenn. LEXIS 253 (Tenn. Special Workers' Comp. App. Panel 2001), aff'd, 2001 Tenn. LEXIS 252 (Tenn. Mar. 26, 2001).

Care by a certified nurse technician is compensable under the workers' compensation law irrespective of the relationship between a caregiver and employee. A nurse's aide, is a person whom the medical profession recognizes as a nurse. Long v. Mid-Tennessee Ford Truck Sales, Inc., 160 S.W.3d 504, 2005 Tenn. LEXIS 225 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 360 (Tenn. Apr. 18, 2005).

Trial court and special workers' compensation appeals panel erred by refusing an employee's claim for reimbursement for his wife's nursing care; “nursing services,” in T.C.A. § 50-6-204(a), included the care provided by the injured employee's spouse, who was a certified nurse technician, pursuant to what they understood to have been the treating physician's orders. There was no reason and no statutory basis to require a family to hire a stranger to provide compensable services when a family member was qualified to provide those services. Long v. Mid-Tennessee Ford Truck Sales, Inc., 160 S.W.3d 504, 2005 Tenn. LEXIS 225 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 360 (Tenn. Apr. 18, 2005).

Physician discharging a patient to home, knowing that the patient will be confined to a bed and unable to ambulate or perform other functions without assistance, and knowing that the patient will require care such as changing wound dressings or requiring other such attention, must certainly contemplate that nursing services will be required. The statute requires only that a physician “order” the services, not that the order be reduced to writing. Long v. Mid-Tennessee Ford Truck Sales, Inc., 160 S.W.3d 504, 2005 Tenn. LEXIS 225 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 360 (Tenn. Apr. 18, 2005).

Where the employee of a nursing home was injured in an automobile accident on the way to a training facility, the injury was covered under the workers'  compensation statute. Therefore, the employer is liable for all necessary and reasonable medical expenses under T.C.A. § 50-6-204(a)(1); the driver's insurance company was entitled to reimbursement from the employer for the medical payments made to the employee's medical providers. Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 2006 Tenn. LEXIS 301 (Tenn. 2006).

Because a claimant's mother's house could not be modified to accommodate the claimant's wheelchair, the court remanded to the trial court to determine two alternatives: (1) The availability and cost of wheelchair-accessible housing for the claimant only; and (2) The availability and cost of non-accessible housing capable of modification, and the cost of modification to make such housing wheelchair-accessible. The court reserved judgment on the question of whether the statutory phrase “other apparatus” as used in T.C.A. § 50-6-204(a)(1) could be construed to require the employer to pay for any of these alternatives until the trial court made its findings of fact. Dennis v. Erin Truckways, Ltd., 188 S.W.3d 578, 2006 Tenn. LEXIS 305 (Tenn. 2006).

Although the Tennessee Workers'  Compensation Law does not contemplate an employer paying for wheelchair-accessible housing in its entirety, the law does require the employer to pay for medically-necessary modifications to make existing housing wheelchair-accessible. Unlike the entire cost of housing itself, modifications such as ramps, grab bars, widened doorways, and accessible cabinets and appliances are within the definition of apparatus in T.C.A. § 50-6-204(a)(1) when such modifications are found to be medically necessary; if it is possible to modify the injured employee's existing home, then the employer shall bear the cost of all modifications deemed medically necessary. Dennis v. Erin Truckways, Ltd., 188 S.W.3d 578, 2006 Tenn. LEXIS 305 (Tenn. 2006).

Trial court did not err in sustaining the employer's hearsay objection to the widow's attempt to introduce into evidence correspondence her attorney received from representatives of medicare relating to the possible assertion of a lien for medical benefits provided to the deceased employee by medicare; upon remand, the parties could present evidence to the trial court concerning the amount of the medical expenses for which the employer was liable. Correll v. E.I. Dupont de Nemours & Co., 207 S.W.3d 751, 2006 Tenn. LEXIS 1001 (Tenn. 2006).

Trial court erred by failing to order the employer to pay for the employee's second spinal surgery because once the employee had justifiably engaged the surgeon, whose first spinal surgery successfully resolved the employee's incontinence and averted the possibility of paralysis where other physicians had not, the subsequent efforts by the employer to arrange for a different physician did not preclude the employee from continuing under the surgeon's care. Arnett v. McMinn County Gov't, — S.W.3d —, 2013 Tenn. LEXIS 596 (Tenn. July 9, 2013).

Trial court erred by failing to order the employer to pay for the employee's second spinal surgery because once the employee had justifiably engaged the surgeon, whose first spinal surgery successfully resolved the employee's incontinence and averted the possibility of paralysis where other physicians had not, the subsequent efforts by the employer to arrange for a different physician did not preclude the employee from continuing under the surgeon's care. Arnett v. McMinn County Gov't, — S.W.3d —, 2013 Tenn. LEXIS 596 (Tenn. July 9, 2013).

18. Employer's Liability for Medical Report or Deposition of Physician.

Employee was not entitled to reimbursement of amounts paid physician for medical report and giving a deposition even though she was otherwise entitled to reimbursement for his services. Employers Ins. of Wausau v. Carter, 522 S.W.2d 174, 1975 Tenn. LEXIS 722 (Tenn. 1975).

19. Operations.

Injured employee will be denied compensation for incapacity which may be removed or modified by an operation tendered him by the employer of a simple character not involving serious suffering or danger. Sun Coal Co. v. Wilson, 147 Tenn. 118, 245 S.W. 547, 1922 Tenn. LEXIS 25 (1922); Russell v. Virginia Bridge & Iron Co., 172 Tenn. 268, 111 S.W.2d 1027, 1937 Tenn. LEXIS 77 (1938).

The employer was within his rights in demanding that the claimant, suffering from hernia, should submit to an operation, where there was no evidence to show that he had a weak heart, or that the operation was dangerous, or that an operation would not likely remedy the injury, but the undisputed evidence was to the contrary, and the claimant was not entitled to recover compensation so long as he declined to submit to an operation. Sun Coal Co. v. Wilson, 147 Tenn. 118, 245 S.W. 547, 1922 Tenn. LEXIS 25 (1922).

A claimant was entitled to recover compensation from the date of the injury until the time he wrongfully refused to be operated upon. Sun Coal Co. v. Wilson, 147 Tenn. 118, 245 S.W. 547, 1922 Tenn. LEXIS 25 (1922).

A refusal to submit to an operation which would produce much pain and suffering and involve an appreciable risk of life is not unreasonable. Fred Cantrell Co. v. Goosie, 148 Tenn. 282, 255 S.W. 360, 1923 Tenn. LEXIS 17 (1923).

Where an operation is necessary and employee is in condition to undergo one, and it would in all probability be successful and the company tenders it to him and offers to defray all expenses, he must submit, though he is not required to have an operation at his own expense. Crane Enamelware Co. v. Dotson, 152 Tenn. 401, 277 S.W. 902, 1925 Tenn. LEXIS 83 (1925).

Claim that operation would greatly reduce petitioner's disability will not be upheld where physicians differ on the matter and no legal demand for an operation has been made by employer. Kingsport Silk Mills v. Cox, 161 Tenn. 470, 33 S.W.2d 90, 1930 Tenn. LEXIS 31 (1930).

The record on appeal not disclosing a demand that the employee submit to a further operation, nor an offer to meet the expense of same, the amount of award cannot be reduced on mere showing that such operation might reduce the extent of disability. International Harvester Co. v. Scott, 163 Tenn. 516, 43 S.W.2d 1065, 1931 Tenn. LEXIS 142 (1931).

An injured employee is under no duty to submit to an operation in order that the pecuniary obligation created in his favor against his employer may be minimized where such operation is attended with serious risk of life or member or where there is a difference of medical opinion as to the advisability and result of such operation. Russell v. Virginia Bridge & Iron Co., 172 Tenn. 268, 111 S.W.2d 1027, 1937 Tenn. LEXIS 77 (1938).

An injured employee could not be forced to submit to the amputation of a leg where there was a difference of medical opinion as to whether or not there was a possibility to save the crushed foot of such employee, and compensation payments to such employee could not be suspended for failure of the employee to undergo such amputation. Russell v. Virginia Bridge & Iron Co., 172 Tenn. 268, 111 S.W.2d 1027, 1937 Tenn. LEXIS 77 (1938).

Plaintiff, aged 62 and afflicted with smothering spells, tortuosity, enlargement of descending aorta, enlargement of liver, calcification in left lung, and arthritis was justified in refusing to take operation for double hernia. Parker v. Meda Corp., 91 F. Supp. 960, 1949 U.S. Dist. LEXIS 1824 (D. Tenn. 1949), aff'd, Mead Corp. v. Parker, 183 F.2d 952, 1950 U.S. App. LEXIS 3026 (6th Cir. Tenn. 1950).

Where employee who suffered herniated disc as result of accident arising out of and in course of employment was subsequently operated on for kidney stones, allowance of reasonable medical expenses for supervision and treatment of herniated disc during the period of the kidney ailment was proper where finding of the lower court supported by material evidence was to the effect that his disability was due to the herniated disc. Atlas Powder Co. v. Grimes, 200 Tenn. 206, 292 S.W.2d 13, 1956 Tenn. LEXIS 397 (1956).

An injured worker cannot be required to submit to a major operation in order to avoid suspension of payments. Edwards v. Travelers Ins. Co., 202 Tenn. 364, 304 S.W.2d 489, 1957 Tenn. LEXIS 401 (1957).

Injured worker could not be required to undergo surgery for a ruptured intervertebral disc as a condition to obtaining continued payments. Edwards v. Travelers Ins. Co., 202 Tenn. 364, 304 S.W.2d 489, 1957 Tenn. LEXIS 401 (1957).

In determining whether a claimant should be required to undergo an operation admitted to be a serious one, the viewpoint of the employee should be considered as well as that of attending surgeons, and, while the fear of the claimant is not controlling, it must be considered realistically where such fear is reasonably justified under the facts. Sullivan v. Green, 206 Tenn. 42, 331 S.W.2d 686, 1959 Tenn. LEXIS 422 (1959).

Plaintiff who suffered a diaphragmatic hernia was not required to undergo surgery in order to obtain continued payments for total permanent disability. Sullivan v. Green, 206 Tenn. 42, 331 S.W.2d 686, 1959 Tenn. LEXIS 422 (1959).

Claimant's refusal to accept surgical treatment and hospitalization for an operation to remove torn cartilage in his knee joint was unjustifiable, therefore, his right to compensation was properly suspended and his petition dismissed by the trial court. Hughes v. All Weather Insulation Co., 216 Tenn. 722, 394 S.W.2d 638, 1965 Tenn. LEXIS 617 (1965).

A reasonable refusal to undergo an operation will not result in suspension of compensation payments. Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124, 1966 Tenn. LEXIS 559 (1966).

Where failure of employee to submit to hernia operation was due to his failure to understand the nature and consequences of an operation and as to who would pay for it, failure of employee to appear was not such as to justify denial of compensation. Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124, 1966 Tenn. LEXIS 559 (1966).

Injured employee could not be required to undergo major surgery in the form of laminectomy for removal of two discs as a condition to continued compensation. Bland Casket Co. v. Davenport, 221 Tenn. 492, 427 S.W.2d 839, 1968 Tenn. LEXIS 479 (1968).

Where it was recommended that injured person undergo surgery but such surgery was serious and there was no guarantee that it would improve such person's physical condition, failure to keep an appointment for a psychological evaluation preparatory to surgery would not subject such person to loss of benefits. Holder v. Liberty Mut. Ins. Co., 587 S.W.2d 372, 1979 Tenn. LEXIS 503 (Tenn. 1979).

20. Malpractice — Recovery for Injury Therefrom.

Since acceptance of medical services tendered by an employer is compulsory upon injured employee under this section, the employee may recover for a new injury or aggravation of his injury, resulting directly and without intervening cause from medicinal or surgical treatment of a compensable injury. Revell v. McCaughan, 162 Tenn. 532, 39 S.W.2d 269, 1930 Tenn. LEXIS 120 (1931); International Harvester Co. v. Scott, 163 Tenn. 516, 43 S.W.2d 1065, 1931 Tenn. LEXIS 142 (1931).

An employee may recover compensation for a new injury or aggravation of his injury resulting from medical or surgical treatment. Whitaker v. Morton Frozen Foods, Inc., 201 Tenn. 425, 300 S.W.2d 610, 1957 Tenn. LEXIS 319 (1957).

Where injury to worker was aggravated by improper treatment by physician employed by employer on a fee basis, injured employee could bring action against the physician for malpractice, notwithstanding that he received compensation under the act. Garrison v. Graybeel, 202 Tenn. 567, 308 S.W.2d 375, 1957 Tenn. LEXIS 442 (1957).

21. Autopsy.

A dependent who claims under this statute cannot deny right of employer to have an autopsy upon the body of a deceased employee, where the cause of death is obscure or disputed. Battle Creek Coal & Coke Co. v. Martin, 155 Tenn. 34, 290 S.W. 18, 1926 Tenn. LEXIS 16 (1927).

Autopsy demanded reasonably and seasonably by employer who understood the widow had assented should not be excluded on ground that widow did not assent thereto, she being bound by her husband's contract of employment which, under this section, permitted autopsy where cause of death is obscure or disputed. Battle Creek Coal & Coke Co. v. Martin, 155 Tenn. 34, 290 S.W. 18, 1926 Tenn. LEXIS 16 (1927).

Expression of a desire for an autopsy is not the definite demand contemplated by this law. Moreover, a refusal to permit an autopsy is not a bar to a recovery of compensation, but the right to an autopsy may be enforced by proper proceedings. Lenoir Car Works v. Hill, 163 Tenn. 578, 44 S.W.2d 321, 1931 Tenn. LEXIS 151 (1931).

Where question of autopsy was not referred to in the pretrial order and was not mentioned until the workers' compensation case was called for trial, at which time defendant's counsel stated that after introduction of proof defendant might desire an autopsy, defendant waited an unreasonable length of time before bringing the question to the attention of the court. Manis v. Travelers Ins. Co., 239 F. Supp. 439, 1965 U.S. Dist. LEXIS 7062 (E.D. Tenn. 1965).

Demand for autopsy was properly refused where carrier made its demand nine months after death of employee making it unreasonable as to time, and other medical testimony was available, making it unreasonable as to the occasion of its presence. Robinson v. Nashville Machine Co., 503 S.W.2d 90, 1973 Tenn. LEXIS 430 (Tenn. 1973).

Employer's request for an autopsy was not timely where it was made over one year after the employer had notice from the pleadings that the cause of death would be an issue. Cunningham v. Shelton Sec. Servs., 958 S.W.2d 338, 1997 Tenn. LEXIS 630 (Tenn. 1997).

22. Reasonable Examination.

If it reasonably appears that disability of employee is due to a cause arising outside of the employment, and that an examination will disclose the cause of the disability and that conducting of the examination is not attended with appreciable pain or suffering or danger to life or health, the employee is required to submit to examination or lose right to compensation. Trent v. American Service Co., 185 Tenn. 298, 206 S.W.2d 301, 1947 Tenn. LEXIS 333 (1947).

Provision of this section as to length of time that the employer was required to furnish and the employee to accept medical aid had nothing to do with the length of time during which the employee could be required to submit to medical examination, and such examination could be required at any time if the request was reasonable. Trent v. American Service Co., 185 Tenn. 298, 206 S.W.2d 301, 1947 Tenn. LEXIS 333 (1947).

Employer does not forfeit his right that employee submit to a reasonable examination merely because it denies liability or stops payment of compensation. Trent v. American Service Co., 185 Tenn. 298, 206 S.W.2d 301, 1947 Tenn. LEXIS 333 (1947).

Employee was not entitled to further payment of compensation for disability where outward signs indicated that disability was due to tertiary stage of syphilis and he refused to submit to spinal puncture where evidence showed that spinal puncture was not accompanied by any great amount of pain or danger to life and health. Trent v. American Service Co., 185 Tenn. 298, 206 S.W.2d 301, 1947 Tenn. LEXIS 333 (1947).

The declining of an “offer” of such further medical attention as employee desired did not amount to “the refusal of a request” of further medical examination so as to suspend further compensation payments. Pee Wee Coal Co. v. Hensley, 196 Tenn. 498, 268 S.W.2d 367, 1954 Tenn. LEXIS 412 (1954).

Employer has right to have employee examined by doctor or physician of his choosing so long as he complies with the provisions of this section relating thereto and pays the expenses. Stubblefield v. Hot Mix Paving Co., 215 Tenn. 16, 383 S.W.2d 44, 1964 Tenn. LEXIS 536 (1964).

Testimony of physician selected by employer as to results of his examination of employee was not subject to objection that findings of physician were based on subjective or hearsay statements of employee. Stubblefield v. Hot Mix Paving Co., 215 Tenn. 16, 383 S.W.2d 44, 1964 Tenn. LEXIS 536 (1964).

In determining the reasonableness of a request for medical examination the trial judge is vested with discretion. Tibbals Flooring Co. v. Marcum, 218 Tenn. 509, 404 S.W.2d 498, 1966 Tenn. LEXIS 584 (1966).

Trial judge did not abuse his discretion in refusing to order examination by employer's physician where employee was examined by neutral physician agreed upon by the parties and there was no allegation that such physician was not qualified to make the examination. Tibbals Flooring Co. v. Marcum, 218 Tenn. 509, 404 S.W.2d 498, 1966 Tenn. LEXIS 584 (1966).

Trial court erred in denying employer's request for independent medical examination because employer had a right to seek such examination pursuant to T.C.A. § 50-6-204(d)(8); this qualified right differed from cases outside of the Worker's Compensation Act. Overstreet v. TRW Commer. Steering Div., 256 S.W.3d 626, 2008 Tenn. LEXIS 413 (Tenn. June 17, 2008), superseded by statute as stated in, Hayes v. Am. Zurich Ins. Co., — S.W.3d —, 2011 Tenn. LEXIS 458 (Tenn. May 25, 2011).

Employer was not entitled to have ex parte communications with employee's physician because implied covenant of confidentiality existed. Overstreet v. TRW Commer. Steering Div., 256 S.W.3d 626, 2008 Tenn. LEXIS 413 (Tenn. June 17, 2008), superseded by statute as stated in, Hayes v. Am. Zurich Ins. Co., — S.W.3d —, 2011 Tenn. LEXIS 458 (Tenn. May 25, 2011).

23. —Medical Reports.

Employer has right to medical reports reflecting employee's condition made by other than employee's doctors. Tibbals Flooring Co. v. Marcum, 218 Tenn. 509, 404 S.W.2d 498, 1966 Tenn. LEXIS 584 (1966).

If a trial court is unsatisfied with the medical proof regarding the degree of anatomical disability and cannot assess the extent of vocational disability on the evidence adduced in the record, T.C.A. § 50-6-204(d)(5) may be invoked and a physician appointed to evaluate the employee for this purpose. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 1988 Tenn. LEXIS 9 (Tenn. 1988).

T.C.A. § 50-6-204 requires a physician to use the AMA Guidelines, or the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment, and allows only physicians to assess permanent physical impairment. Bolton v. CNA Ins. Co., 821 S.W.2d 932, 1991 Tenn. LEXIS 483 (Tenn. 1991).

Where the court orders an independent examination of an employee under former T.C.A. § 50-6-204(d)(5) owing to obvious problems with the important issue of credibility, the employee's disagreement with the opinions of a court appointed expert is not by itself a valid basis for setting aside the appointment. Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 2001 Tenn. LEXIS 114 (Tenn. 2001).

Pursuant to T.C.A. §§ 50-6-204(f) and 50-6-235(c), the trial court properly admitted the report of the examining physician that was paid for by the employer. Martin v. Lear Corp., 90 S.W.3d 626, 2002 Tenn. LEXIS 459 (Tenn. 2002).

24. —Place of Examination.

In view of amendment of statute to provide that employee may be required to go outside his community for specialized medical attention not otherwise available upon payment of expenses by employer, holding to the contrary in Helfenberger v. Harriman N.E.R.R., 156 Tenn. 14, 299 S.W. 793, 1927 Tenn. LEXIS 81 (1927), is no longer the law. Stubblefield v. Hot Mix Paving Co., 215 Tenn. 16, 383 S.W.2d 44, 1964 Tenn. LEXIS 536 (1964).

The question of whether or not there are sufficiently specialized men in the immediate locality to make a proper medical examination of employee is a question for the trial court to determine, and where the trial court exercises his discretion and orders an examination by a specialist out of the county such action does not constitute reversible error unless it is shown that such discretion has been abused. Stubblefield v. Hot Mix Paving Co., 215 Tenn. 16, 383 S.W.2d 44, 1964 Tenn. LEXIS 536 (1964).

Trial court did not err by refusing to order the employee to undergo an independent medical examination by a physician whose office was located 200 miles from her home this section where the employer proffered nothing indicating that it could not find well-qualified physicians in the employee's area. Webb v. GM Co., — S.W.3d —, 2015 Tenn. LEXIS 691 (Tenn. Aug. 21, 2015), aff'd, Webb v. GMC, — S.W.3d —, 2015 Tenn. LEXIS 632 (Tenn. Aug. 21, 2015).

25. —Burden of Proof.

Considering the employer's access to medical reports, hospital records and charges, and considering that the claimant is bound to accept the medical attention provided by the employer, the employee should not bear the burden of establishing the necessity of medical treatment or the reasonableness of medical charges when the employer has designated the physician or the employer's designate refers the claimant to other specialists. Russell v. Genesco, Inc., 651 S.W.2d 206, 1983 Tenn. LEXIS 653 (Tenn. 1983); Russell v. Genesco, Inc., 651 S.W.2d 206, 1983 Tenn. LEXIS 653 (Tenn. 1983). See Tenpenny v. Batesville Casket Co., 781 S.W.2d 841, 1989 Tenn. LEXIS 527 (Tenn. 1989).

There should be a presumption that treatment furnished by physicians designated by the employer is necessary and the charges reasonable; the employer has the burden of persuading the court to the contrary, overruling Phillips v. Fleetguard Div. of Cummins Engine Co., 480 S.W.2d 528, 1972 Tenn. LEXIS 335 (Tenn. 1972), overruled, Russell v. Genesco, Inc., 651 S.W.2d 206, 1983 Tenn. LEXIS 653 (Tenn. 1983), and other inconsistent cases.  Downs v. CNA Ins. Co., 765 S.W.2d 738, 1989 Tenn. LEXIS 29 (Tenn. 1989).

The employee has the burden of establishing the “necessity and reasonableness” of charges incurred for treatment by providers not designated or otherwise approved by the employer. Baggett v. Jay Garment Co., 826 S.W.2d 437, 1992 Tenn. LEXIS 209 (Tenn. 1992).

26. Examination by Trial Judge.

Examination of petitioner's injury by trial judge is not error. Wilkinson v. Johnson City Shale Brick Corp., 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1927 Tenn. LEXIS 130 (1928), modified, 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1928 Tenn. LEXIS 243 (1928).

27. Evidence.

In order for report of court-appointed physician to be admissible as evidence, it must be stipulated by parties, or the information contained therein must be presented by doctor in open court or by deposition, with opportunity for counsel to examine and cross-examine. Bishop Baking Co. v. Forgey, 538 S.W.2d 602, 1976 Tenn. LEXIS 493 (Tenn. 1976).

A report by a court-appointed physician in the form of a letter not under oath is not admissible as evidence. Bishop Baking Co. v. Forgey, 538 S.W.2d 602, 1976 Tenn. LEXIS 493 (Tenn. 1976).

The general assembly did not intend, in enacting T.C.A. § 50-6-204(d)(3), to exclude chiropractic testimony, provided that the witness used the appropriate guide in making an evaluation, and provided that the testimony was within the witness' scope of expertise and licensure. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 1987 Tenn. LEXIS 930 (Tenn. 1987).

Use of one of the two guides named in T.C.A. § 50-6-204(d)(3) is unnecessary, although preferable, where causation and permanency have been established by expert testimony, because the issue then becomes the extent of vocational disability, not anatomical disability. Lyle v. Exxon Corp., 746 S.W.2d 694, 1988 Tenn. LEXIS 172 (Tenn. 1988); Davenport v. Taylor Feed Mill, 784 S.W.2d 923, 1990 Tenn. LEXIS 56 (Tenn. 1990), superseded by statute as stated in, Thweatt v. Travelers Prop. & Cas. Ins. Co., — S.W.3d —, 2000 Tenn. LEXIS 421 (Tenn. Special Workers' Comp. App. Panel July 27, 2000), superseded by statute as stated in, Rodgers v. Guys & Gals, Inc., — S.W.3d —, 2000 Tenn. LEXIS 422 (Tenn. July 27, 2000), superseded by statute as stated in, Rodgers v. Guys & Gals, Inc., — S.W.3d —, 2000 Tenn. LEXIS 428 (Tenn. Special Workers' Comp. App. Panel July 27, 2000).

When medical evidence establishes permanency, the failure of a medical expert to attribute a percentage of anatomical disability does not justify a denial of compensation if the other evidence demonstrates that an award of benefits is appropriate. Worthington v. Modine Mfg. Co., 798 S.W.2d 232, 1990 Tenn. LEXIS 379 (Tenn. 1990).

Where an employee moved for the provision of chiropractic services and presented evidence that chiropractic treatment would ameliorate to some extent chronic and permanent pain, reduce the need for analgesic medication, and prolong the employee's ability to remain ambulatory, the employer's assertion that it had submitted a list of physicians who were providing treatment was not an adequate response to this evidence. Baggett v. Jay Garment Co., 826 S.W.2d 437, 1992 Tenn. LEXIS 209 (Tenn. 1992).

A trial court is not required to accept all of a doctor's expert testimony. Clifton v. Komatsu Am. Mfg. Corp., 38 S.W.3d 550, 2001 Tenn. LEXIS 116 (Tenn. 2001).

Trial court did not err in finding the employee had a 20 percent disability as a whole based on a 10 percent medical impairment as a result of a second injury, without regard to the fact that the employee had a prior injury at this same level. Clifton v. Komatsu Am. Mfg. Corp., 38 S.W.3d 550, 2001 Tenn. LEXIS 116 (Tenn. 2001).

Where an employee's medical impairment rating was eight percent based on the fourth edition of the American Medical Association's Permanent Impairment Guidelines, but was 25 percent based on the fifth edition of the guidelines, the trial court erred in calculating the employee's impairment rating under the fifth edition as the fourth edition was in effect at the time the employee reached maximum medical improvement. Jefferies v. McKee Foods Corp., 145 S.W.3d 551, 2004 Tenn. LEXIS 658 (Tenn. 2004).

Statutory compensation scheme controlled the application of the American Medical Association Guides; to require injury to a scheduled member alone to be apportioned to the body as a whole merely because of the AMA Guides so provided would confound the classification scheme provided in T.C.A. § 50-6-207. Dotson v. Rice-Chrysler-Plymouth-Dodge, Inc., 160 S.W.3d 495, 2005 Tenn. LEXIS 221 (Tenn. 2005).

28. —Admission of Expert Medical Testimony.

It was the intent of the general assembly that the 1985 amendment providing a new standard for the admission of expert medical testimony on permanent disability be applied prospectively. White v. United Industrial Syndicate, 742 S.W.2d 635, 1987 Tenn. LEXIS 1047 (Tenn. 1987).

Trial court did not err by finding that the employee had Complex Regional Pain Syndrome and awarding permanent disability benefits based on that finding where the physicians on whom the employee relied testified that they based their diagnosis and impairment ratings on the AMA Guides in accordance with this section. Webb v. GM Co., — S.W.3d —, 2015 Tenn. LEXIS 691 (Tenn. Aug. 21, 2015), aff'd, Webb v. GMC, — S.W.3d —, 2015 Tenn. LEXIS 632 (Tenn. Aug. 21, 2015).

29. —Physical Therapists.

A physical therapist is not qualified to form and express an expert opinion as to the permanent impairment or permanent physical restrictions of an injured person. Bolton v. CNA Ins. Co., 821 S.W.2d 932, 1991 Tenn. LEXIS 483 (Tenn. 1991).

In a workers' compensation case, a physical therapist's testimony must be limited to objective findings and cannot encompass an opinion on ultimate disability. Bolton v. CNA Ins. Co., 821 S.W.2d 932, 1991 Tenn. LEXIS 483 (Tenn. 1991).

A physical therapist may make future physical activity recommendations to the referring physician or a patient based on the results of tests performed within the scope of a physical therapist's licensure, and may offer testimony thereon. Bolton v. CNA Ins. Co., 821 S.W.2d 932, 1991 Tenn. LEXIS 483 (Tenn. 1991).

30. Funeral Expenses.

Employer is liable for actual funeral expenses not exceeding the amount stated in this section. Franklin v. Stone & Webster Engineering Corp., 183 Tenn. 155, 191 S.W.2d 431, 1946 Tenn. LEXIS 195 (1946).

31. Employee's Refusal of Compensation — Effect as to Insurance Carrier.

Compensation insurance carrier for employer was entitled to recover amount of medical and hospital expenses paid for employee from third party whose negligence caused injury though employee refused compensation and sued third party for damages, since word “compensation” includes medical and hospital benefits. United States Fidelity & Guaranty Co. v. Union R. Co., 182 Tenn. 412, 187 S.W.2d 615, 1945 Tenn. LEXIS 235 (1945).

Employee's claim that the benefits she received in a prior settlement could not be set off under a setoff provision in her empl;oyer's uninsured motorist policy because she received nothing in the settlement was rejected as the settlement secured substantially all the benefits to which the employee was entitled under the Tennessee Workers'  Compensation Act; at the time of the settlement, the employee was entitled to the workers'  compensation benefits she received in a partial summary judgment for medical expenses, loss of earning capacity, bodily impairment, and lost wages. Further, she did not show that she was not entitled under the law to receive benefits as a result of her injury. Cooper v. Powers, — S.W.3d —, 2011 Tenn. App. LEXIS 638 (Tenn. Ct. App. Nov. 29, 2011).

32. Dismissal of Suit for Failure to Accept Services Tendered — Effect on Statute of Limitations.

Where trial court dismissed the petition of a worker for compensation upon the finding that the refusal of the worker to undergo an operation for hernia was unreasonable and the order dismissing the suit recited that “recovery should be denied until such time as petitioner would submit to said surgical operation to have said hernia repaired, and, consequently, the suit should be dismissed,” a second suit within one year after such dismissal but more than one year after the accident was not barred by the statute of limitations but fell within the clause of § 28-1-105 which provides that a new action may be brought within one year after an inconclusive judgment of dismissal. Blevins v. Pearson Hardwood Flooring Co., 176 Tenn. 606, 144 S.W.2d 781, 1940 Tenn. LEXIS 107 (1940).

33. Travel Expenses.

In order for travel expenses to be compensable under T.C.A. § 50-6-204, the evidence must show that the travel is reasonably required as being therapeutic in itself or that it is necessary to enable the employee to acquire a reasonably required medical, surgical, dental or nursing service. Wilhelm v. Kern's, Inc., 713 S.W.2d 67, 1986 Tenn. LEXIS 766 (Tenn. 1986).

34. Statute of Limitations.

Voluntary furnishing of medical services in accordance with this section during the year following notice to employer of injury tolled the running of the statute of limitations even though employer had not paid bills for such services. Fields v. Lowe Furniture Corp., 220 Tenn. 212, 415 S.W.2d 340, 1967 Tenn. LEXIS 399 (1967).

The payment of medical expenses by the employer for physical examination of the employee made for the sole purpose of evaluating alleged injuries with the employee receiving no medical treatment or medicine as a result thereof does not operate to toll the statute of limitations pursuant to § 50-6-203. Webb v. Rossville Home & Auto Supply Co., 483 S.W.2d 579, 1972 Tenn. LEXIS 367 (Tenn. 1972).

The period of limitations is tolled by the election of the employer to deny responsibility for such treatment. P. R. Mallory & Co. v. Ramsey, 566 S.W.2d 859, 1978 Tenn. LEXIS 562 (Tenn. 1978).

35. Failure to Submit Report.

Termination of benefits to employee on account of the failure of the doctor to submit the medical report as required by T.C.A. § 50-6-204 was improper where the employee was in no way responsible for the doctor's conduct and did not object to his giving the report. Martirez v. Meharry Medical College, 673 S.W.2d 141, 1984 Tenn. LEXIS 824 (Tenn. 1984).

36. Impairment Rating.

In a workers'  compensation case, the employee alleged she sustained injuries to her ankle and knee while lifting a patient. The evidence did not preponderate against the trial court's finding of 26% impairment to the leg based on a doctor's impairment rating under T.C.A. § 50-6-204(d)(3)(B) and the employee's testimony that her level of activity was permanently diminished. Collier v. Life Care Ctrs. of Collegedale, — S.W.3d —, 2012 Tenn. LEXIS 736 (Tenn. Oct. 8, 2012), aff'd, — S.W.3d —, 2012 Tenn. LEXIS 737 (Tenn. Oct. 8, 2012).

T.C.A. § 50-6-204(d)(5) did not violate procedural due process because the statute did not create a permanently irrebuttable presumption. Mansell v. Bridgestone Firestone N. Am. Tire, 417 S.W.3d 393, 2013 Tenn. LEXIS 645 (Tenn. Aug. 20, 2013).

T.C.A. § 50-6-204(d)(5) did not violate substantive due process because the creation of the medical impairment rating process, designed to minimize costs and expedite the resolution of claims by injured workers, did not qualify as an arbitrary, or conscience shocking exercise of the legislature's authority. Mansell v. Bridgestone Firestone N. Am. Tire, 417 S.W.3d 393, 2013 Tenn. LEXIS 645 (Tenn. Aug. 20, 2013).

T.C.A. § 50-6-204(d)(5) did not violate separation of powers because the provision did not impermissibly strike at the heart of the exercise of judicial authority, as the provision did not impermissibly conflict with Tenn. R. Evid. 702, as: (1) a medical impairment rating physician likely met the requirements of Tenn. R. Evid. 702; and (2) a trial court could still employ the factors used under Tenn. R. Evid. 702 when deciding if clear and convincing evidence rebutted the physician's opinion. Mansell v. Bridgestone Firestone N. Am. Tire, 417 S.W.3d 393, 2013 Tenn. LEXIS 645 (Tenn. Aug. 20, 2013).

Employee did not rebut the presumption provided in T.C.A. § 50-6-204(d)(5) because the employee offered no evidence addressing the rating of the appointed medical impairment rating physician. Mansell v. Bridgestone Firestone N. Am. Tire, 417 S.W.3d 393, 2013 Tenn. LEXIS 645 (Tenn. Aug. 20, 2013).

T.C.A. § 50-6-204(d)(5) did not violate separation of powers because the provision did not impermissibly strike at the heart of the exercise of judicial authority, as the provision did not impermissibly conflict with a court's authority under Tenn. R. Evid. 706 to appoint an expert by limiting the circumstances under which such an appointment could occur, as the court could still appoint a physician for purposes not barred by the statute. Mansell v. Bridgestone Firestone N. Am. Tire, 417 S.W.3d 393, 2013 Tenn. LEXIS 645 (Tenn. Aug. 20, 2013).

T.C.A. § 50-6-204(d)(5) did not solely apply to proceedings before the Department of Labor and Workforce Development (DOL) because no authority so limited the statute, so an employer or employee could seek the appointment of a medical impairment rating physician before either the DOL or a trial court. Mansell v. Bridgestone Firestone N. Am. Tire, 417 S.W.3d 393, 2013 Tenn. LEXIS 645 (Tenn. Aug. 20, 2013).

Statute had been amended and allowed for impairment ratings that were based upon other appropriate methods, which were testified to by the doctor in this case, and certain case law did not provide a basis for rejecting the impairment rating by the doctor. Lambdin v. Goodyear Tire & Rubber Co., 468 S.W.3d 1, 2015 Tenn. LEXIS 94 (Tenn. Jan. 29, 2015).

Evidence did not preponderate against the conclusion that the employee sustained a permanent anatomical impairment and vocational disability as a result of high levels of noise, and although the American Medical Association Guides do not address the effect of hearing loss at levels higher than 3000 hertz, there was support for the determination that expert testimony established a means to do so; the trial court accepted both the method the doctor used to ascertain hearing impairment at the higher frequencies and the employee's testimony that his hearing loss affected his ability to hear normal speech, and sufficient evidence supported the award. Lambdin v. Goodyear Tire & Rubber Co., 468 S.W.3d 1, 2015 Tenn. LEXIS 94 (Tenn. Jan. 29, 2015).

37. Attorney Fees.

Trial court erred in voiding a final administrative order of the Department of Labor (DOL) awarding an employee attorney fees in her actions to enforce a workers'  compensation settlement because the trial court lacked subject matter jurisdiction to hear the matter as a Uniform Administrative Procedures Act (UAPA), T.C.A. § 4-5-101 et seq. appeal; the informal dispute resolution procedures the DOL established for its specialists do not provide for a contested case hearing as required by the UAPA, T.C.A. § 4-5-322(a)(1). C.H. Guenther & Son, Inc. v. Head, — S.W.3d —, 2012 Tenn. App. LEXIS 852 (Tenn. Ct. App. Dec. 10, 2012).

Uniform Administrative Procedures Act (UAPA) appeal provision of T.C.A. § 50-6-238(d)(3) applies only with respect to penalties assessed by the Department of Labor (against an employer, and the administrative procedures described in T.C.A. § 50-6-204(g)(2) and T.C.A.§ 50-6-238 do not provide for a contested case hearing. C.H. Guenther & Son, Inc. v. Head, — S.W.3d —, 2012 Tenn. App. LEXIS 852 (Tenn. Ct. App. Dec. 10, 2012).

Collateral References.

Compensability of specially equipped van or vehicle under workers' compensation statutes. 63 A.L.R.5th 163.

Court's power to order physical examination of personal injury plaintiff as affected by distance or location of place of examination. 71 A.L.R.2d 973.

Physical examination of claimant other than employee. 131 A.L.R. 768.

Physician's duties and liabilities to person examined pursuant to physician's contract with such person's prospective or actual employer or insurer. 10 A.L.R.3d 1071.

Who may waive privilege of confidential communication to physician by person since deceased. 97 A.L.R.2d 373.

50-6-205. Period of compensation — Maximum amount — Notice of payment, change or nonpayment — Records — Notice of controversy.

  1. No compensation shall be allowed for the first seven (7) days of disability resulting from the injury, excluding the day of injury, except the benefits provided for in § 50-6-204, but if disability extends beyond that period, compensation shall commence with the eighth day after the injury. In the event, however, that the disability from the injury exists for a period as long as fourteen (14) days, then compensation shall be allowed beginning with the first day after the injury.
    1. The total amount of compensation payable under this part shall not exceed the maximum total benefit, as that benefit is defined in § 50-6-102, in any case, exclusive of travel reimbursement, medical, hospital and funeral benefits.
    2. Compensation shall be paid promptly. The first payment shall be due and payable within fifteen (15) days after the employer has knowledge of any disability or death, and thereafter compensation shall be paid to the employee or the employee's dependents semimonthly. Evidence of the initiation or denial of the compensation is inadmissible in a subsequent proceeding concerning the issue of the compensability of injury.
      1. In addition to any other penalty provided by law, if an employer, trust or pool or an employer's insurer fails to pay, or untimely pays, temporary disability benefits within twenty (20) days after the employer has knowledge of any disability that would qualify for benefits under this chapter, a workers' compensation judge shall have the authority to assess against the employer, trust or pool or the employer's insurer a civil penalty in addition to the temporary disability benefits that are due to the employee. The penalty, if assessed, shall be in an amount equal to twenty-five percent (25%) of the temporary disability benefits that were not paid in accordance with this subsection (b). Furthermore, the penalty may be assessed as to all temporary disability benefits that are determined not to be paid in compliance with this subsection (b).
      2. Prior to the assessment of any civil penalty, the judge shall issue a written request to the employer or insurance carrier to provide documentation as to why the civil penalty should not be assessed.
      3. If the judge determines the employer or insurer was not in compliance with this subsection (b), the judge shall issue a written order that assesses the penalty in a specific dollar amount to be paid directly to the employee. If the employer or insurer fails to comply with the order within fifteen (15) calendar days of that order's becoming final, the employer or insurer shall be subject to penalties as set forth in § 50-6-239(f).
      4. In any civil action filed pursuant to this chapter, the court shall have the authority to assess penalties as provided in this subdivision (b)(3).
    1. Upon making the first payment of benefits, and upon stopping or changing the benefits for any cause other than final settlement, or upon denying a claim after proper investigation, the employer's insurance carrier or the employer, if self-insured, shall immediately notify the administrator, on a form prescribed by the administrator, that the payment of income benefits has begun or has been stopped or changed.
    2. [Deleted by 2013 amendment, effective July 1, 2014.]
    1. If payments have been made without an award, and the employer subsequently elects to controvert the employer's liability, notice of controversy shall be filed with the administrator within fifteen (15) days of the due date of the first omitted payment.
    2. In such cases, the prior payment of compensation shall not be considered a binding determination of the obligations of the employer as to future compensation payments.
    3. Likewise, the acceptance of compensation by the employee shall not be considered a binding determination of the obligations of the employer as to future compensation payments; nor shall the acceptance of compensation by the employee be considered a binding determination of the employee's rights.

Acts 1919, ch. 123, § 26; 1923, ch. 84, § 3; Shan. Supp., § 3608a175; Code 1932, § 6876; Acts 1941, ch. 90, § 4; C. Supp. 1950, § 6876; Acts 1955, ch. 182, § 1; 1963, ch. 362, § 1; 1967, ch. 313, § 2; 1969, ch. 196, § 2; 1971, ch. 134, § 2; 1972, ch. 699, § 2; 1973, ch. 379, § 5; 1974, ch. 617, § 1; 1975, ch. 86, § 1; 1977, ch. 354, § 1; 1978, ch. 532, § 1; 1979, ch. 365, § 1; 1980, ch. 607, § 1; 1981, ch. 333, § 1; 1982, ch. 880, § 1; T.C.A. (orig. ed.), § 50-1005; Acts 1983, ch. 215, § 2; 1985, ch. 393, §§ 4, 20; 1996, ch. 790, § 2; 1997, ch. 533, § 3; 1999, ch. 520, § 41; 2004, ch. 962, § 6; 2007, ch. 330, § 1; 2013, ch. 289, §§ 44, 45.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2004, ch. 962, § 51 provided, in part, that § 6 of the act shall apply to accidents or injuries occurring on or after July 1, 2004.

Acts 2013, ch. 289, § 103 provided that the act, which amended subdivision (b)(3) and deleted subdivision (c)(2), shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, substituted “judge” for “specialist” throughout (b)(3); and deleted (c)(2) which read: “Failure to file the notice shall be a misdemeanor and shall, upon conviction, be punishable by a fine of not more than fifty dollars ($50.00).”

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014.

Cross-References. Inapplicability to claims filed against state, § 9-8-307.

Maximum compensation limits inapplicable, § 50-6-303.

50-6-205. Period of compensation — Maximum amount — Notice of payment, change or nonpayment — Records — Notice of controversy. [Applicable to injuries occurring prior to July 1, 2014.]

  1. No compensation shall be allowed for the first seven (7) days of disability resulting from the injury, excluding the day of injury, except the benefits provided for in § 50-6-204, but if disability extends beyond that period, compensation shall commence with the eighth day after the injury. In the event, however, that the disability from the injury exists for a period as long as fourteen (14) days, then compensation shall be allowed beginning with the first day after the injury.
    1. The total amount of compensation payable under this part shall not exceed the maximum total benefit, as that benefit is defined in § 50-6-102, in any case, exclusive of travel reimbursement, medical, hospital and funeral benefits.
    2. Compensation shall be paid promptly. The first payment shall be due and payable within fifteen (15) days after the employer has knowledge of any disability or death, and thereafter compensation shall be paid to the employee or the employee's dependents semimonthly. Evidence of the initiation or denial of the compensation is inadmissible in a subsequent proceeding concerning the issue of the compensability of injury.
      1. In addition to any other penalty provided by law, if an employer, trust or pool or an employer's insurer fails to pay, or untimely pays, temporary disability benefits within twenty (20) days after the employer has knowledge of any disability that would qualify for benefits under this chapter, a workers' compensation specialist shall have the authority to assess against the employer, trust or pool or the employer's insurer a civil penalty in addition to the temporary disability benefits that are due to the employee. The penalty, if assessed, shall be in an amount equal to twenty-five percent (25%) of the temporary disability benefits that were not paid in accordance with this subsection (b). Furthermore, the penalty may be assessed as to all temporary disability benefits that are determined not to be paid in compliance with this subsection (b).
      2. Prior to the assessment of any civil penalty, the specialist shall issue a written request to the employer or insurance carrier to provide documentation as to why the civil penalty should not be assessed.
      3. If the specialist determines the employer or insurer was not in compliance with this subsection (b), the specialist shall issue a written order that assesses the penalty in a specific dollar amount to be paid directly to the employee. If the employer or insurer fails to comply with the order within fifteen (15) calendar days of that order's becoming final, the employer or insurer shall be subject to penalties as set forth in § 50-6-238(d).
      4. In any civil action filed pursuant to this chapter, the court shall have the authority to assess penalties as provided in this subdivision (b)(3).
    1. Upon making the first payment of benefits, and upon stopping or changing the benefits for any cause other than final settlement, or upon denying a claim after proper investigation, the employer's insurance carrier or the employer, if self-insured, shall immediately notify the administrator, on a form prescribed by the administrator, that the payment of income benefits has begun or has been stopped or changed.
    2. Failure to file the notice shall be a misdemeanor and shall, upon conviction, be punishable by a fine of not more than fifty dollars ($50.00).
    1. If payments have been made without an award, and the employer subsequently elects to controvert the employer's liability, notice of controversy shall be filed with the administrator within fifteen (15) days of the due date of the first omitted payment.
    2. In such cases, the prior payment of compensation shall not be considered a binding determination of the obligations of the employer as to future compensation payments.
    3. Likewise, the acceptance of compensation by the employee shall not be considered a binding determination of the obligations of the employer as to future compensation payments; nor shall the acceptance of compensation by the employee be considered a binding determination of the employee's rights.

Acts 1919, ch. 123, § 26; 1923, ch. 84, § 3; Shan. Supp., § 3608a175; Code 1932, § 6876; Acts 1941, ch. 90, § 4; C. Supp. 1950, § 6876; Acts 1955, ch. 182, § 1; 1963, ch. 362, § 1; 1967, ch. 313, § 2; 1969, ch. 196, § 2; 1971, ch. 134, § 2; 1972, ch. 699, § 2; 1973, ch. 379, § 5; 1974, ch. 617, § 1; 1975, ch. 86, § 1; 1977, ch. 354, § 1; 1978, ch. 532, § 1; 1979, ch. 365, § 1; 1980, ch. 607, § 1; 1981, ch. 333, § 1; 1982, ch. 880, § 1; T.C.A. (orig. ed.), § 50-1005; Acts 1983, ch. 215, § 2; 1985, ch. 393, §§ 4, 20; 1996, ch. 790, § 2; 1997, ch. 533, § 3; 1999, ch. 520, § 41; 2004, ch. 962, § 6; 2007, ch. 330, § 1.

Code Commission Notes.

The misdemeanor in this section has been designated as a Class A misdemeanor by authority of § 40-35-110, which provides that an offense designated a misdemeanor without specification as to category is a Class A misdemeanor. See also § 39-11-114.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2004, ch. 962, § 51 provided, in part, that § 6 of the act shall apply to accidents or injuries occurring on or after July 1, 2004.

Cross-References. Inapplicability to claims filed against state, § 9-8-307.

Maximum compensation limits inapplicable, § 50-6-303.

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 38.

Law Reviews.

Trouble with Workmen's Compensation in Tennessee (Bruce R. Boals), 38 Tenn. L. Rev. 517 (1971).

Attorney General Opinions. Disability includes both temporary total and partial disability, OAG 94-117 (10/10/94).

NOTES TO DECISIONS

1. Death Not Caused by Injury — Effect.

Weekly allowance to injured employee for loss of leg terminates upon employee's death not due to the injury, and does not survive. Bry-Block Mercantile Co. v. Carson, 154 Tenn. 273, 288 S.W. 726, 1926 Tenn. LEXIS 123 (1926).

2. Period of Compensation.

Where period of temporary total disability extended two days beyond period of one week, employee was entitled to compensation for those two days in the amount of two-sevenths of the amount allowable for one week in accordance with § 50-6-207, even though those two days were Saturday and Sunday and the work week was from Monday through Friday. Oden v. Foster & Creighton Co., 201 Tenn. 237, 298 S.W.2d 711, 1957 Tenn. LEXIS 418 (1957).

3. Maximum Compensation.

Payment for temporary total disability was properly credited against award for permanent total disability in determining the limitation on total compensation provided by this section. Bland Casket Co. v. Davenport, 221 Tenn. 492, 427 S.W.2d 839, 1968 Tenn. LEXIS 479 (1968).

4. Limitation on Total Compensation.

The limitation on total compensation applies to cases involving the second injury fund. Hedges Mfg. Co. v. Worley, 223 Tenn. 102, 442 S.W.2d 624, 1969 Tenn. LEXIS 393 (1969).

5. Time for Payment.

Payment of compensation should have been made within 15 days after employer had knowledge of death of worker, not from the date the accompanying death claim was dismissed. Woodall v. Hamlett, 872 S.W.2d 677, 1994 Tenn. LEXIS 47 (Tenn. 1994).

6. Penalty.

In order to impose the penalty of six percent, the failure to pay must be in bad faith. Mayes v. Genesco, Inc., 510 S.W.2d 882, 1974 Tenn. LEXIS 508 (Tenn. 1974); Fagg v. Hutch Mfg. Co., 755 S.W.2d 446, 1988 Tenn. LEXIS 128 (Tenn. 1988).

Provisions governing covering time for payment of compensation and the six percent penalty on unpaid installments are mandatory; however, if failure to pay was in good faith, or based on reasonable judgment or doubt, then a penalty should not be assessed. Woodall v. Hamlett, 872 S.W.2d 677, 1994 Tenn. LEXIS 47 (Tenn. 1994).

7. Employer Controverting Liability.

Failure of the employer to show compliance with T.C.A. § 50-6-205(d) precludes it from contending that the accident and the resulting injury to the employee were not within the coverage of the workers' compensation statutes. Goins v. Kayser-Roth Hosiery, Inc., 751 S.W.2d 423, 1988 Tenn. LEXIS 106 (Tenn. 1988), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

No payment was “omitted” under the terms of T.C.A. § 50-6-205(d), because the defendant had paid temporary total disability based on the facts then known, and had conducted a reasonable investigation, hampered by circumstances beyond its control, to determine whether it had a complete defense to claims for permanent and additional temporary total disability benefits; therefore, defendant timely filed the notice of controversy and was not precluded from raising intoxication defense. Dobbs v. Liberty Mut. Ins. Co., 811 S.W.2d 75, 1991 Tenn. LEXIS 182 (Tenn. 1991).

8. Discharged Employee.

Reinstatement coupled with back pay involves the least amount of uncertainty, and because of the inherently speculative nature of front pay awards, reinstatement is the preferred remedy in cases involving discharged employees. Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 1992 Tenn. App. LEXIS 403 (Tenn. Ct. App. 1992).

9. Recovery of Conditional Payments.

An employer was entitled to recover funds paid to an employee and the employee's attorney in satisfaction of a judgment when the judgment was reversed on appeal. Catlett v. Indemnity Ins. Co. of N. Am., 914 S.W.2d 76, 1995 Tenn. LEXIS 780 (Tenn. 1995).

50-6-206. Settlements. [Applicable to injuries occurring prior to July 1, 2014.]

    1. The interested parties shall have the right to settle all matters of compensation between themselves, but all settlements, before the settlements are binding on either party, shall be reduced to writing and shall be approved by the judge of the circuit court or chancery court of the county where the claim for compensation is entitled to be made. It shall be the duty of the judge of the circuit court or chancery court to whom any proposed settlement is presented for approval under this chapter, to examine the proposed settlement to determine whether the employee is receiving, substantially, the benefits provided by this chapter. To this end, the judge may call and examine witnesses. Upon the settlement's being approved, judgment shall be rendered on the settlement by the court and duly entered by the clerk. The cost of the proceeding shall be borne by the employer. Certified copies of all papers, orders, judgments and decrees filed or entered by the court upon the approval of such settlement, together with a copy of the settlement agreement, shall be forwarded to the division of workers' compensation by the employer within ten (10) days after the entry of the judgment. If it appears that any settlement approved by the court does not secure to the employee in a substantial manner the benefits of this chapter, the settlement may, in the discretion of the trial judge, be set aside at any time within thirty (30) days after the receipt of the papers by the division, upon the application of the employee or the administrator of the division in the employee's behalf, whether the court has adjourned in the meantime or not, notwithstanding § 50-6-230 to the contrary. In all cases where the settlement proceedings or any other court proceedings for workers' compensation under this chapter involve a subsequent injury wherein the employee would be entitled to receive or is claiming compensation from the second injury fund provided for in § 50-6-208, the administrator shall be made a party defendant to the proceedings in an action filed by either the employer or the injured employee and an attorney representing the department under the supervision of the attorney general and reporter shall represent the administrator in the proceeding. The court, by its decree, shall determine the right of the claimant to receive compensation from the fund, and the clerk of the court shall furnish to the administrator a certified copy of the decree, the cost of which shall be added to the costs of the proceedings and shall be paid as other costs are adjudged in the case.
    2. Notwithstanding any other provision of this chapter to the contrary, the parties shall not be permitted to compromise and settle the issue of future medical benefits to which an employee is entitled pursuant to this chapter, except in accordance with the following:
      1. Nothing in this section shall be construed to prohibit the parties from compromising and settling at any time the issue of future medical benefits; provided, that the settlement agreement is approved by a trial court, or the commissioner or the commissioner's designee, and includes a provision confirming that the claimant has been advised of the consequences of the settlement, if any, with respect to Medicare and TennCare benefits and liabilities.
      2. [Deleted by 2011 amendment.]
      3. Notwithstanding any other provision of this chapter or this subdivision (a)(2), an employee who is determined to be permanently totally disabled shall not be allowed to compromise and settle the employee’s rights to future medical benefits.
      4. [Deleted by 2011 amendment.]
  1. Notwithstanding any other provision of this section, if there is a dispute between the parties as to whether a claim is compensable, or as to the amount of compensation due, the parties may settle the matter without regard to whether the employee is receiving substantially the benefits provided by this chapter; provided, that the settlement is determined by the court, or the commissioner or the commissioner's designee, to be in the best interest of the employee.
    1. The commissioner or the commissioner's designee may approve a proposed settlement among the parties if:
      1. The settlement agreement has been signed by the parties;
      2. The commissioner or the commissioner's designee has determined that the employee is receiving, substantially, the benefits provided by this chapter, or, in cases subject to subsection (b), in the best interest of the employee; and
      3. If the employee was not represented by counsel at a benefit review conference, the settlement agreement shall be reviewed by a specialist within the department who was not associated with the employee's case.
    2. Among the parties, a settlement approved by the commissioner pursuant to this subsection (c) shall be entitled to the same standing as a judgment of a court of record for purposes of § 50-6-230 and all other purposes. A settlement approved by the commissioner may be appealed as a final order pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
      1. For settlements in which the employee is represented by counsel, the parties shall seek the approval of the department as provided in this subsection (c), unless the parties agree to seek the approval of a court pursuant to subsection (a).
      2. For settlements in which the employee is not represented by counsel, the parties shall seek the approval of a court pursuant to subsection (a), unless the parties agree to seek approval from the department pursuant to this subsection (c).
    3. The commissioner or the commissioner's designee shall approve or reject settlements submitted to the department within three (3) business days of receiving the settlement. The review and approval or disapproval shall be provided in the regional offices of the division or other location agreed to by the parties and the division. If the commissioner or the designee does not approve or reject the settlement within three (3) business days, either party may submit a copy of the signed settlement to any court with jurisdiction to hear the underlying workers' compensation claim. If the injured employee is not represented by counsel, the review shall be conducted in person.
    4. In approving settlements pursuant to this subsection (c), the commissioner or the commissioner's designee shall consider all pertinent factors, including degree of medical impairment, the employee's age, education, skills and training, local job opportunities and capacity to work at types of employment available in the claimant's disabled condition. If the injured employee is not represented by counsel, then the commissioner or the commissioner's designee shall thoroughly inform the employee of the scope of benefits available under this chapter, the employee's rights and the procedures necessary to protect those rights.

Acts 1919, ch. 123, § 27; Shan. Supp., § 3608a176; Code 1932, § 6877; Acts 1945, ch. 149, § 2; 1947, ch. 139, § 5; C. Supp. 1950, § 6877; Acts 1969, ch. 123, § 1; impl. am. Acts 1980, ch. 534, § 1; Acts 1980, ch. 479, § 1; 1981, ch. 488, § 4; T.C.A. (orig. ed.), § 50-1006; Acts 1983, ch. 217, §§ 1, 2; 1996, ch. 944, § 14; 1999, ch. 520, § 41; 2002, ch. 695, § 4; 2004, ch. 962, §§ 3, 4, 48; 2011, ch. 416, §§ 3-6.

Compiler's Notes. Acts 1996, ch. 944, § 57 provided that the amendment by that act shall apply to accidents and injuries occurring on and after January 1, 1997.

Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2004, ch. 962, § 51 provided, in part, that §§ 3 and 4 of the act shall apply to accidents or injuries occurring on or after July 1, 2004.

Acts 2011, ch. 416, § 10 provided that §§ 3-9 of the act, which amended §§ 50-6-102(12), 50-6-204(a)(1) and (2), 50-6-206(a)(2) and (b)  and 50-6-301, shall apply to injuries occurring on or after June 6, 2011.

Acts 2013, ch. 289, § 46, effective July 1, 2014, amends § 50-6-206 by deleting it in its entirety.  However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law.  Thus, this section remains in effect as to injuries occurring prior to July 1, 2014.

Cross-References. Fees for clerks of court, § 8-21-401.

Inapplicability to claims filed against state, § 9-8-307 [version applicable to injuries occurring prior to July 1, 2014].

Lump sum payments, approval by court, § 50-6-229.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 530.

Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 34.

Law Reviews.

Res Judicata — Effect of Dismissal with Prejudice, 48 Tenn. L. Rev. 437 (1981).

NOTES TO DECISIONS

1. In General.

The statutory framework of this law does not require the claimant to make a formal request for relief from the fund to present a case for determining the liability of the fund. United States Pipe & Foundry Co. v. Johnson, 927 F.2d 296, 1991 U.S. App. LEXIS 3764 (6th Cir. Tenn. 1991).

In a workers'  compensation case, the trial court did not err in denying an employee's motion to set aside a judgment approving a settlement between the parties although the employee did not personally appear in court because a personal appearance by the employee was not required under T.C.A. § 50-6-206 to procure approval of the settlement. Henderson v. Saia, Inc., 318 S.W.3d 328,  2010 Tenn. LEXIS 678 (Tenn. Aug. 24, 2010), rehearing denied, Henderson v. SAIA, Inc., — S.W.3d —, 2010 Tenn. LEXIS 866 (Tenn. Sept. 8, 2010).

2. Right to Challenge Validity of Section.

An employer who has elected to operate under this statute and to accept its terms is without right to challenge the validity of this section as being an unconstitutional deprivation of rights of property without due process. Vester Gas Range & Mfg. Co. v. Leonard, 148 Tenn. 665, 257 S.W. 395, 1923 Tenn. LEXIS 53 (1923).

3. Second Injury Fund.

4. —Party Status.

It was the intention of the general assembly in mandating the party status of the “second injury fund” that the director be a party with notice of any hearing for court approval of any settlement involving potential liability of that fund. Dailey v. Southern Heel Co., 785 S.W.2d 344, 1990 Tenn. LEXIS 65 (Tenn. 1990).

Where the director of the division of workers' compensation was a party defendant in the case at the time the trial judge entered the judgment against the division's Second Injury Fund for 70 percent of a total disability award, and the director was represented by counsel in that proceeding, and the subsequent agreed settlement between the employer and the employee did not involve any potential liability of the Fund, the Second Injury Fund was not entitled to party status or notice with regard to such agreement. Cameron v. Kite Painting Co., 860 S.W.2d 41, 1993 Tenn. LEXIS 291 (Tenn. 1993).

5. —Immunity from Suit.

Actions against the director of the second injury fund to obtain a judgment from the second injury fund are suits against the state; therefore, the fund is protected by the immunity provided by U.S. Const., amend 11. United States Pipe & Foundry Co. v. Johnson, 927 F.2d 296, 1991 U.S. App. LEXIS 3764 (6th Cir. Tenn. 1991).

6. —Funding.

Statutes providing for funding of the second injury fund did not guarantee to eligible claimants that the fund would not be underfunded. Brock v. McWherter, 94 F.3d 242, 1996 FED App. 286P, 1996 U.S. App. LEXIS 22386 (6th Cir. Tenn. 1996).

7. —Agreement to Terms of Settlement.

Trial court could not approve a settlement between the employer and employee concerning the issue of disability caused by a subsequent injury where the second injury fund did not agree to its terms. Sweeten v. Trade Envelopes, 938 S.W.2d 383, 1996 Tenn. LEXIS 809 (Tenn. 1996).

8. Jurisdiction and Venue.

An action under this statute is transitory and a court other than one in the county where injury occurred has jurisdiction of subject matter. Having jurisdiction of subject matter, the court may adjudicate if jurisdiction of the person is obtained. Chambers v. Sanford & Treadway, 154 Tenn. 134, 289 S.W. 533, 1926 Tenn. LEXIS 111 (1926), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993), superseded by statute as stated in, Ferguson v. Ram Enters., 900 S.W.2d 19, 1995 Tenn. LEXIS 268 (Tenn. 1995). See also Redman v. Dupont Rayon Co., 165 Tenn. 585, 56 S.W.2d 737, 1932 Tenn. LEXIS 90 (1932), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Venue is not governed exclusively by § 50-6-225. Redman v. Dupont Rayon Co., 165 Tenn. 585, 56 S.W.2d 737, 1932 Tenn. LEXIS 90 (1932), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

An action under the Workers' Compensation Law is transitory, and where there is no objection to jurisdiction, a settlement under this section is “entitled to be made” in any county. Felty v. Chillicothe Realty Co., 175 Tenn. 315, 134 S.W.2d 153, 1939 Tenn. LEXIS 44 (1939).

Where the parties consented to the approval of a settlement of a compensation claim by a circuit judge of a county where neither of the parties resided, such settlement was valid and binding on the parties and barred a subsequent suit for compensation under such claim. Felty v. Chillicothe Realty Co., 175 Tenn. 315, 134 S.W.2d 153, 1939 Tenn. LEXIS 44 (1939).

Trial court did not have subject matter jurisdiction to compel medical benefits for an employee's physical injuries because there was no judgment or court-approved settlement providing for future medical benefits related to the employee's physical injuries. Hurst v. Claiborne Cty. Hosp. & Nursing Home, — S.W.3d —, 2018 Tenn. LEXIS 650 (Tenn. Oct. 24, 2018).

Trial court did not have subject matter jurisdiction to compel medical benefits for an employee's physical injuries because it had no basis for compelling a hospital to provide medical benefits that the trial court had not previously ordered or awarded; Hurst v. Claiborne Cty. Hosp. & Nursing Home, — S.W.3d —, 2018 Tenn. LEXIS 654 (Tenn. Oct. 24, 2018).

9. Duty of Court.

Judge to whom proposed settlement is presented does not do his duty if he does not follow provisions of this section and satisfy himself that the settlement is fair. J. E. Greene Co. v. Bennett, 207 Tenn. 635, 341 S.W.2d 751, 1960 Tenn. LEXIS 503 (1960), overruled in part, Indiana Lumberman's Mut. Ins. Co. v. Ray, 596 S.W.2d 816, 1980 Tenn. LEXIS 434 (Tenn. 1980).

The prospective agreement must be submitted to a circuit, chancery or criminal court judge who must review the provisions therein and determine if the provisions of the law for the protection of the worker have been substantially complied with. Lindsey v. Hunt, 215 Tenn. 406, 384 S.W.2d 441, 1964 Tenn. LEXIS 527 (1964), rehearing denied, Lindsey v. Hunt, 215 Tenn. 406, 387 S.W.2d 344, 1965 Tenn. LEXIS 505 (1964), overruled, Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991).

10. Nature of Settlements.

Lump sum settlements as authorized by statute are not compromise settlements in the usual sense of the word. Lindsey v. Hunt, 215 Tenn. 406, 384 S.W.2d 441, 1964 Tenn. LEXIS 527 (1964), rehearing denied, Lindsey v. Hunt, 215 Tenn. 406, 387 S.W.2d 344, 1965 Tenn. LEXIS 505 (1964), overruled, Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991).

11. Statutory Rights to Be Secured.

Although employee's death allegedly resulted from his own willful misconduct, $3,000 lump sum settlement was not substantial compliance with benefits provided by Workers' Compensation Law, and order approving settlement was vacated under section of law expressly forbidding court approval of settlement that does not secure benefits of law to employee in substantial manner. Winters v. Hunt, 193 Tenn. 189, 245 S.W.2d 195, 1951 Tenn. LEXIS 344 (1951).

Settlements between the parties must be made in accordance with the compensation specified by the statutes and a claimant cannot validly agree to less compensation than he is entitled to by the statute. Lindsey v. Hunt, 215 Tenn. 406, 384 S.W.2d 441, 1964 Tenn. LEXIS 527 (1964), rehearing denied, Lindsey v. Hunt, 215 Tenn. 406, 387 S.W.2d 344, 1965 Tenn. LEXIS 505 (1964), overruled, Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991).

All compensation claims are to be settled within the schedule of disability compensation provided by § 50-6-207 even where the settlement is made pursuant to this section. Lindsey v. Hunt, 215 Tenn. 406, 384 S.W.2d 441, 1964 Tenn. LEXIS 527 (1964), rehearing denied, Lindsey v. Hunt, 215 Tenn. 406, 387 S.W.2d 344, 1965 Tenn. LEXIS 505 (1964), overruled, Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991).

Claims for workers' compensation benefits which have not been reduced to judgment during the lifetime of the worker do not survive the worker's death from a nonwork-related cause. Moore v. Drake Bakeries, Inc., 834 S.W.2d 939, 1992 Tenn. LEXIS 502 (Tenn. 1992).

T.C.A. § 50-6-206 requires a detailed explanation of the full range of benefits available to each employee, including but not limited to an explanation of the difference between permanent partial disability benefits and permanent total disability benefits, the amount and duration of compensation available under each type of benefit, and the eligibility requirements for each type of benefit. Dennis v. Erin Truckways, Ltd., 188 S.W.3d 578, 2006 Tenn. LEXIS 305 (Tenn. 2006).

Given the fact that at least three of the safeguards in T.C.A. § 50-6-206 were ignored, and the fact that the evidence showed that the claimant did not understand the full range of his rights at the time he entered into the settlement, the appellate court affirmed the trial court's decision to set aside a mediated settlement agreement. Dennis v. Erin Truckways, Ltd., 188 S.W.3d 578, 2006 Tenn. LEXIS 305 (Tenn. 2006).

12. Degree of Disability to Be Stated.

The degree of percent of disability compensated must be included in agreements executed pursuant to this section. Lindsey v. Hunt, 215 Tenn. 406, 384 S.W.2d 441, 1964 Tenn. LEXIS 527 (1964), rehearing denied, Lindsey v. Hunt, 215 Tenn. 406, 387 S.W.2d 344, 1965 Tenn. LEXIS 505 (1964), overruled, Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991).

13. Agreement to Reemploy as Part of Settlement.

Where as part of a settlement of an employee's claim the employer agreed to “take the employee back to work and to give her suitable work in her condition,” the employer was obligated to take the employee back within a reasonable time after the approval of the settlement but was not obligated to reemploy her after a lapse of more than nine months. Greenwood v. National Biscuit Co., 175 Tenn. 302, 134 S.W.2d 149, 1939 Tenn. LEXIS 42 (1939).

14. Right of Subrogation Upon Lump Sum Settlement.

Where an independent contractor's employee was injured by the negligence of the general contractor, and the independent contractor and its insurer entered into a lump sum settlement with the employee which settlement was approved by the chancery court, the independent contractor and its insurer were subrogated to whatever rights the employee might have had against the general contractor. General Shale Products Corp. v. Reese, 35 Tenn. App. 423, 245 S.W.2d 788, 1951 Tenn. App. LEXIS 83 (Tenn. Ct. App. 1951).

15. Lack of Court's Approval — Effect.

Where the employee's settlement with insurance company was not approved by the judge of the circuit court, as required by this statute, and by employee's receipt, the employee was not barred from claiming further compensation, and the court did not lose its jurisdiction, where suit was instituted within one year after the employer's default. Vester Gas Range & Mfg. Co. v. Leonard, 148 Tenn. 665, 257 S.W. 395, 1923 Tenn. LEXIS 53 (1923).

An agreement between insurer and widow to pay her more than the statute provides is not binding without court's approval, and will not be approved over objection of insurer. Mangrum v. Aetna Life Ins. Co., 153 Tenn. 209, 280 S.W. 1011, 1925 Tenn. LEXIS 20 (1926); McCaslin v. Heath, 157 Tenn. 380, 8 S.W.2d 362, 1928 Tenn. LEXIS 202 (1928).

This section contemplates a judicial proceeding with notice or appearance, and a minute entry evidencing it, so that the judge's writing “approved” on a settlement, does not suffice. Wilkinson v. Johnson City Shale Brick Corp., 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1927 Tenn. LEXIS 130 (1928), modified, 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1928 Tenn. LEXIS 243 (1928).

A compromise settlement is not binding until approved by the court. Wilkinson v. Johnson City Shale Brick Corp., 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1927 Tenn. LEXIS 130 (1928), modified, 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1928 Tenn. LEXIS 243 (1928); United States Fidelity & Guaranty Co. v. McBride, 165 Tenn. 580, 56 S.W.2d 736, 1932 Tenn. LEXIS 89 (1933); Sherlin v. Liberty Mut. Ins. Co., 584 S.W.2d 455, 1979 Tenn. LEXIS 459 (Tenn. 1979).

An injured employee may bring a suit under the compensation statute, notwithstanding the employer has paid, prior thereto, a sum in excess of the amount due under the terms of an award previously made, where it appears that a substantial dispute exists as to the nature of the injury and the extent of compensation due. Key v. Briar Hill Collieries, 167 Tenn. 229, 68 S.W.2d 115, 1933 Tenn. LEXIS 30 (1934).

Where settlement between insurance carrier and injured worker was not approved by the court as provided by this section, matters in controversy between worker and employer remained open to litigation since such a settlement is not binding on insurer, employer or employee. Moore v. Hines, 170 Tenn. 456, 95 S.W.2d 928, 1936 Tenn. LEXIS 15 (1936).

Agreement between insurance carrier and injured worker which was not approved by the court was not binding on the insurer, employer or employee but was sufficient to prevent the running of the statute of limitations until default of such settlement or determination. Moore v. Hines, 170 Tenn. 456, 95 S.W.2d 928, 1936 Tenn. LEXIS 15 (1936).

Where a release of the right of compensation was not approved by the circuit court, such release was invalid and was not binding on the parties. Southern R. Co. v. Baskette, 175 Tenn. 253, 133 S.W.2d 498, 1939 Tenn. LEXIS 37 (1939).

A settlement between the parties, if not approved by the court as provided by this section, would not prevent a suit for compensation by the employee within one year after the injury. Stephens v. American Mut. Liability Ins. Co., 188 Tenn. 560, 221 S.W.2d 803, 1949 Tenn. LEXIS 374 (1949).

Where settlement was not approved by the court it is not binding on the employer, the insurer or the employee for any purpose and cannot be enforced. Gross v. National Health Enterprises, Inc., 582 S.W.2d 379, 1979 Tenn. LEXIS 443 (Tenn. 1979); Hale v. CNA Ins. Cos., 799 S.W.2d 659, 1990 Tenn. LEXIS 423 (Tenn. 1990).

16. Failure to Enter Order on Minutes.

Where a settlement was voluntarily made, the employee being represented by counsel, appearing in open court, and examined by the trial judge who thereafter signed an order approving the settlement, which order through negligence or error was not entered on the minutes, the case was a proper one for entry of an order nunc pro tunc. Hedges-Walsh-Weidner Co. v. Haley, 165 Tenn. 486, 55 S.W.2d 775, 1932 Tenn. LEXIS 74 (1933).

17. Employee — When Liable for Costs.

Where the injured employee seeks a recovery under the compensation statute, and it appears that defendant has paid all that he is liable for, such employee failing to sustain his contention will be taxed with the costs. Woodard v. National Cotton Seed Products Corp., 154 Tenn. 230, 285 S.W. 553, 1926 Tenn. LEXIS 118 (1926).

18. Court's Power to Set Aside Settlement.

The circuit court has full jurisdiction and power to set aside a compromise or settlement made in violation of the Workers' Compensation Law. Ledford v. Johnson City Foundry & Machine Co., 169 Tenn. 430, 88 S.W.2d 804, 1935 Tenn. LEXIS 66 (1935).

Petition to set aside settlement for leg injury previously approved by the court was properly denied where judge examined leg and evidence showed that leg had healed at time of settlement and was in as good condition as it was prior to injury. Wright v. Gerst Brewing Co., 195 Tenn. 150, 258 S.W.2d 739, 1953 Tenn. LEXIS 314 (1953).

Provision of this section as amended in 1947, providing for setting aside settlement agreements, repeals by implication that part of § 50-6-231 providing that lump sum payments shall be final. Bledsoe County Highway Dep't v. Pendergrass, 205 Tenn. 697, 330 S.W.2d 313, 1959 Tenn. LEXIS 410 (1959).

Where lump sum settlement entered into pursuant to this section was silent as to nature, extent and permanence of the disability being compensated and agreement was devoid of any criteria by which fairness of settlement could be judged, settlement could be modified even though § 50-6-231 provided that lump sum payments are final and petition was not filed until after the expiration of the 30 day period for modification provided by this section. Lindsey v. Hunt, 215 Tenn. 406, 384 S.W.2d 441, 1964 Tenn. LEXIS 527 (1964), rehearing denied, Lindsey v. Hunt, 215 Tenn. 406, 387 S.W.2d 344, 1965 Tenn. LEXIS 505 (1964), overruled, Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991).

Employee was not entitled to reopening of case and modification of award where rights had been judicially determined and no award was periodically payable for more than six months. Hughes v. Globe Co., 224 Tenn. 208, 452 S.W.2d 859, 1970 Tenn. LEXIS 316 (1970).

The only types of awards in compensation cases that may be reopened and modified are court approved settlements, even though they may provide for lump sum payment, or awards payable periodically for more than six months. Hughes v. Globe Co., 224 Tenn. 208, 452 S.W.2d 859, 1970 Tenn. LEXIS 316 (1970).

Section 50-6-231, providing that all lump sum payments of workers' compensation are final, was repealed by implication only to the extent that it conflicted with this section allowing a lump sum settlement to be set aside where it appears that the settlement does not secure to the employee in a substantial manner the benefits of the Workers' Compensation Law and where application to the trial court is made within 30 days after receipt by the division of workers' compensation of the papers in the case. Reams v. Trostel Mechanical Industries, Inc., 522 S.W.2d 170, 1975 Tenn. LEXIS 721 (Tenn. 1975).

The language of T.C.A. § 50-6-231, which provides that lump sum awards are final, was impliedly repealed to the extent that it conflicted with T.C.A. § 50-6-206, which allows such settlements to be set aside under certain circumstances if application is made to the trial court within 30 days after the division of workers' compensation's receipt of the judgment. If T.C.A. § 50-6-206 is not applicable by reason of its time constraints, lump sum settlements are final. Even if its provisions are applicable, the trial court must be shown that the settlement did not secure to the employee in a substantial manner the benefits of the Workers' Compensation Act. Nails v. Aetna Ins. Co., 834 S.W.2d 289, 1992 Tenn. LEXIS 413 (Tenn. 1992).

When a party agrees to settle a workers' compensation claim, and the trial court approves the settlement, the settling party is generally not entitled to relief pursuant to Tenn. R. Civ. P. 60.02(5). Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 2000 Tenn. LEXIS 158 (Tenn. 2000).

Because the evidence preponderated against a finding that the employee was not represented by counsel, where it was beyond dispute that the employee was represented by counsel during the settlement negotiations and at the time the settlement was submitted to the Department of Labor for approval, the trial court clearly erred by premising its ruling, in part, on the absence of procedural safeguards afforded only to employees not represented by counsel. Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114, 2013 Tenn. LEXIS 204 (Tenn. Feb. 22, 2013).

Because the employee failed to establish at least two of the three criteria necessary to obtain relief in an independent action collaterally attacking a final judgment as it was clear that the employee had other available and adequate remedies, the employee either could have timely sought relief for the alleged mistake pursuant to Tenn. R. Civ. P. 60.02(1) or appealed from the Department-approved settlement pursuant to T.C.A. § 50-6-206(c)(2), the employee availed himself of neither remedy, and it could not be concluded that the employee was without fault, the court could not exercise inherent authority and consider the petition as an independent action. Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114, 2013 Tenn. LEXIS 204 (Tenn. Feb. 22, 2013).

Although an employee had to exhaust the benefit review conference process to file a claim for compensation under the Workers'  Compensation Law, T.C.A. § 50-6-225, the employee had not filed a claim for compensation, rather, the employee petitioned the trial court to set aside a Department-approved settlement; as the employee satisfied the exhaustion requirement, the trial court did not lack subject matter jurisdiction. Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114, 2013 Tenn. LEXIS 204 (Tenn. Feb. 22, 2013).

Parties did not seek court approval under T.C.A. § 50-6-206(a) and could not have proceeded under subsection (b) because, at all times relevant to the appeal, subsection (b) applied only to settlements not providing for future medical benefits, among other restrictions. Because the parties succeeded in reaching a mediated settlement, as evidenced by a signed document executed by the proper parties, the benefit review conference process was plainly exhausted. Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114, 2013 Tenn. LEXIS 204 (Tenn. Feb. 22, 2013).

19. Voluntary Settlement Set Aside by Director.

Where the director, rather than the plaintiff, sought to set aside a voluntary workers' compensation settlement, the plaintiff was not required to tender the benefits paid by the employer as a condition precedent to rescinding the settlement. Dailey v. Southern Heel Co., 785 S.W.2d 344, 1990 Tenn. LEXIS 65 (Tenn. 1990).

20. Writ of Error Coram Nobis.

Where proper grounds exist, petition for writ of error coram nobis to set aside settlement made under this section will lie. Central Franklin Process Co. v. Gann, 175 Tenn. 267, 133 S.W.2d 503, 1939 Tenn. LEXIS 38 (1939).

21. Period of Limitations.

Employee's attempt to set aside a lump sum settlement for workers' compensation approved by court decree was prohibited where the complaint seeking modification of the decree was not filed within the prescribed 30-day period. Reams v. Trostel Mechanical Industries, Inc., 522 S.W.2d 170, 1975 Tenn. LEXIS 721 (Tenn. 1975).

By placing the second injury fund into the workers' compensation act and remaining silent as to the time in which a claim against the fund is to be filed, while at the same time expressing the intent that the claim against the fund is to be tried with the employee's claim against his employer, the general assembly intended the time limitation on filing a workers' compensation claim against the employer to be equally applicable to a claim against the second injury fund. Travelers Ins. Co. v. Austin, 521 S.W.2d 783, 1975 Tenn. LEXIS 695 (Tenn. 1975).

22. Settlement in Employee's Best Interest.

A dismissal order which contained no finding that settlement was in the employee's best interest was invalid as a judgment on the merits of the plaintiff's rights. Garrett v. Corry Foam Products, Inc., 596 S.W.2d 808, 1980 Tenn. LEXIS 430 (Tenn. 1980).

Explicit provision to the effect that the settlement is for the best interest of the employee is not required under T.C.A. § 50-6-206 unless, under the terms of the proposed settlement, the employee is not receiving substantially the benefits provided by the Workers' Compensation Law, T.C.A. § 50-6-201 et seq.Thompson v. Firemen's Fund Ins. Co., 798 S.W.2d 235, 1990 Tenn. LEXIS 374 (Tenn. 1990).

Collateral References.

Approval of settlement or compromise by court or commission, character or status of right or claim within provision of act as to. 153 A.L.R. 285.

Recovery for discharge from employment in retaliation for filing worker's compensation claim. 32 A.L.R.4th 1221.

Time and jurisdiction for review, reopening, modification, or reinstatement of agreement. 165 A.L.R. 9.

50-6-207. Schedule of compensation.

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

  1. Temporary Total Disability.
    1. 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;
      1. 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;
      2. 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;
    2. 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;
    3. 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:
      1. At the time the treating psychiatrist concludes the employee has reached maximum medical improvement; or
      2. [Deleted by 2013 amendment, effective July 1, 2014.]
      3. One hundred four (104) weeks after the date of injury in the case of mental injuries where there is no underlying physical injury;
    4. An employee claiming an injury as defined in § 50-6-102, when the date of injury is on or after July 1, 2014, shall be conclusively presumed to be at maximum medical improvement when the treating physician ends all active medical treatment and the only care provided is for the treatment of pain or for a mental injury that arose primarily out of a compensable physical injury. The employer shall be given credit against an award of permanent disability for any amount of temporary total disability benefits paid to the employee after the date that the employee attains maximum medical improvement as determined by a workers' compensation judge.
  2. Temporary Partial Disability.
    1. In all cases of temporary partial disability, the compensation shall be sixty-six and two-thirds percent (66 2/3%) 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 fifty (450) 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;
    2. In all cases of temporary partial disability for claims with a date of injury on or after July 1, 2014, the compensation shall be sixty-six and two-thirds percent (66 2/3%) 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, but payment shall not extend beyond four hundred fifty (450) weeks. Payment shall 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. In any case when a dispute exists over the date of the employee's attainment of maximum medical improvement, the employer shall be given credit against an award of permanent disability for any amount of temporary partial disability paid to the employee after the date on which the workers' compensation judge determines maximum medical improvement.
  3. Permanent Partial Disability.
    1. In case of disability partial in character but adjudged to be permanent, at the time the injured employee reaches maximum medical improvement the injured employee shall be paid sixty-six and two-thirds percent (66 2/3%) of the employee's average weekly wages for the period of compensation, which shall be determined by multiplying the employee's impairment rating by four hundred fifty (450) weeks. The award set out in this subdivision (3)(A) shall be referred to as the “original award.” The injured employee shall receive these benefits, in addition to the benefits provided in subdivisions (1) and (2) and those provided by § 50-6-204, whether the employee has returned to work or not; and
    2. If at the time the period of compensation provided by subdivision (3)(A) ends, or one hundred eighty (180) days after the employee reaches maximum medical improvement, whichever is later, the employee has not returned to work with any employer 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 file a claim for increased benefits. If appropriate, the injured employee's original award as determined under subdivision (3)(A) shall be increased by multiplying the original award by a factor of one and thirty-five one hundredths (1.35). The award set out in this subdivision (3)(B) shall be referred to as the “resulting award.” In addition, the injured employee's resulting award shall be further increased by multiplying the resulting award by the product of the following factors, if applicable:
      1. Education: one and forty-five one hundredths (1.45), if the employee lacks a high school diploma or general equivalency diploma;
      2. Age: one and two tenths (1.2), if the employee was more than forty (40) years of age at the time the period of compensation ends, or one hundred eighty (180) days after the employee reaches maximum medical improvement, whichever is later; and
      3. Unemployment rate: one and three tenths (1.3), if the unemployment rate, in the Tennessee county where the employee was employed by the employer on the date of the workers' compensation injury, was at least two (2) percentage points greater than the yearly average unemployment rate in Tennessee according to the yearly average unemployment rate compiled by the department for the year immediately prior to the expiration of the period of compensation;
    3. In determining the employee's increased award pursuant to subdivision (3)(B), the employer shall be given credit for payment of the original award of benefits as determined under subdivision (3)(A) against the increased award.
    4. Any employee may file a claim for increased benefits under subdivision (3)(B) by filing a new petition for benefit determination, on a form prescribed by the administrator, with the bureau no more than one (1) year after the period of compensation provided in subdivision (3)(A) ends or one (1) year after the one hundred eighty-day period after the employee reaches maximum medical improvement, whichever is later. Any claim for increased benefits under this subdivision (3)(D) shall be forever barred, unless the employee files a new petition for benefit determination with the bureau within one (1) year after the period of compensation for the subject injury ends or one (1) year after the one hundred eighty-day period after the employee reaches maximum medical improvement, whichever is later. Under no circumstances shall an employee be entitled to additional benefits when:
      1. The employee's loss of employment is due to the employee's voluntary resignation or retirement; provided, however, that the resignation or retirement does not result from the work-related disability;
      2. The employee's loss of employment is due to the employee's misconduct connected with the employee's employment; or
      3. The employee remains employed but received a reduction in salary, wages, or hours that is concurrent with a reduction in salary, wages or reduction in hours that affected at least fifty percent (50%) of all hourly employees operating at or out of the same location.
    5. Nothing in this subdivision (3) shall prohibit the employer and employee from settling the issue of additional benefits at any time after the employee reaches maximum medical improvement. Any settlement or award of additional permanent partial disability benefits pursuant to this subdivision (3) shall give the employer credit for prior permanent partial disability benefits paid to the employee.
    6. Subdivision (3)(B) shall not apply to injuries sustained by an employee who is not eligible or authorized to work in the United States under federal immigration laws.
    7. The total amount of compensation payable in this subdivision (3) shall not exceed the maximum total benefit. The payment of temporary total disability benefits or temporary partial disability benefits shall not be included in calculating the maximum total benefit.
    8. All cases of permanent partial disability shall be apportioned to the body as a whole, which shall have a value of four hundred fifty (450) 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. If an employee has previously sustained an injury compensable under this section and has been awarded benefits for that injury, the injured employee shall be paid compensation for the period of temporary total disability or temporary partial disability and only for the degree of permanent disability that results from the subsequent injury.
  4. Permanent Total Disability.
      1. For permanent total disability as defined in subdivision (4)(B), sixty-six and two-thirds percent (66 2/3%) 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 less than five (5) years before the date when the employee is eligible for full benefits in the Old Age Insurance Benefit Program as referenced previously in this subdivision (4)(A)(i) or after the employee is eligible for such benefits, 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;
      2. 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:
  1. 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;
  2. The commuted portion of an award shall not exceed the value of one hundred (100) weeks of the employee's benefits;
  3. 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);
  4. 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;
  5. 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;
  6. 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;
  7. 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
  8. 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;

For injuries occurring on or after July 1, 2014, attorneys' fees in contested cases of permanent disability shall be calculated upon the first four hundred fifty (450) weeks of disability only;

In case an employee who is permanently and totally disabled becomes a resident 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 or conservator, if adjudicated incompetent, to be spent for the employee's benefit; such payments to cease upon the death of the employee;

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;

(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 subsequent injury and vocational recovery 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);

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;

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:

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;

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;

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;

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;

Prior to filing any request for reconsideration, the employer, insurer or department shall file a petition for benefit determination and participate in alternative dispute resolution pursuant to § 50-6-236. In the event the parties are unable to reach an agreement through alternative dispute resolution, the workers' compensation mediator shall issue a dispute certification notice and the employer, insurer or department may file a request for a hearing, as provided in § 50-6-239, to determine the issue of reconsideration.

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;

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:

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;

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

The amount involved and the results obtained;

The time limitations imposed by the client or by the circumstances; and

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

(i)  The employer, insurer or department, in the event the subsequent injury and vocational recovery 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;

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;

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

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;

Deductions in Case of Death.  In case a worker sustains an injury due to an accident arising primarily out of and in the course and scope 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

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 maintained by the United States Centers for Disease Control and Prevention.

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; 2010, ch. 920, § 1; 2011, ch. 47, § 52; 2013, ch. 282, §§ 4, 5; 2013, ch. 289, §§ 47-53; 2014, ch. 903, § 6; 2015, ch. 341, § 15; 2016, ch. 816, § 3; 2017, ch. 344, § 1; 2020, ch. 731, §§ 1, 2.

Compiler's Notes. For the mortality tables referred to in this section, see Volume 13 of the Tennessee Code Annotated.

Acts 2010, ch. 920, § 2 provided that the act, which added subdivision (1)(E), shall apply to injuries that occur on or after July 1, 2010.

Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of this legislation, which was July 1, 2011.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Acts 2020, ch. 731, § 5 provided that the act, which amended this section, applies to injuries occurring on or after June 22, 2020.

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, rewrote (4)(C)(v) which read: “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;”; and, in (5), substituted “arising primarily out of” for “arising out of” and substituting “course and scope of” for “course of”.

The 2013 amendment by ch. 289, effective July 1, 2014, deleted (1)(D)(ii) which read: “(1)(D)(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”; rewrote (1)(E), which read: “(E) If a treating physician determines that pain is persisting for an injured worker beyond an expected period for healing, the physician may refer such injured worker for pain management, encompassing pharmacological, non-pharmacological and other approaches to reduce or stop pain sensations. Such injured worker shall be presumed to have reached maximum medical improvement at the earliest occurrence of the following:“(i) The treating physician determines the injured worker has reached maximum medical improvement; or“(ii) One hundred and four (104) weeks after the commencement of pain management pursuant to the referral of the treating physician;”; in (2), substituted “four hundred fifty (450)” for “four hundred (400) in (A), and added (B) and (C); rewrote (3), which read: “(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 (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) of the average weekly wages during thirty-five (35) weeks;“(c )  For the loss of a second finger, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during thirty (30) weeks;“(d )  For the loss of a third finger, sixty-six and two thirds percent (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) of the average weekly wages during one hundred fifty (150) weeks;“(m )  For the loss of an arm, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during two hundred (200) weeks;“(n )  For the loss of a foot, sixty-six and two thirds percent (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) of the average weekly wages during four hundred (400) weeks;“(x )  For the loss of two (2) hands, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during four hundred (400) weeks;“(y )  For the loss of two (2) legs, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during four hundred (400) weeks;“(z )  For the loss of two (2) feet, sixty-six and two thirds percent (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) 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 (66 2/3%) 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;”; substituted “less than five (5) years before the date when the employee is eligible for full benefits in the Old Age Insurance Benefit Program as referenced previously in this subdivision (4)(A)(i) or after the employee is eligible for such benefits” for “after sixty (60) years of age, regardless of the age of the employee” in the second sentence of (4)(A)(i); rewrote (4)(A)(iii) which read: “Attorneys' fees in contested cases of permanent total disability shall be calculated upon the first four hundred (400) weeks of disability only;”; and substituted “maintained by the United States Centers for Disease Control and Prevention” for “from the code” at the end of (6).

The 2014 amendment, in the first sentence of (1)(E), as that subdivision was amended by Acts 2013, ch. 289, deleted “other than a mental injury”, preceding “when the date”, and added “or for a mental injury that arose primarily out of a compensable physical injury” at the end.

The 2015 amendment substituted “bureau” for “division” in the second sentence in (3)(D).

The 2016 amendment added the second sentence in (3)(A); and, in the introductory paragraph of (3)(B), deleted the comma following “subdivision (3)(A) ends” and substituted “the employee’s pre-injury employer” for “his pre-injury employer” in the first sentence, divided the former last sentence into the present second and fourth sentences by substituting a period for the former semicolon following “one and thirty-five one hundredths (1.35)”, substituted “original award” for “award” twice in the present second sentence, added the present third sentence, and substituted “resulting award” for “award” twice in the last sentence.

The 2017 amendment substituted “subsequent injury and vocational recovery fund” for “second injury fund” in (4)(c)(i) and (4)(d)(i).

The 2020 amendment inserted “, or one hundred eighty (180) days after the employee reaches maximum medical improvement, whichever is later,” following “ends” in the first sentence of the introductory paragraph of (3)(B) and in (3)(B)(ii); and inserted “or one (1) year after the one hundred eighty-day period after the employee reaches maximum medical improvement, whichever is later” twice in the introductory paragraph of (3)(D).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2014, ch. 903, § 14. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2016, ch. 816, § 11. April 14, 2016.

Acts 2017, ch. 344, § 12. May 9, 2017.

Acts 2020, ch. 731, § 5. June 22, 2020.

NOTES TO DECISIONS

1. Permanent Total Disability.

2. —Disability Assessment.

Employee was permanently and totally disabled because the first doctor testified that the employee suffered a herniated disc in March 2012, which required surgery; although the employee returned to work for the employer, he continued to report pain and related symptoms; despite other measures, the first doctor found that the employee was no longer able to work; a second doctor found that the employee suffered from pain in his back, severe muscle spasms in his back and atrophy in his left leg such that the second doctor was unaware of any jobs that the employee could perform; and the employee testified that he could not work, took pain medication and muscle relaxers, and had no other vocational skills or training. Gibson v. Sw. Tenn. Elec. Mbrshp. Corp., — S.W.3d —, 2017 Tenn. LEXIS 536 (Tenn. Aug. 28, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 534 (Tenn. Aug. 28, 2017).

3. Increased Benefits.

Trial court did not err in finding that the employee was eligible for increased benefits, that his case was extraordinary, and that limiting his award would be inequitable; limiting the employee to the benefits provided in T.C.A. § 50-6-207(3)(B) would result in him receiving a permanent partial disability award significantly less than the vocational disability ratings of both testifying vocational experts. Batey v. Deliver This, Inc., — S.W.3d —, 2019 Tenn. LEXIS 18 (Tenn. Jan. 29, 2019).

4. Burden of Proof.

Statute does not require an injured worker to establish the certification of an authorized treating physician factor by clear and convincing evidence, and instead, the statute requires a trial court to find by clear and convincing evidence only that limiting the employee's recovery to the benefits provided would be inequitable; if the trial court makes such a finding, then the three factors in T.C.A. § 50-6-242(a)(2)(A)-(C) need only be established by a preponderance of the evidence. Batey v. Deliver This, Inc., — S.W.3d —, 2019 Tenn. LEXIS 18 (Tenn. Jan. 29, 2019).

50-6-207. Schedule of compensation. [Applicable to injuries occurring prior to July 1, 2014.]

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

  1. Temporary Total Disability.
    1. 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;
      1. 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;
      2. 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;
    2. 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;
    3. 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:
      1. At the time the treating psychiatrist concludes the employee has reached maximum medical improvement;
      2. 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
      3. One hundred four (104) weeks after the date of injury in the case of mental injuries where there is no underlying physical injury;
    4. If a treating physician determines that pain is persisting for an injured worker beyond an expected period for healing, the physician may refer such injured worker for pain management, encompassing pharmacological, nonpharmacological and other approaches to reduce or stop pain sensations. Such injured worker shall be presumed to have reached maximum medical improvement at the earliest occurrence of the following:
      1. The treating physician determines the injured worker has reached maximum medical improvement; or
      2. One hundred and four (104) weeks after the commencement of pain management pursuant to the referral of the treating physician;
  2. Temporary Partial Disability.  In all cases of temporary partial disability, the compensation shall be sixty-six and two thirds percent (66 2/3%) 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.
    1. 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:
      1. Sixty-six and two thirds percent (66 2/3%) 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
      2. In addition, the injured employee shall receive sixty-six and two thirds percent (66 2/3%) 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:
  1. For the loss of a thumb, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during sixty (60) weeks;
  2. For the loss of a first finger, commonly called an index finger, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during thirty-five (35) weeks;
  3. For the loss of a second finger, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during thirty (30) weeks;
  4. For the loss of a third finger, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during twenty (20) weeks;
  5. For the loss of a fourth finger, commonly called a little finger, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during fifteen (15) weeks;
  6. 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;
  7. 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;
  8. For the loss of the great toe, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during thirty (30) weeks;
  9. For the loss of one (1) of the toes other than the great toe, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during ten (10) weeks;
  10. 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;
  11. The loss of more than one phalange shall be considered as the loss of the entire toe;
  12. For the loss of a hand, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during one hundred fifty (150) weeks;
  13. For the loss of an arm, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during two hundred (200) weeks;
  14. For the loss of a foot, sixty-six and two thirds percent (66 2/3%) of the average weekly wages for one hundred twenty-five (125) weeks;
  15. For the loss of a leg, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during two hundred (200) weeks;
  16. 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;
  17. For the loss of an eye, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during one hundred (100) weeks;
  18. For the complete permanent loss of hearing in both ears, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during one hundred fifty (150) weeks;
  19. For the loss of an eye and a leg, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during three hundred fifty (350) weeks;
  20. For the loss of an eye and an arm, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during three hundred fifty (350) weeks;
  21. For the loss of an eye and a hand, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during three hundred twenty-five (325) weeks;
  22. For the loss of an eye and a foot, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during three hundred (300) weeks;
  23. For the loss of two (2) arms, other than at the shoulder, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during four hundred (400) weeks;
  24. For the loss of two (2) hands, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during four hundred (400) weeks;
  25. For the loss of two (2) legs, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during four hundred (400) weeks;
  26. For the loss of two (2) feet, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during four hundred (400) weeks;

For the loss of one (1) arm and the other hand, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during four hundred (400) weeks;

For the loss of one (1) hand and (1) foot, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during four hundred (400) weeks;

For the loss of one (1) leg and one (1) hand, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during four hundred (400) weeks;

For the loss of one (1) arm and one (1) foot, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during four hundred (400) weeks; and

For the loss of one (1) arm and one (1) leg, sixty-six and two thirds percent (66 2/3%) of the average weekly wages during four hundred (400) weeks;

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

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;

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);

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 (66 2/3%) 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;

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;

Permanent Total Disability.

(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;

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:

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;

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

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);

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

In case an employee who is permanently and totally disabled becomes a resident 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 or conservator, if adjudicated incompetent, to be spent for the employee's benefit; such payments to cease upon the death of the employee;

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;

(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);

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;

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:

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;

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;

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;

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;

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;

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;

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

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;

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;

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;

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;

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:

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;

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

The amount involved and the results obtained;

The time limitations imposed by the client or by the circumstances; and

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

(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;

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;

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

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;

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

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; 2010, ch. 920, § 1; 2011, ch. 47, § 52.

Compiler's Notes. For the mortality tables referred to in this section, see Volume 13 of the Tennessee Code Annotated.

Acts 2010, ch. 920, § 2 provided that the act, which added subdivision (1)(E), shall apply to injuries that occur on or after July 1, 2010.

Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of this legislation, which was July 1, 2011.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

Cross-References. Agreements to receive payments greater than the schedule provides, § 50-6-243.

Maximum compensation limits inapplicable, § 50-6-303.

National guard, awards in case of injury or death, § 58-1-230.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 532.

Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, §§ 21-35.

Law Reviews.

Workers' Compensation — Anderson v. Save-ALot, Ltd.: Tennessee's Workers' Compensation Law is No Place for Sexual Harassment, 30 U. Mem. L. Rev. 185 (1999).

Worker's Compensation — Multiple Schedule Injury — Three-Member Rule and Policy, 46 Tenn. L. Rev. 884 (1979).

Attorney General Opinions. Commissions, inclusion in wages, OAG 94-011 (2/3/94).

Fringe benefits, such as employer contributions to an employee's pension or retirement savings plan, are not considered earnings for purposes of computing an employee's rate of compensation under the Workers' Compensation Act, T.C.A. § 50-6-207, OAG 01-037 (3/19/01).

NOTES TO DECISIONS

1. Constitutionality.

Section was unconstitutional for vagueness, where employer insisted that he should be given credit for disability paid by prior employer because statute should have stated that credit should be given and because statute did not consider the amount to be credited against prior injury. McKamey v. Pee Wee Mining Co., 498 S.W.2d 94, 1973 Tenn. LEXIS 455 (Tenn. 1973).

T.C.A. § 50-6-207(4)(A)(i), insofar as it relates to termination of permanent total disability benefits for workers age 60 and over, does not violate equal protection. Vogel v. Wells Fargo Guard Servs., 937 S.W.2d 856, 1996 Tenn. LEXIS 618 (Tenn. 1996).

2. Principle of Compensation Legislation.

The principle underlying workers' compensation legislation is the substitution of compensatory income for loss of earning capacity, proportioned to the loss of contributory income earning power of the particular member or faculty injured. Key v. Briar Hill Collieries, 167 Tenn. 229, 68 S.W.2d 115, 1933 Tenn. LEXIS 30 (1934); Sun Coal Co. v. Epperson, 178 Tenn. 114, 156 S.W.2d 400, 1941 Tenn. LEXIS 38 (1941); Standard Sur. & Cas. Co. v. Sloan, 180 Tenn. 220, 173 S.W.2d 436, 1943 Tenn. LEXIS 20, 149 A.L.R. 407 (1943).

The general purpose running through the statute is to make the award to the injured employee payable in weekly installments or in similitude as nearly as may be to the manner in which he is accustomed to receiving his wages with the exception of where the court approves a lump sum payment under § 50-6-229. Reeves v. State, 199 Tenn. 598, 288 S.W.2d 451, 1955 Tenn. LEXIS 310 (1956).

3. Construction.

The phrase in subdivision (3) “in such cases the compensation in and by the schedule provided shall be in lieu of all other compensation,” though somewhat uncertain, would seem to refer to the two classes of cases dealt with in the paragraph, namely, loss of use of member and loss of member, and to mean that loss of use of a member shall be in lieu of all compensation for the loss of the member itself. Jack v. Knoxville Fertilizer Co., 154 Tenn. 292, 289 S.W. 500, 1926 Tenn. LEXIS 126 (1926).

Amendatory Act 1923, ch. 84, § 1, which raised the maximum weekly compensation of employees for permanent disability and provided that all remaining portions of the original act remain in full force, did not raise the limit on total amount of compensation prescribed in former subsection (d). McKinney v. Aston, 154 Tenn. 326, 289 S.W. 518, 1926 Tenn. LEXIS 128 (1926).

The provision in subdivision (3) for denial of compensation to one refusing employment suitable to his capacity does not qualify the definite provision that scheduled compensation should be paid for scheduled injuries. Casteel v. Aluminum Co. of America, 161 Tenn. 407, 33 S.W.2d 61, 1930 Tenn. LEXIS 20 (1930). See also White v. Tennessee Consol. Coal Co., 162 Tenn. 380, 36 S.W.2d 902, 1930 Tenn. LEXIS 101 (1931).

The limitation upon the amount of the award for permanent total disability, contained in subdivision (4), was not a limitation upon the award for permanent partial disability under subdivision (3). Liberty Mut. Ins. Co. v. Maxwell, 164 Tenn. 1, 46 S.W.2d 67, 1931 Tenn. LEXIS 1 (1932).

Under a familiar principle of statutory construction, the supreme court has held that the later subdivision (4)(B) prevails over the earlier subdivision (3). Johnson v. Anderson, 188 Tenn. 194, 217 S.W.2d 939, 1949 Tenn. LEXIS 328, 1949 Tenn. LEXIS 329 (1949).

Under a proper construction of “wage”, as used in this section, “meals and tips” were not a part of the wage contract. Crane Co. v. Jamieson, 192 Tenn. 41, 237 S.W.2d 546, 1951 Tenn. LEXIS 378 (1951).

Temporary total disability and permanent partial disability can be set to run concurrently rather than consecutively. Hartley v. Liberty Mut. Ins. Co., 197 Tenn. 504, 276 S.W.2d 1, 1954 Tenn. LEXIS 519 (1954).

The 1953 amendment liberalized the law in favor of the injured employee. Smith v. Morristown Poultry Co., 198 Tenn. 412, 280 S.W.2d 929, 1955 Tenn. LEXIS 390 (1955).

There is a difference between the legal and the medical concepts of disability — the first meaning inability to work or earn wages and the latter meaning inability in a clinical or physical sense. Redmond v. McMinn County, 209 Tenn. 463, 354 S.W.2d 435, 1962 Tenn. LEXIS 379 (1962); McKenzie v. Campbell & Dann Mfg. Co., 209 Tenn. 475, 354 S.W.2d 440, 1962 Tenn. LEXIS 380 (1962).

Under the statute, temporary total disability, temporary partial disability, permanent partial disability and permanent total disability are four separate and distinct classes of disability separately compensated for by independent and unrelated provisions. Redmond v. McMinn County, 209 Tenn. 463, 354 S.W.2d 435, 1962 Tenn. LEXIS 379 (1962); McKenzie v. Campbell & Dann Mfg. Co., 209 Tenn. 475, 354 S.W.2d 440, 1962 Tenn. LEXIS 380 (1962).

There was no legislative intent to make subsequent amendments to this section retroactive so as to apply to persons injured prior to the subsequent amendments; thus plaintiff has right to compensation benefits according to this section as it existed at time of his injury and not according to subsequent amendments. Mitchell v. United States Fidelity & Guaranty Co., 206 F. Supp. 489, 1962 U.S. Dist. LEXIS 3764 (E.D. Tenn. 1962).

Although the general assembly has provided that medical reports prepared by physicians furnishing medical treatment to claimants shall follow certain approved guides for evaluations of permanent impairment, under T.C.A. § 50-6-204(d)(3), in prescribing this requirement, however, the general assembly had no intention of repealing all of the schedules contained in T.C.A. § 50-6-207. The mere fact that a medical impairment rating to a particular member may translate, for purposes of these guides, into a disability rating to the body as a whole does not alter the rule that if an injury is to a scheduled member only, the statutory schedules must control the disability award. Reagan v. Tennessee Municipal League, 751 S.W.2d 842, 1988 Tenn. LEXIS 109 (Tenn. 1988).

Because T.C.A. § 50-6-208(b) applies only when an employee receives successive awards for permanent disability to the body as a whole, T.C.A. § 50-6-207(3)(F) mandates that the trial court must determine the percentage of disability attributable to the second injury alone before determining whether T.C.A. § 50-6-208(b) will apply. Allen v. City of Gatlinburg, 36 S.W.3d 73, 2001 Tenn. LEXIS 57 (Tenn. 2001).

“Wage” as used in T.C.A. § 50-6-241(a)(1) covering permanent partial disability benefits means the hourly rate of pay for an employee who is compensated on an hourly basis, rather than average weekly wage. Powell v. Blalock Plumbing & Elec. & HVAC, 78 S.W.3d 893, 2002 Tenn. LEXIS 327 (Tenn. 2002).

Under the statutory scheme governing Tennessee workers' compensation claims, an injured employee who meets the statutory criteria is entitled to certain monetary benefits, including the payment of all medical expenses arising from the accident, together with a recovery for any temporary or permanent disability resulting from the accident; it is well settled that an accident arises out of the employment when, upon a consideration of all the circumstances, a causal connection exists between the conditions under which the work is required to be performed and the resulting injury, and typically, causation is established through expert medical testimony. Conner Bros. Excavating Co. v. Long, 98 S.W.3d 656, 2003 Tenn. LEXIS 162 (Tenn. 2003).

T.C.A. § 50-6-207(3)(A)(ii)(ff ) was deleted by an amendment in 2002, effectively changing the classification of mental injuries in a workers' compensation claim from a scheduled member injury to that of an injury to the body as a whole. Guess v. Sharp Mfg. Co. of Am., 114 S.W.3d 480, 2003 Tenn. LEXIS 722 (Tenn. 2003).

Relevant statutory language of T.C.A. § 50-6-207(4)(A)(i), i.e., “disabilities resulting from injuries which occur after 60 years of age,” is unambiguous. The plain and ordinary meaning encompasses only disabilities resulting from injuries that are sustained by an employee “after 60 years of age.” Galloway v. Liberty Mut. Ins. Co., 137 S.W.3d 568, 2004 Tenn. LEXIS 626 (Tenn. 2004).

4. —Application to Pneumoconiosis Cases.

The maximum limitations on workers' compensation benefits set forth in various sections of the Tennessee statutes are not applicable to persons suffering from coal workers' pneumoconiosis. Phillips v. Old Republic Ins. Co., 623 S.W.2d 920, 1981 Tenn. LEXIS 502 (Tenn. 1981).

5. Compensation in General.

Compensation is properly awarded for disability resulting from the aggravation of a preexisting disorder by an accidental injury. Sanders v. Blue Ridge Glass Corp., 161 Tenn. 535, 33 S.W.2d 84, 1930 Tenn. LEXIS 40 (1930).

All compensation claims are to be settled within the schedule of disability compensation provided by this section even where the settlement is made pursuant to § 50-6-206. Lindsey v. Hunt, 215 Tenn. 406, 384 S.W.2d 441, 1964 Tenn. LEXIS 527 (1964), rehearing denied, Lindsey v. Hunt, 215 Tenn. 406, 387 S.W.2d 344, 1965 Tenn. LEXIS 505 (1964), overruled, Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991).

Under the statutory scheme, awards are not based on a diminution of the employee's earning capacity but on the values fixed in the schedule for injuries to the body or a percentage thereof in case of partial disability. Hedges Mfg. Co. v. Worley, 223 Tenn. 102, 442 S.W.2d 624, 1969 Tenn. LEXIS 393 (1969).

Workers' compensation benefits are not contingent upon the disabled worker accepting vocational rehabilitation training when available. Mayes v. Genesco, Inc., 510 S.W.2d 882, 1974 Tenn. LEXIS 508 (Tenn. 1974).

The last successive employer or insurance carrier, taking the employee as he is found at the time of the accident, will be liable for the entire resulting disability, including all medical expenses arising from the disability and regardless of any  condition. Bennett v. Howard Johnsons Motor Lodge, 714 S.W.2d 273, 1986 Tenn. LEXIS 779 (Tenn. 1986).

While the fact that the employee's earning capacity has not decreased is not of controlling significance, it is one factor the trial court is entitled to consider. Jaske v. Murray Ohio Mfg. Co., 750 S.W.2d 150, 1988 Tenn. LEXIS 68 (Tenn. 1988).

6. —Date Payments Begin.

The chancellor was correct in directing that compensation payments begin on the date when petitioner ceased to work and receive his usual wages. Etter v. Blue Diamond Coal Co., 187 Tenn. 407, 215 S.W.2d 803, 1948 Tenn. LEXIS 446 (1948).

Where employee recovered against third party tortfeasor and amount of recovery was credited to the employer against his liability to the employee with the remainder of the amount due under the compensation statute to be paid in weekly installments, such installment payments should have been deferred until the sum total of weekly credits that would have accrued from the date of the injury would have been equal to the net credit from the recovery from the third party tortfeasor. Reece v. York, 199 Tenn. 592, 288 S.W.2d 448, 1956 Tenn. LEXIS 358 (1956).

Last day worked rule does not apply when determining an employee's compensation rate if the employee gives the employer actual notice of a gradually occurring injury prior to missing time from work on account of the injury. Accordingly, the judgment of the trial court was modified to reflect an award based on a weekly compensation rate calculated as of the date the employee reported her gradually occurring injury to her employer, rather than on the date of her surgery, the latter date being the date she finally stopped working. Bone v. Saturn Corp., 148 S.W.3d 69, 2004 Tenn. LEXIS 907 (Tenn. 2004), overruled in part, Bldg. Materials Corp. v. Britt, 211 S.W.3d 706, 2007 Tenn. LEXIS 21 (Tenn. 2007), overruled, Shoulders v. TRW Commer. Steering Div., — S.W.3d —, 2007 Tenn. LEXIS 351 (Tenn. Apr. 3, 2007), overruled, Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 2007 Tenn. LEXIS 741 (Tenn. Aug. 30, 2007), overruled in part, Mathenia v. Milan Seating Sys., 254 S.W.3d 313, 2007 Tenn. LEXIS 896 (Tenn. 2007), overruled, Buckingham v. Fid. & Guar. Ins. Co., — S.W.3d —, 2007 Tenn. LEXIS 910 (Tenn. Oct. 25, 2007), overruled, Pickens v. Delta Faucet, — S.W.3d —, 2007 Tenn. LEXIS 914 (Tenn. Oct. 29, 2007), overruled, Aerospace Testing Alliance v. Anderson, — S.W.3d —, 2008 Tenn. LEXIS 369 (Tenn. May 23, 2008), overruled in part, Edwards v. Saturn Corp., — S.W.3d —, 2008 Tenn. LEXIS 617 (Tenn. Sept. 25, 2008).

7. —Credits to Employer or Insurer.

Where the injury resulting in impairment of use of an arm, incapacitated petitioner from continuing his employment with the defendant as ginner, but petitioner performed other work for the defendant, not shown to be worth less than $12.00 a week, for which the employer paid him $24.00 a week for 12 weeks, a judgment allowing the defendant credit for 12 weeks at $12.00 a week instead of $24.00 was not disturbed in the appellate court. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

In computing compensation, employer is not entitled to credit for any sum in excess of statutory amount expended by him voluntarily and for purely humane reasons for surgical and medical attention to injured employee. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

Where employer made gratuitous contributions to the employee or wife to keep the family from want, same are not deductible in making statutory award. Hartford Acci. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904, 1928 Tenn. LEXIS 76 (1929).

In computing compensation for injuries, no credit should be allowed employer for wages earned by petitioner subsequent to his injury. Davenport Silk Mills v. Dillinger, 163 Tenn. 402, 43 S.W.2d 493, 1931 Tenn. LEXIS 129 (1931); Leonard v. Atlas Powder Co., 152 F. Supp. 81, 1956 U.S. Dist. LEXIS 2259 (D. Tenn. 1957), aff'd, 245 F.2d 676, 1957 U.S. App. LEXIS 3270 (6th Cir. Tenn. 1957).

Trial court properly ignored 10 weeks lost as result of tumor operation unconnected with employment where payment of compensation was delayed over 300 weeks. Crane Co. v. Jamieson, 192 Tenn. 41, 237 S.W.2d 546, 1951 Tenn. LEXIS 378 (1951).

Defendant was not entitled to deduction from plaintiff's award for any disability payments or insurance payments. Leonard v. Atlas Powder Co., 152 F. Supp. 81, 1956 U.S. Dist. LEXIS 2259 (D. Tenn. 1957), aff'd, 245 F.2d 676, 1957 U.S. App. LEXIS 3270 (6th Cir. Tenn. 1957).

Under the present law, employer is not entitled to credit for subsequent earnings when employee is awarded compensation for permanent partial disability. Tripp v. Hodge, 202 Tenn. 386, 304 S.W.2d 498, 1957 Tenn. LEXIS 403 (1957).

Company is not entitled to credits for payments made under group disability insurance policy prior to determination that disease was result of occupational disease where one half the premium was paid by the company and the other half by the petitioner and such insurance companies were not parties to the suit. American Bridge Div. U. S. Steel Corp. v. McClung, 206 Tenn. 317, 333 S.W.2d 557, 1960 Tenn. LEXIS 367 (1960), overruled, Brooks v. Gilman Paint Co., 208 Tenn. 595, 347 S.W.2d 665, 1961 Tenn. LEXIS 324 (1961).

Employer's carrier was not credited with payments made to employee for disability following prior injury in case where employee had been rehired to do unlimited manual labor and his present inability to work was due entirely to the later on-the-job injury. Employers-Commercial Union Cos. v. Taylor, 531 S.W.2d 104, 1975 Tenn. LEXIS 548 (Tenn. 1975).

8. —Mutilation Resulting from Disease.

A mutilation left after an employee's recovery from blastomycosis which arose out of his employment was not compensable. Hartford Acci. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904, 1928 Tenn. LEXIS 76 (1929).

9. —Malpractice Aggravating Injury.

Fact that under this schedule employee could not have been allowed more than a specified amount for injuries but he was, in fact, paid a larger amount showed that the injury for which the additional part of the compensation paid was for aggravation of the injury by malpractice of employer's physician. Revell v. McCaughan, 162 Tenn. 532, 39 S.W.2d 269, 1930 Tenn. LEXIS 120 (1931).

10. —Measure of Compensation.

The statute does not measure compensation by incapacity to work but by the monetary units fixed by the schedule. Catlett v. Chattanooga Handle Co., 165 Tenn. 343, 55 S.W.2d 257, 1932 Tenn. LEXIS 56 (1932).

Under Tennessee law in workers' compensation cases, compensation is paid on the basis of loss of earning power. Tinker v. Bessemer Coal, Iron & Land Co., 227 F. Supp. 710, 1964 U.S. Dist. LEXIS 8232 (E.D. Tenn. 1964).

The Workers' Compensation Law contains a schedule of injuries to members of the body which governs as to what award if any shall be made to one sustaining either total or partial loss or loss of use of a member scheduled, and under this system such award is not measured by diminution of the employee's earning capacity but by the value fixed in the statute or a percentage thereof in case of less than permanent loss of use. Aerosol Corp. of South v. Johnson, 222 Tenn. 339, 435 S.W.2d 832, 1968 Tenn. LEXIS 435 (1968).

When the injury is to a scheduled member, the disability award is exclusively controlled by the impairment rating established by the general assembly for that member and may not properly be apportioned to the body as a whole as in the case of unscheduled injuries. Reagan v. Tennessee Municipal League, 751 S.W.2d 842, 1988 Tenn. LEXIS 109 (Tenn. 1988).

11. — —Second Injury.

Under the second injury statute, computation of an award is to be made on the basis of the statutory schedule without regard to the earlier injury. Hedges Mfg. Co. v. Worley, 223 Tenn. 102, 442 S.W.2d 624, 1969 Tenn. LEXIS 393 (1969).

Under T.C.A. § 50-6-208(a), the employer is liable only for the disability that would have resulted from the subsequent injury, without consideration of the first. Minton v. State Industries, Inc., 825 S.W.2d 73, 1992 Tenn. LEXIS 129 (Tenn. 1992).

In cases involving the Second Injury Fund, an employer's liability for an award for permanent and total disability is not capped at 400 weeks where benefits are awarded to age 65. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

There is no statutory or equitable basis for using 400 weeks as the basis of apportionment under T.C.A. §§ 50-6-207(4)(A)(i) and 50-6-208, notwithstanding the argument that if an employer's liability is not limited to a percentage of 400 weeks, some employers might resist hiring young workers with disabilities in light of the legislation extending benefits to age 65 for permanent total disability; an employer's liability should be calculated based upon the total amount of benefits awarded to age 65. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

Trial court erred in limiting the employer's liability for the employee's permanent and total disability to 60 percent of 400 weeks (an award of 240 weeks). The parties agreed that the trial court correctly determined that the employee had a permanent and total disability and that 60 percent of that disability was due to his injury in May 2000; as a result, the trial court was required to hold that the employer was responsible for 60 percent of the employee's permanent and total disability until he reached the age of eligibility for social security (an award of 401 weeks), and that the Tennessee Second Injury Fund was responsible for the remainder (an award of 268 weeks). Gray v. Cullom Mach., Tool & Die, Inc., 152 S.W.3d 439, 2004 Tenn. LEXIS 1116 (Tenn. 2004).

12. —Group Insurance Not Intended as Compensation Insurance — Liability of Insurer.

Where an insurance company issued to a coal mining company a policy designated as an “employer's group liability policy,” insuring the mining company against accidental bodily injury or death by its employees, which contract did not comply, and was not intended to comply, with the requirements of the Workers' Compensation Law, and on death of an employee of the insured the insurer paid the amount due under the policy to the insured, which converted the money to its own use, the insurer cannot be held liable to the dependents of the employee for the amount due under the Workers' Compensation Law. McKinney v. Fidelity Coal Mining Co., 169 Tenn. 331, 87 S.W.2d 1004, 1935 Tenn. LEXIS 49 (1935).

13. Minimum Award.

However small the earnings of the employee, he was entitled to receive the minimum compensation provided by this section. Templeton v. Wilson, 174 Tenn. 65, 123 S.W.2d 824, 1938 Tenn. LEXIS 64 (1939).

The trial court may not set a new “floor” in compensation benefits abrogating the statutory provisions of T.C.A. § 50-6-207. Blake v. Tomes, 632 S.W.2d 556, 1982 Tenn. LEXIS 409 (Tenn. 1982).

14. Temporary Partial Disability.

Under subdivision (2), the trial judge need not set a percentage of disability in all cases, but makes his computations using the amount the employee is able to earn in his partially disabled condition. Continental Ins. Co. v. Dowdy, 560 S.W.2d 619, 1978 Tenn. LEXIS 570 (Tenn. 1978).

There was nothing in the record to support the trial court's denial of temporary disability benefits for the period of time that the employee's wrist was unusually inflamed to a point exceeding the severity of his preexisting condition which was the basis for denial of permanent disability compensation. Delevan-Delta Corp. v. Roberts, 611 S.W.2d 51, 1981 Tenn. LEXIS 402 (Tenn. 1981).

Benefits for temporary partial disability, referring to the time during which the injured employee is able to resume work before reaching maximum medical improvement, are to be calculated according to the precise method specified in T.C.A. § 50-6-207(2), which does not include the T.C.A. § 50-6-102 average weekly wage definition; whether the term “wage” in T.C.A. § 50-6-207(2) takes into account an employee's non-wage income if that employee is regularly compensated by non-wage income is a case whose resolution is not necessarily foreordained by the holding that T.C.A. § 50-6-207(2) does not incorporate the term “average weekly wage.” Wilkins v. Kellogg Co., 48 S.W.3d 148, 2001 Tenn. LEXIS 541 (Tenn. 2001), superseded by statute as stated in, Williams v. Saturn Corp., — S.W.3d —, 2005 Tenn. LEXIS 1032 (Tenn. Nov. 15, 2005).

15. Compensation for Temporary Total and Temporary Partial Disability — Relationship.

The duration of a temporary total disability should be deducted from the duration of a temporary partial disability, the statute contemplating a maximum period of 300 weeks. Cambria Coal Mining Co. v. Wilson, 156 Tenn. 64, 299 S.W. 811, 1927 Tenn. LEXIS 84 (1927); but see Adams v. Looney, 196 Tenn. 303, 265 S.W.2d 889, 1954 Tenn. LEXIS 379 (1954).

Employee was entitled to recover compensation for temporary partial disability for period of 300 weeks, in addition to 21 weeks for temporary total disability, where medical evidence established that he would be partially disabled for several years. Adams v. Looney, 196 Tenn. 303, 265 S.W.2d 889, 1954 Tenn. LEXIS 379 (1954).

16. Compensation for Temporary Total and Permanent Partial Disability — Relationship.

The provision of subdivision (3) that the compensation in the schedule provided shall be in lieu of all other compensation, does not prevent allowance for temporary total disability suffered by one whose permanent loss is covered by the schedule. Jack v. Knoxville Fertilizer Co., 154 Tenn. 292, 289 S.W. 500, 1926 Tenn. LEXIS 126 (1926).

Compensation may be allowed an employee both for temporary total disability and permanent partial disability as a result of the same injury; and one is not to be deducted from or credited on the other. Jones v. Crenshaw, 645 S.W.2d 238, 1983 Tenn. LEXIS 604 (Tenn. 1983).

17. —Deductions.

Weeks employee was paid compensation by reason of total temporary disability were not to be deducted from the number of weeks for which he was entitled to compensation for permanent partial disability to his body as a whole. Hooper v. Young Sales Corp., 199 Tenn. 629, 288 S.W.2d 703, 1956 Tenn. LEXIS 363 (1956); Bituminous Casualty Corp. v. Smith, 200 Tenn. 13, 288 S.W.2d 913, 1956 Tenn. LEXIS 372 (1956).

Compensation may be allowed an employee for both temporary total disability and permanent partial disability as a result of the same injury and one is not to be deducted from or credited on the other. Redmond v. McMinn County, 209 Tenn. 463, 354 S.W.2d 435, 1962 Tenn. LEXIS 379 (1962); McKenzie v. Campbell & Dann Mfg. Co., 209 Tenn. 475, 354 S.W.2d 440, 1962 Tenn. LEXIS 380 (1962).

Amounts paid out for temporary total disability benefits could not be credited to amounts payable for permanent disability either by employer or by second injury fund under § 50-6-208. Hedges Mfg. Co. v. Worley, 223 Tenn. 102, 442 S.W.2d 624, 1969 Tenn. LEXIS 393 (1969).

18. Compensation for Temporary Total and Permanent Total Disability — Relationship.

The amount previously paid petitioner for temporary total disability was properly credited against the maximum award for permanent total disability, in view of the provision of § 50-6-205 that “the total amount payable under this chapter” shall not exceed the maximum sum fixed in that section. Bland Casket Co. v. Davenport, 221 Tenn. 492, 427 S.W.2d 839, 1968 Tenn. LEXIS 479 (1968).

19. Temporary Total Disability.

Where period of temporary total disability extended two days beyond period of one week, employee was entitled to compensation for those two days in amount of two sevenths of the amount allowable for one week in accordance with the provisions of subdivision (1), even though those two days were Saturday and Sunday and the work week was from Monday through Friday. Oden v. Foster & Creighton Co., 201 Tenn. 237, 298 S.W.2d 711, 1957 Tenn. LEXIS 418 (1957).

Employee's initial disability, though total, would be deemed to be temporary until after a course of treatment and observation it was found to be permanent. Redmond v. McMinn County, 209 Tenn. 463, 354 S.W.2d 435, 1962 Tenn. LEXIS 379 (1962).

“Temporary total disability” refers to the injured employee's condition while he is disabled to work by his injury and until he recovers as far as the nature of his injury permits and is separate and distinct from any of the other kinds of disability. Redmond v. McMinn County, 209 Tenn. 463, 354 S.W.2d 435, 1962 Tenn. LEXIS 379 (1962); McKenzie v. Campbell & Dann Mfg. Co., 209 Tenn. 475, 354 S.W.2d 440, 1962 Tenn. LEXIS 380 (1962).

“Temporary total disability” refers to employee's condition while unable to work and until he recovers to the extent that the nature of his injuries permits his return to work. Shores v. Shores, 217 Tenn. 96, 395 S.W.2d 388, 1965 Tenn. LEXIS 522 (1965).

Where injury from partial loss of toes and foot was still in process of healing, it was proper for trial judge to fix a reasonable period in addition to what had already been paid for to allow a complete healing and to allow temporary total disability for such additional time. Shores v. Shores, 217 Tenn. 96, 395 S.W.2d 388, 1965 Tenn. LEXIS 522 (1965).

The temporary total disability period is the healing period during which the employee is totally prevented from working and such period is cut off when the worker has reached his maximum recovery at which point either permanent total or permanent partial disability commences. Gluck Bros., Inc. v. Coffey, 222 Tenn. 6, 431 S.W.2d 756, 1968 Tenn. LEXIS 406 (1968).

Trial court should not have allowed temporary total disability for period during which employee worked at another job even though such employment was because of economic necessity and employee was in constant pain during entire period he worked. A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141, 1970 Tenn. LEXIS 329 (1970).

The general assembly, in amending this section to change the disability rate, did not intend the change to operate retroactively, and the disability rate in effect at the time of the injury is controlling. Cates v. T.I.M.E., DC, Inc., 513 S.W.2d 508, 1974 Tenn. LEXIS 464 (Tenn. 1974).

Where the plaintiff had reached his maximum recovery for temporary total disability, it was proper to cut off benefits on that date rather than on the date of the final decree for permanent disability. Gouger v. American Mut. Ins. Co., 548 S.W.2d 296 (Tenn. 1974).

A “temporary total disability” exists while the injured employee is disabled to work by his injury and until he recovers as far as the nature of his injury permits. Simpson v. Satterfield, 564 S.W.2d 953, 1978 Tenn. LEXIS 543 (Tenn. 1978).

To make out a prima facie case of temporary total disability, an employee must prove (1) total disability to work by a compensable injury, (2) causal connection between the injury and the inability to work, and (3) duration of the period of disability. Simpson v. Satterfield, 564 S.W.2d 953, 1978 Tenn. LEXIS 543 (Tenn. 1978).

20. —Revival of Benefits.

Temporary total disability benefits which are terminated because of a nominal return to work may be revived when: (1) The employee is no longer capable of performing either that job or any other job because of the work-related injury; and (2) The employee, at the time of resignation, has yet to reach maximum medical improvement from the original accidental injury. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 2000 Tenn. LEXIS 298 (Tenn. 2000).

Record does not support the trial court's judgment granting temporary total disability benefits for the period of November 2, 2000 to October of 2002. The employee testified that he had intended to return to work following surgery on his left shoulder but that his position with the employer had been terminated; he then started his own tool-sharpening business in November of 2000 because he needed money to pay his living expenses but he gave up said business in October 2002, not because he was unable to work, but because the business was unprofitable. Gray v. Cullom Mach., Tool & Die, Inc., 152 S.W.3d 439, 2004 Tenn. LEXIS 1116 (Tenn. 2004).

21. Permanent Partial Disability.

Subdivision (3) is in no way connected with or related to subdivision (4). Wilkinson v. Johnson City Shale Brick Corp., 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1927 Tenn. LEXIS 130 (1928), modified, 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1928 Tenn. LEXIS 243 (1928); Liberty Mut. Ins. Co. v. Maxwell, 164 Tenn. 1, 46 S.W.2d 67, 1931 Tenn. LEXIS 1 (1932).

The basis of the test whether the award is to be based on statutory limitations for the loss of a specific member, or to be estimated on the impairment of earning capacity depends arbitrarily on the actual injury. Plumlee v. Maryland Casualty Co., 184 Tenn. 497, 201 S.W.2d 664, 1947 Tenn. LEXIS 402 (1947).

Employee who broke left hip and, as result of injury, sustained a shortened left leg, injury to socket, and pain in back was not entitled to an award based on percentage of difference in wage at time of injury and what she was able to earn after the injury where she earned same wages following her return to work as earned prior to injury, since there was no difference in wages earned, but she was entitled to a determination as to permanent loss of use of leg or partial loss of use of leg. Southern Mfg. Co. v. Wade, 188 Tenn. 398, 219 S.W.2d 901, 1949 Tenn. LEXIS 351 (1949).

Where plaintiff's injury was alleged to be permanent partial disability to his left leg, and since this was a specific loss, the court could not make an award for injuries to the body as a whole under subdivision (3). Dalton v. Bahnson Service Co., 302 F. Supp. 391, 1969 U.S. Dist. LEXIS 9856 (E.D. Tenn. 1969).

Where an employee sustained a back injury resulting in 30 percent medical disability and preventing him from continuing his employment which involved heavy lifting, but he was able to secure employment in a filling station at 85 percent of his previous pay, as a matter of law he was not totally and permanently disabled within the meaning of subdivision (4)(B) and sustained only permanent partial disability the extent of which should have been determined by the trial court. American Lava Corp. v. Savena, 493 S.W.2d 77, 1973 Tenn. LEXIS 497 (Tenn. 1973).

Where testimony showed that employee was incapable of resuming physical labor, evidence was sufficient to support award of 80 percent permanent partial disability to arm, despite expert witnesses' maximum disability rating of 45 percent. U. S. Pipe & Foundry Co. v. Caraway, 546 S.W.2d 215, 1977 Tenn. LEXIS 516 (Tenn. 1977).

This section provides that permanent partial disability shall be apportioned to the body as a whole, which has a value of 400 weeks, and the amount to be paid is 662/3 percent of the employee's weekly salary, subject to a maximum of $100 per week. Williams v. Ryder Truck Lines, Inc., 489 F. Supp. 430, 1979 U.S. Dist. LEXIS 8178 (E.D. Tenn. 1979).

In determining what may constitute permanent partial disability, many pertinent factors should be considered, including the skills, education and training of the employee as well as job opportunities and other factors bearing upon employability. In determining the sufficiency of the evidence to support a finding of disability under the Workers' Compensation Act, T.C.A. § 50-6-201 et seq., once permanency and causation are established by medical testimony, the extent of such disability may be determined from lay testimony and from other evidence as well as from medical evidence. Bailey v. Knox County, 732 S.W.2d 597, 1987 Tenn. LEXIS 1006 (Tenn. 1987).

One suffering from work-related, permanent partial disability is entitled to compensation for the partial loss of the use of the scheduled member of his body without regard to his loss of earning power or wages. Oliver v. State, 762 S.W.2d 562, 1988 Tenn. LEXIS 250 (Tenn. 1988).

Employee injured in March 1965 was entitled to benefits under T.C.A. § 50-6-207(3), the benefits to be established on the basis of the law in effect in March of 1965. Oliver v. State, 762 S.W.2d 562, 1988 Tenn. LEXIS 250 (Tenn. 1988).

Where the record demonstrated that claimant was a 52 year-old man with a GED diploma and substantial experience as a truck driver, heavy equipment operator, and an asphalt plant operator, and lay testimony from claimant and his wife indicated that although he was unable to return to his former job, or perform yard work he had engaged in before the injury, he was still capable of performing light work activities and driving a truck, the evidence preponderated against the trial court's finding of 100 percent total permanent disability, and the supreme court modified the award of benefits to 75 percent permanent partial disability to the body as a whole. Henson v. Lawrenceburg, 851 S.W.2d 809, 1993 Tenn. LEXIS 147 (Tenn. 1993).

The law is settled that awards for permanent partial disability to the body as a whole and awards for permanent total disability are controlled by T.C.A. § 50-6-207(4)(A)(i) when the employee is over the age of sixty when the injury occurs. Tucker v. Foamex, 31 S.W.3d 241, 2000 Tenn. LEXIS 617 (Tenn. 2000).

For an employee who is not over the age of sixty (60) on the date of his injury but is within 400 weeks of the day he turns sixty-five (65) when benefits for permanent partial disability to the body as whole become payable, T.C.A. § 50-6-207(4)(A)(i) does not limit an award for permanent partial disability to the body as a whole to benefits payable only until the employee turns sixty-five (65); rather, in such cases, the award is determined pursuant to T.C.A. § 50-6-207(3)(F). Tucker v. Foamex, 31 S.W.3d 241, 2000 Tenn. LEXIS 617 (Tenn. 2000).

Permanent partial disability awards are properly calculated at 400 weeks, with a “cap” at 260 weeks for employees over age 60. Peace v. Easy Trucking Co., 38 S.W.3d 526, 2001 Tenn. LEXIS 85 (Tenn. 2001).

The schedule of compensation under T.C.A. § 50-6-207 is to be determined without regard to a loss of earning power or wages; accordingly, employee's voluntary retirement does not preclude compensation benefits for an injury arising out of and in the course of employment. Mackie v. Young Sales Corp., 51 S.W.3d 554, 2001 Tenn. LEXIS 759 (Tenn. 2001).

As the impairment classification “100 percent permanently partially disabled” did not exist in the statutes or case law, and the employee sustained serious permanent injuries including metal rods being placed in his spine, limited use of one foot due to nerve damage, limited range of motion in his hip, and the inability to perform any job that required him to sit or stand for more than one hour, the employee was re-classified as being 100 percent permanently and totally disabled. Vinson v. UPS, 92 S.W.3d 380, 2002 Tenn. LEXIS 706 (Tenn. 2002).

Where reflex sympathetic dystrophy affects a scheduled member alone, an award of permanent disability benefits is limited exclusively to what the schedule for that member provides, and for reflex sympathetic dystrophy to be properly apportioned to the body as a whole, the claimant's injury must affect a portion of the body not statutorily scheduled, affect a particular combination of members not statutorily provided for, or cause a permanent injury to an unscheduled portion of the body; therefore, the trial court's holding that the RSD in the employee's left arm had to be apportioned to the body as a whole because the AMA Guides so provided, regardless of whether the claimant had otherwise satisfied the requirements for an award to the body as a whole, was reversed. Dotson v. Rice-Chrysler-Plymouth-Dodge, Inc., 160 S.W.3d 495, 2005 Tenn. LEXIS 221 (Tenn. 2005).

Employee was entitled to a permanent partial disability award for total loss of his left arm as a scheduled member, T.C.A. § 50-6-207(3)(A)(ii)(m ), and was limited exclusively to the 200 weeks provided for total loss of an arm as a scheduled member; the employee's injury did not qualify for an award to the body as a whole. Dotson v. Rice-Chrysler-Plymouth-Dodge, Inc., 160 S.W.3d 495, 2005 Tenn. LEXIS 221 (Tenn. 2005).

Court erred in calculating the benefits for a disfiguring scar as an award to the body as whole under T.C.A. § 50-6-207(3)(F); injuries for disfigurement were governed by § 50-6-207(3)(E) and the claimant, who had a permanent scar and could no longer continuously wear a hard hat, had a twenty percent vocational disability due to the decrease in her earning power. Layman v. Vanguard Contrs., 183 S.W.3d 310, 2006 Tenn. LEXIS 5 (Tenn. 2006).

Where the employee of a nursing home was injured in an automobile accident on the way to a training facility, the trial court awarded the employee ninety-five percent permanent partial disability. A doctor opined that the employee could work at a sedentary job, and the rehabilitation counselor testified that the employee was between seventy-seven percent and ninety-five percent vocationally disabled; the employee was not entitled to permanent total disability. Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 2006 Tenn. LEXIS 301 (Tenn. 2006).

Evidence did not preponderate against the trial court's finding of twenty-two and one half percent permanent partial disability because, by assigning a medical impairment rating and imposing physical limitations, the treating physician credited the claimant's subjective complaints of pain; more importantly, the trial court observed the claimant in the courtroom and heard her testify and the court was well aware that the claimant had provided false deposition testimony concerning her employment status. Bryant v. Baptist Health Sys. Home Care of East Tennessee, 213 S.W.3d 743, 2006 Tenn. LEXIS 1144 (Tenn. Dec. 21, 2006).

22. —Injury After Award of Maximum Benefits.

The monetary limitation for permanent total disability related only to the amount paid for the first injury and did not preclude a subsequent award for permanent partial disability where employee again became employable and was again injured while on the job. Industrial Carving Co. v. Hurst, 223 Tenn. 469, 447 S.W.2d 871, 1969 Tenn. LEXIS 434 (1969).

Employee who had been adjudged permanently and totally disabled as result of back injury and had received full benefits was entitled to additional permanent partial benefits where he was subsequently again employable and injured on the job while operating furniture machinery. Industrial Carving Co. v. Hurst, 223 Tenn. 469, 447 S.W.2d 871, 1969 Tenn. LEXIS 434 (1969).

23. —Injuries to Members Specifically Scheduled.

Compensation for loss of use shall be in lieu of compensation for the loss of the member itself. Jack v. Knoxville Fertilizer Co., 154 Tenn. 292, 289 S.W. 500, 1926 Tenn. LEXIS 126 (1926).

Provision of subdivision (3) that the compensation in and by the schedule provided shall be in lieu of all other compensation will not be construed to prevent allowance for temporary total disability suffered by one whose permanent loss is covered by the schedule, since such construction would do violence to the spirit of the statute as a whole and often defeat its purpose. Jack v. Knoxville Fertilizer Co., 154 Tenn. 292, 289 S.W. 500, 1926 Tenn. LEXIS 126 (1926).

It is the loss of the use of a member rather than injury to the member itself for which the compensation scheduled in subdivision (3) is provided. Tennessee Products Corp. v. Atterton, 182 Tenn. 110, 184 S.W.2d 371, 1945 Tenn. LEXIS 203 (1945).

In enacting the Workers' Compensation Law the general assembly intended to do away with all controversies as to the fact and degree of disability resulting from injuries to specific members set out in this section, by allowing a specific number of weeks for loss of each of the specified members, these numbers of weeks to be in lieu of all other compensation. In other words, as to losses of specific members, the general assembly itself determined the disability suffered by the employee as a result of the loss of each member or a combination of two members, as specified in the statute. White v. Tennessee Coach Co., 184 Tenn. 158, 197 S.W.2d 795, 1946 Tenn. LEXIS 276 (1946).

Scheduled compensation for specific injury is in the nature of damages or indemnity for physical or functional loss and is to be awarded even though there is no loss of earning power or wages and without regard to the extent of the disability suffered. Shores v. Shores, 217 Tenn. 96, 395 S.W.2d 388, 1965 Tenn. LEXIS 522 (1965); Industrial Coated Products, Inc. v. Buchanan, 224 Tenn. 69, 450 S.W.2d 566, 1970 Tenn. LEXIS 302 (1970).

If there is an injury to a specified member under the statute and not to any other part of the body, the compensation awarded for injury to such scheduled member is binding. Chapman v. Clement Bros., Inc., 222 Tenn. 223, 435 S.W.2d 117, 1968 Tenn. LEXIS 428 (1968); Industrial Coated Products, Inc. v. Buchanan, 224 Tenn. 69, 450 S.W.2d 566, 1970 Tenn. LEXIS 302 (1970).

If the injury is solely to a scheduled member award cannot be made on the basis of injuries to the body as a whole. Chapman v. Clement Bros., Inc., 222 Tenn. 223, 435 S.W.2d 117, 1968 Tenn. LEXIS 428 (1968).

The general assembly has made specific provision for awarding compensation for injury to or loss of scheduled members and it will be assumed that the general assembly was aware of the concomitant pain, suffering and the like normally attendant upon impact injury. Murray Oil Mfg. Co. v. Yarber, 223 Tenn. 404, 446 S.W.2d 256, 1969 Tenn. LEXIS 426 (1969).

Where loss was to first phalange of the finger, a scheduled injury, award could not be assessed to the entire finger. Industrial Coated Products, Inc. v. Buchanan, 224 Tenn. 69, 450 S.W.2d 566, 1970 Tenn. LEXIS 302 (1970).

It is evident that the last sentence of subdivision (3) was added by the general assembly to prevent the awarding of compensation based on a percentage disability to the body as a whole if the injury was limited to a scheduled member of the body. Federal Copper & Aluminum Co. v. Wright, 504 S.W.2d 957, 1974 Tenn. LEXIS 426 (Tenn. 1974).

Where the only injury is to a schedule member, schedule benefits are exclusive and prohibit an award of permanent partial disability to the body as a whole. Genesco, Inc. v. Creamer, 584 S.W.2d 191, 1979 Tenn. LEXIS 454 (Tenn. 1979); Thompson v. Leon Russell Enterprises, 834 S.W.2d 927, 1992 Tenn. LEXIS 485 (Tenn. 1992).

A worker does not have to show vocational disability or loss of earning capacity to be entitled to the benefits for the loss of use of a scheduled member. Duncan v. Boeing Tennessee, Inc., 825 S.W.2d 416, 1992 Tenn. LEXIS 200 (Tenn. 1992).

Vocational disability evidence is admissible as one factor to determine the loss of use of a scheduled member. Duncan v. Boeing Tennessee, Inc., 825 S.W.2d 416, 1992 Tenn. LEXIS 200 (Tenn. 1992).

Although a permanent partial, scheduled injury can be converted, via the American Medical Association Guides to the Evaluation of Permanent Impairment or the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment, to a percentage disability to the body as a whole, there is no basis upon which to sustain an award to the body as a whole under Tennessee Workers' Compensation Law, T.C.A. § 50-6-201 et seq.Thompson v. Leon Russell Enterprises, 834 S.W.2d 927, 1992 Tenn. LEXIS 485 (Tenn. 1992).

24. — —Incapacity and Loss of Earning Power — Effect.

Scheduled compensation for scheduled injuries should not be cut down by reason of the fact that, after the injury, the injured employee did earn some wages. It is necessary to look to such earnings only when the permanent partial disability is not included in the schedule. Casteel v. Aluminum Co. of America, 161 Tenn. 407, 33 S.W.2d 61, 1930 Tenn. LEXIS 20 (1930). See also Gregg v. New Careyville Coal Co., 161 Tenn. 350, 31 S.W.2d 693, 1930 Tenn. LEXIS 11 (1930); Davenport Silk Mills v. Dillinger, 163 Tenn. 402, 43 S.W.2d 493, 1931 Tenn. LEXIS 129 (1931).

One entitled to an award as provided by the schedules is entitled to the amount so specified even though no degree of incapacity results. Catlett v. Chattanooga Handle Co., 165 Tenn. 343, 55 S.W.2d 257, 1932 Tenn. LEXIS 56 (1932).

Where the injury is confined to the loss of a single member of the body compensation is limited to the sum which the statute provides for such loss regardless of the earning capacity of the injured employee. Huggins v. B. C. Jarrell & Co., 169 Tenn. 77, 82 S.W.2d 870, 1935 Tenn. LEXIS 18 (1935), rehearing denied, 169 Tenn. 77, 84 S.W.2d 100 (1935); Phillips v. Diamond Coal Mining Co., 175 Tenn. 191, 133 S.W.2d 476, 1939 Tenn. LEXIS 29 (1939); Coker v. Armco Drainage & Metal Products Co., 192 Tenn. 10, 236 S.W.2d 980, 1951 Tenn. LEXIS 375 (1951).

The fact that the employee was earning more after his injury than at the time of injury did not deprive such employee of the right to compensation for a 10 percent permanent injury to his leg. Crane Enamelware Co. v. Crawley, 180 Tenn. 272, 174 S.W.2d 458 (1943).

Scheduled compensation for scheduled injuries must be paid where there is a loss of the scheduled member or a partial loss of use of the scheduled member. Earnings of the employee after the loss of such a member or the partial loss of use of such member are not taken into account. Crane Enamelware Co. v. Crawley, 180 Tenn. 272, 174 S.W.2d 458 (1943); Standard Glass Co. v. Wallace, 189 Tenn. 213, 225 S.W.2d 35, 1949 Tenn. LEXIS 417 (1949). See New Jellico Coal Co. v. Gilburth, 187 Tenn. 606, 216 S.W.2d 329, 1948 Tenn. LEXIS 473 (1948).

An injury to employee obstructed a tear duct, so that matter or condensed tears formed in the eye and affected its movements. It appeared that the employee was earning more money since he returned to work than he was before and it was insisted that he was entitled to no recovery at all. The chancellor concluded that the employee had suffered a 331/3 percent loss of the use of his eye and made an appropriate award. The decree was affirmed. Tennessee Products Corp. v. Atterton, 182 Tenn. 110, 184 S.W.2d 371, 1945 Tenn. LEXIS 203 (1945).

The rule with regard to claims arising for partial permanent disability is if the entire member is lost, the employee is entitled to the statutory amount, but if the loss of the member be partial, the award is based on the actual impairment of earning capacity. Plumlee v. Maryland Casualty Co., 184 Tenn. 497, 201 S.W.2d 664, 1947 Tenn. LEXIS 402 (1947); Hix v. Cassetty, 186 Tenn. 343, 210 S.W.2d 481, 1948 Tenn. LEXIS 555 (1948).

Woman, age 48, who for 32 years was engaged in processing of chickens, and who was struck on the head by a shackle, and by reason of the injury sustained was required to submit to an operation on the eye duct which was successful, and continued thereafter to do same type of work under strain and suffering was entitled to recover for a 50 percent permanent reduction in earning capacity. Smith v. Morristown Poultry Co., 198 Tenn. 412, 280 S.W.2d 929, 1955 Tenn. LEXIS 390 (1955).

Benefits for loss of scheduled members are payable to employee regardless of whether his earnings after injury are more or less than prior to injury. Jeffrey Mfg. Co. v. Underwood, 221 Tenn. 275, 426 S.W.2d 189, 1968 Tenn. LEXIS 462 (1968), overruled in part, Carney v. Safeco Ins. Co., 745 S.W.2d 868, 1988 Tenn. LEXIS 62 (Tenn. 1988).

25. — — —Availability of Different Type of Employment.

Award of 25 percent permanent partial disability to both hands was proper where employee was unskilled but had worked in service station for 17 years and evidence was to the effect that occupational dermatitis would improve if he entered some other line of work, but employer introduced no evidence to the effect that a different line of work was available and tendered to employee. Charnes v. Burk, 205 Tenn. 371, 326 S.W.2d 657, 1959 Tenn. LEXIS 373 (1959).

26. — —Previous Injury to Member — Effect.

Compensation for loss of an eye was recoverable for loss of an eye not wholly useless as an eye although, eight years previously, the employee had recovered from another employer compensation for permanent loss of the same eye. Williams v. S. & W. Const. Co., 167 Tenn. 84, 66 S.W.2d 992, 1933 Tenn. LEXIS 8 (1934).

Although employee had previously received compensation for loss of 90 percent of hand after loss of four fingers, where in a subsequent accident he suffered loss of thumb of same hand it was proper to award him compensation for a 100 percent loss of the hand. Tomes v. Gray & Dudley Co., 201 Tenn. 697, 301 S.W.2d 389, 1957 Tenn. LEXIS 353 (1957).

Employee's previous back injury, for which he received compensation for approximately seven to eight percent permanent disability, did not preclude an award for 25 percent permanent disability resulting from a subsequent injury to his back. Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

The policy allowing compensation in spite of a previous determination of permanent disability to the same member encourages rehabilitation and reemployment. Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

Employee who previously received workers' compensation permanent partial disability benefits was entitled to permanent partial disability benefits for a later work injury based on his medical impairment rating solely attributable to his most recent work injury, and not based on his total medical impairment rating for all work injuries. Parks v. Tennessee Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 1998 Tenn. LEXIS 355 (Tenn. 1998).

Trial court did not err in finding that the employee had a 20 percent disability based on a 10 percent medical impairment as a result of a second injury, without regard to the fact that the employee had a prior injury at this same level. Clifton v. Komatsu Am. Mfg. Corp., 38 S.W.3d 550, 2001 Tenn. LEXIS 116 (Tenn. 2001).

27. — —Agreement as to Compensation.

Agreement by insurer to make payments under Workers' Compensation Law for “a total of  weeks” was equivalent to a promise to pay the sum stipulated for such number of weeks as is provided by the compensation statute. Moore v. Hines, 170 Tenn. 456, 95 S.W.2d 928, 1936 Tenn. LEXIS 15 (1936).

28. — —Partial Loss of Member or Use of Member.

The permanent loss of part of the use of a leg is a scheduled injury for which an employee is entitled to compensation without regard to the fact that his earning capacity has not been decreased. Southern Mfg. Co. v. Wade, 188 Tenn. 398, 219 S.W.2d 901, 1949 Tenn. LEXIS 351 (1949).

29. — — —Arm.

Where use of employee's arm was impaired 85 percent, he had right to recover the specified percentage of his average weekly wages as provided by the statute, for 85 percent of 200 weeks or 170 weeks. Davenport Silk Mills v. Dillinger, 163 Tenn. 402, 43 S.W.2d 493, 1931 Tenn. LEXIS 129 (1931).

Where third finger of employee was completely severed and fourth finger was almost completely severed and operation to repair fourth finger resulted in limitation of cupping of hand and wrist and trial judge viewed the injury and its effect on the hand and arm, finding of trial judge that employee sustained 50 percent permanent partial disability was sustained. Whitaker v. Morton Frozen Foods, Inc., 201 Tenn. 425, 300 S.W.2d 610, 1957 Tenn. LEXIS 319 (1957).

“Upper left extremity” is not to be equated with “arm” for payment of benefits. Continental Ins. Cos. v. Pruitt, 541 S.W.2d 594, 1976 Tenn. LEXIS 556 (Tenn. 1976).

30. — — —Arm and Hand.

Where use of left arm and right hand were partially impaired, compensation was properly computed under the statute by reducing the time for which compensation was receivable under the act according to ratio of partial to total loss of use of each of these members, the injuries to arm and hand being distinct and resulting in separate disabilities. Knoxville Power & Light Co. v. Barnes, 156 Tenn. 184, 299 S.W. 772, 1927 Tenn. LEXIS 101 (1927), overruled, Standard Glass Co. v. Wallace, 189 Tenn. 213, 225 S.W.2d 35, 1949 Tenn. LEXIS 417 (1949), overruled in part, Standard Glass Co. v. Wallace, 189 Tenn. 213, 225 S.W.2d 35, 1949 Tenn. LEXIS 417 (1949).

31. — — —Arm and Leg.

Where there is award for 90 percent permanent partial disability for loss of use of an arm and a leg, it is not necessary that the testimony distinctly allocate the loss of the use between the two members. Liberty Mut. Ins. Co. v. Maxwell, 164 Tenn. 1, 46 S.W.2d 67, 1931 Tenn. LEXIS 1 (1932).

32. — — —Fingers or Thumb.

Employee who suffered injury to the flesh tip only of his thumb and neither the thumb or any substantial portion thereof was severed and who after his layoff resumed and continued to discharge his former duties at the same wages was not entitled to an award of permanent partial disability. Sun Coal Co. v. Epperson, 178 Tenn. 114, 156 S.W.2d 400, 1941 Tenn. LEXIS 38 (1941).

Where employee incurred a 90 percent disability to the entire thumb, an award of disability benefits for disability to the entire thumb was not erroneous. Carney v. Safeco Ins. Co., 745 S.W.2d 868, 1988 Tenn. LEXIS 62 (Tenn. 1988).

33. — — —Foot.

Compensation for the physical loss of two toes and the loss of use of two other toes could properly be awarded for loss of 75 percent of the normal use of the foot rather than for loss and loss of use of toes considered separately, this being a course more favorable to the employee. S. C. Weber Iron & Steel Co. v. Jeffery, 161 Tenn. 142, 29 S.W.2d 656, 1929 Tenn. LEXIS 42 (1930).

If a physical injury to the toes is considered as constituting a proportionate loss of use of the foot, and compensation awarded accordingly, the injured employee has received all to which he is entitled under the statute, and additional compensation may not be awarded for the loss of the toes. S. C. Weber Iron & Steel Co. v. Jeffery, 161 Tenn. 142, 29 S.W.2d 656, 1929 Tenn. LEXIS 42 (1930).

Where permanent disability consisted of loss of 75 percent of use of foot, award consisted of 75 percent of amount provided for loss of foot and could not be assessed to body as a whole. Shores v. Shores, 217 Tenn. 96, 395 S.W.2d 388, 1965 Tenn. LEXIS 522 (1965).

Where there was no competent proof to show a causal connection between injury to worker's foot and subsequent pain in his neck and back, benefits should have only been awarded for injuries to his foot. Travelers Ins. Co. v. Hatcher, 221 Tenn. 123, 425 S.W.2d 580, 1968 Tenn. LEXIS 451 (1968).

34. — — —Hand.

Where an employee sustained injuries to the fingers of his hand which required the amputation of the left index finger at the first joint, an amputation of the little finger just distal to the first joint, repaired laceration of the middle finger that extended into the first joint of the finger, severing all the flexory tendons of the finger, repaired lacerations of the tip of the ring finger and lacerations of the thumb, the evidence supported an award of 75 percent total loss of his hand and compensation should have been awarded for loss of hand regardless of whether employee's earnings after such loss decreased. Standard Glass Co. v. Wallace, 189 Tenn. 213, 225 S.W.2d 35, 1949 Tenn. LEXIS 417 (1949).

Where phalange of little finger was fractured and evidence showed that loss of use of hand was no more than that normally contributed by the little finger, claimant was entitled to recover for total loss of little finger but was not entitled to award for permanent partial disability to extent of 40 percent of his right hand. Adams Const. Co. v. Cantrell, 195 Tenn. 675, 263 S.W.2d 516, 1953 Tenn. LEXIS 394 (1953).

Where medical testimony was to the effect that worker could only use his first finger and thumb and had thereby sustained a permanent loss of the use of his right hand, finding that worker had sustained a permanent loss of the hand rather than of the fingers alone was supported by the evidence. Lambert Bros. v. Dishner, 212 Tenn. 697, 372 S.W.2d 166, 1963 Tenn. LEXIS 460 (1963).

Where plaintiff lost three fingers of his left hand and the remaining two fingers were disabled to some extent when the machine he was operating malfunctioned, and medical testimony supported an award of 95 percent permanent partial disability to his left hand, it was correct to base the award on loss of use of the hand rather than to limit recovery to the loss of the use of the amputated fingers. Federal Copper & Aluminum Co. v. Wright, 504 S.W.2d 957, 1974 Tenn. LEXIS 426 (Tenn. 1974).

Where employee sustained the loss of the distal end of the index finger and one half of the second finger of his right hand, the employee sustained an award of 50 percent permanent partial disability to the hand, because where the loss or injury to thumb or fingers results in permanent loss of the use of the hand in the practical everyday work of the employee, the commission is authorized to treat the hand as lost in fixing the compensation. Eaton Corp. v. Quillen, 527 S.W.2d 74, 1975 Tenn. LEXIS 634 (Tenn. 1975).

35. — — —Both Hands.

Award of 25 percent permanent partial disability to service station employee for occupational dermatitis of both hands was proper. Charnes v. Burk, 205 Tenn. 371, 326 S.W.2d 657, 1959 Tenn. LEXIS 373 (1959).

36. — — —Hearing.

While a single ear is not referred to, the general assembly intended to consider the ears as a member of the body and a unit, compensation to be awarded for the loss of the sense of hearing rather than for an injury to the physical structure of the ears. Diamond Coal Co. v. Jackson, 156 Tenn. 179, 299 S.W. 802, 1927 Tenn. LEXIS 100 (1927).

Compensation for injury to ear resulting in permanent partial loss of power of hearing was properly awarded as provided in this section. Diamond Coal Co. v. Jackson, 156 Tenn. 179, 299 S.W. 802, 1927 Tenn. LEXIS 100 (1927).

The word “member”, as used in this section, includes all of the several parts of the body enumerated in the schedule of disabilities in this section, so that loss of hearing in one ear may be considered as loss of use of member. Diamond Coal Co. v. Jackson, 156 Tenn. 179, 299 S.W. 802, 1927 Tenn. LEXIS 100 (1927).

For injury to an ear, the effect of the injury on the sense of hearing is the test or measure of the compensation to be awarded. Diamond Coal Co. v. Jackson, 156 Tenn. 179, 299 S.W. 802, 1927 Tenn. LEXIS 100 (1927).

Evidence was sufficient to support finding of complete permanent loss of hearing in one ear. T. H. Mastin & Co. v. Loveday, 202 Tenn. 589, 202 Tenn. 598, 308 S.W.2d 385, 1957 Tenn. LEXIS 444 (1957), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Both ears are dealt with as a unit under this section and compensation is for loss of the use of the power of sense of hearing rather than for an injury to the physical structure of the ear. H. K. Ferguson Co. v. Kirk, 208 Tenn. 87, 343 S.W.2d 900, 1961 Tenn. LEXIS 398 (1960).

Employee who had prior loss of hearing of 15 percent in right ear who subsequently sustained 15 percent loss of hearing in left ear from injury arising out of and in course of employment was entitled to compensation for 15 percent loss of power of hearing rather than for seven and one half percent loss of hearing. H. K. Ferguson Co. v. Kirk, 208 Tenn. 87, 343 S.W.2d 900, 1961 Tenn. LEXIS 398 (1960).

In calculating a workers'  compensation award under the statutory schedule for hearing loss provided by T.C.A. § 50-6-207(3)(A)(ii)(r), a trial court improperly discounted the employee's significant hearing loss. There was testimony that the employee had difficulty communicating face-to-face, which affected his ability to compete in the open market. Lang v. Nissan North America, Inc., 170 S.W.3d 564, 2005 Tenn. LEXIS 659 (Tenn. Aug. 16, 2005).

37. — — —Leg.

Where an employee sustained a compound fracture of the thigh, losing 80 percent of the total use of his leg, compensation is to be determined as for a permanent partial disability due to injury to a member, resulting in less than total loss of the use. Casey-Hedges Co. v. Lynch, 147 Tenn. 173, 245 S.W. 522, 1922 Tenn. LEXIS 30 (1922).

In determining the amount of compensation to be paid for partial permanent loss of the use of a leg amounting to 80 percent of the total loss, the ratio is not to be figured on the weekly wage and the maximum applied thereto, but the compensation must be calculated by applying the maximum rate to that part of the time fixed in the schedule for the total loss of the member which the extent of the injury bears to its total loss. Casey-Hedges Co. v. Lynch, 147 Tenn. 173, 245 S.W. 522, 1922 Tenn. LEXIS 30 (1922).

Where evidence showed that employee had sustained a partial permanent loss of use of his leg amounting to 25 percent, he was entitled to compensation for same regardless of the fact that his earnings were the same after return to work. New Jellico Coal Co. v. Gilburth, 187 Tenn. 606, 216 S.W.2d 329, 1948 Tenn. LEXIS 473 (1948).

38. —Injuries to Eyes.

Compensation for 50 percent impairment of use of both eyes was computed under the provisions of subdivision (3) relating to injury to a member resulting in less than total use of such member. Wilkinson v. Johnson City Shale Brick Corp., 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1927 Tenn. LEXIS 130 (1928), modified, 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1928 Tenn. LEXIS 243 (1928).

Though an old injury to an eye had greatly impaired its usefulness but had not rendered it wholly useless as an eye, subsequent injury thereto resulting in removal of the ball falls within schedule award for loss of an eye without deductions for prior injury. Shelbyville v. Kendrick, 161 Tenn. 149, 29 S.W.2d 251, 1929 Tenn. LEXIS 43 (1930).

An employee who, as result of disease, was entirely blind in one eye prior to employment and who suffered loss of the other sound eye is entitled to compensation for loss of but one eye. Catlett v. Chattanooga Handle Co., 165 Tenn. 343, 55 S.W.2d 257, 1932 Tenn. LEXIS 56 (1932).

The partial loss of the use of an eye or eyes is not measured by the rule cited in subdivision (3)(F), pertaining to “all other cases of permanent partial disability not above enumerated,” but by the “enumerated” cases. Huggins v. B. C. Jarrell & Co., 169 Tenn. 77, 82 S.W.2d 870, 1935 Tenn. LEXIS 18 (1935), rehearing denied, 169 Tenn. 77, 84 S.W.2d 100 (1935).

In awarding compensation for loss of an eye, it is immaterial whether the employee's wages were diminished as a result of the injury. Huggins v. B. C. Jarrell & Co., 169 Tenn. 77, 82 S.W.2d 870, 1935 Tenn. LEXIS 18 (1935), rehearing denied, 169 Tenn. 77, 84 S.W.2d 100 (1935).

Where employee's vision was obstructed as result of injury to nose preventing drainage from the eye, an award for permanent partial loss of use of the eye to extent of 331/3 percent was justified though employee suffered no loss in wages. Tennessee Products Corp. v. Atterton, 182 Tenn. 110, 184 S.W.2d 371, 1945 Tenn. LEXIS 203 (1945).

Where trial court found as a fact that employee suffered a 40 percent loss of visual efficiency in her right eye based on uncorrected vision and such award was supported by material evidence award would be sustained. Aerosol Corp. of South v. Johnson, 222 Tenn. 339, 435 S.W.2d 832, 1968 Tenn. LEXIS 435 (1968).

39. — —“Practical” Destruction of Sight.

Loss of all but two and one half percent of vision, with possibility of increase to seven and one half percent by use of corrective glasses, is a “practical” destruction of sight. American Zinc Co. v. Lusk, 148 Tenn. 220, 255 S.W. 39, 1923 Tenn. LEXIS 10 (1923).

40. — —Permanent Loss of Sight of Both Eyes.

Such a degree of permanent loss of the sight of both eyes as totally incapacitates one from work at an income yielding occupation which requires the use of eyesight constitutes total permanent disability under this section as it stood prior to amendment. American Zinc Co. v. Lusk, 148 Tenn. 220, 255 S.W. 39, 1923 Tenn. LEXIS 10 (1923).

41. —Mental Faculties.

Because plaintiff's mental injury, which resulted from being robbed at gun point, pertained to a scheduled member under former T.C.A. § 50-6-207(3)(A)(ii)(ff ), her vocational disability could not be adjudged as permanent and total under the workers' compensation laws. Ivey v. Trans Global Gas & Oil, 3 S.W.3d 441, 1999 Tenn. LEXIS 424, 84 A.L.R.5th 761 (Tenn. 1999).

Employee was awarded permanent partial disability of 20 percent to the body as a whole because the limitations period contained in T.C.A. § 50-6-203 did not bar the employee's claim for workers'  compensation benefits; the evidence did not preponderate against the trial court's finding that an employee could not have reasonably known or discovered that his post-traumatic stress disorder symptoms were related to work activities until his diagnosis. Gerdau Ameristeel, Inc. v. Ratliff, 368 S.W.3d 503, 2012 Tenn. LEXIS 401 (Tenn. June 7, 2012).

42. —Permanent Partial Disability for Injuries Not Scheduled.

Combined injury to leg, hip and back produced permanent partial disability, not enumerated in the statute, which was compensable under last paragraph of subdivision (3)(F) rather than distinct disabilities merging major into minor disability and warranting compensation only for permanent partial disability in the use of leg. Bon Air Coal & Iron Corp. v. Johnson, 153 Tenn. 255, 283 S.W. 447, 1925 Tenn. LEXIS 26 (1926).

Subdivision (3) governs case of permanent partial disability from dislocation of kidney. Russell v. Big Mountain Collieries, 156 Tenn. 193, 299 S.W. 798, 1927 Tenn. LEXIS 102 (1927).

Where there is no specific method of computing disability, the computation shall be under subdivision (3)(F). Russell v. Big Mountain Collieries, 156 Tenn. 193, 299 S.W. 798, 1927 Tenn. LEXIS 102 (1927).

For 50 percent permanent impairment of use of both eyes of employee as well as his mind, which reduced employee's earning capacity 50 percent, compensation was awarded under subdivision (3)(F). Wilkinson v. Johnson City Shale Brick Corp., 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1927 Tenn. LEXIS 130 (1928), modified, 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1928 Tenn. LEXIS 243 (1928).

Where a petitioner whose usual work is ordinary manual labor has been permanently disabled for doing such usual strenuous work but not for doing light work of a general nature, the proper award is for permanent partial disability. Walker v. Blue Ridge Glass Corp., 165 Tenn. 287, 54 S.W.2d 722, 1932 Tenn. LEXIS 48 (1932).

Laborer, who as result of blow to his rib while working felt increasing pain and shortness of breath which doctors testified was due to adhesions caused by the blow, and who was required to do lighter work and finally was unable to work at manual labor was entitled to recover full amount payable for permanent partial disability. King & Mize Lumber Co. v. Houk, 186 Tenn. 63, 208 S.W.2d 342, 1948 Tenn. LEXIS 518 (1948).

Award for permanent partial disability was reduced from a period of 400 weeks to 300 weeks, as provided in subdivision (3). Miller v. Fentress Coal & Coke Co., 190 Tenn. 670, 231 S.W.2d 343, 1950 Tenn. LEXIS 533 (1950).

Award for 75 percent partial disability to back was justified where evidence showed that following injury to back he was unable to plow or chop with a hoe on his farm where previously he was able to plow and engage in general cultivation of his farm. Rhyne v. Lunsford, 195 Tenn. 664, 263 S.W.2d 511, 1953 Tenn. LEXIS 418 (1953).

A compensable back injury resulting in permanent partial disability is controlled by subdivision (3)(F) dealing with cases of permanent disability not otherwise enumerated. Shaw v. Firestone Tire & Rubber Co., 199 Tenn. 555, 288 S.W.2d 433, 1956 Tenn. LEXIS 352 (1956).

Where compensation was based on 50 percent permanent partial disability to the body as a whole, the employee was entitled to compensation under subdivision (3) at 60 percent of his weekly wages subject to the statutory maximum and minimum for 50 percent of the maximum of 300 weeks provided by that subdivision, or 150 weeks. Hooper v. Young Sales Corp., 199 Tenn. 629, 288 S.W.2d 703, 1956 Tenn. LEXIS 363 (1956); Bituminous Casualty Corp. v. Smith, 200 Tenn. 13, 288 S.W.2d 913, 1956 Tenn. LEXIS 372 (1956).

Where plaintiff received benefits for temporary total disability prior to the 1953 amendment of this section, he could not thereafter, although it was then after the 1953 amendment went into effect, recover benefits for permanent partial disability to the body as a whole. Franklin v. Travelers Ins. Co., 155 F. Supp. 746, 1957 U.S. Dist. LEXIS 3012 (D. Tenn. 1957).

Speech defect resulting from head injury was compensable. F. Perlman & Co. v. Ellis, 219 Tenn. 373, 410 S.W.2d 166, 1966 Tenn. LEXIS 536 (1966).

Where employee suffered injury to foot and allegedly developed arthritis as result of such injury, arthritis constituted part of injury to foot and pain allegedly resulting from the arthritis did not constitute an unscheduled injury. Murray Oil Mfg. Co. v. Yarber, 223 Tenn. 404, 446 S.W.2d 256, 1969 Tenn. LEXIS 426 (1969).

Rotator cuff injury cannot be ascribed to the arm and must be considered as an injury to the whole body pursuant to subdivision (3)(F) of T.C.A. § 50-6-207. Advo, Inc. v. Phillips, 989 S.W.2d 693, 1998 Tenn. LEXIS 630 (Tenn. Special Workers' Comp. App. Panel 1998).

Claimant was entitled to benefits based on a percentage of disability to the body as a whole because the schedule did not include shoulder injuries. Frazier v. Bridgestone/Firestone, Inc., 67 S.W.3d 782, 2001 Tenn. LEXIS 805 (Tenn. 2001), aff'd, — S.W.3d —, 2001 Tenn. LEXIS 806 (Tenn. Oct. 19, 2001).

43. —Disfigurement.

The loss of permanent teeth does not, per se, entitle a claimant to permanent partial disability payments, but it may be considered under the disfigurement section of the statute. Nichols v. Armour & Co., 223 Tenn. 569, 448 S.W.2d 423, 1969 Tenn. LEXIS 443 (1969).

A disfiguring injury is compensable where it and another injury are distinct and at different locations, but it is not compensable where it and some other injury result from the same accident at the same point on the body. Owens v. Vulcan Materials Co., 503 S.W.2d 87, 1973 Tenn. LEXIS 429 (Tenn. 1973).

Where the evidence was uncontradicted that the presence of the scar had caused the employee to become self-conscious to the point that he had attempted to conceal it with a beard, and that his interaction with coworkers and participation in work activities had suffered, such evidence supported the trial court's award of permanent partial disability made pursuant to the disfigurement statute. Wilkes v. Resource Auth., 932 S.W.2d 458, 1996 Tenn. LEXIS 591 (Tenn. 1996).

44. — —Injuries to Body as a Whole.

Where the injured member is not actually lost, but injuries are greater than the loss of such member would have been, the provisions of subdivision (3) relating to apportionment to the body as a whole are applicable. Fidelity & Casualty Co. v. Patterson, 204 Tenn. 673, 325 S.W.2d 258, 1959 Tenn. LEXIS 326 (1959).

The 1953 amendment to subdivision (3) whereby “the body as a whole” is given a specific value in weeks is made a part of the schedule for permanent partial disability. Fidelity & Casualty Co. v. Patterson, 204 Tenn. 673, 325 S.W.2d 258, 1959 Tenn. LEXIS 326 (1959); United States Fidelity & Guaranty Co. v. Townsend, 206 Tenn. 592, 335 S.W.2d 830, 1960 Tenn. LEXIS 398 (1960); American Surety Co. v. Kizer, 212 Tenn. 328, 369 S.W.2d 736, 1963 Tenn. LEXIS 426 (1963).

If an employee receives an injury that is enumerated in the statute and this injury affects his body as a whole, a recovery may be had for either total permanent disability or permanent partial disability. Claude Henninger Co. v. Bentley, 205 Tenn. 241, 326 S.W.2d 446, 1959 Tenn. LEXIS 359 (1959); United States Fidelity & Guaranty Co. v. Townsend, 206 Tenn. 592, 335 S.W.2d 830, 1960 Tenn. LEXIS 398 (1960).

Trial court could properly make award on basis of permanent partial disability to body as a whole where evidence supported finding that injuries to heel and foot carried over and affected the body as a whole. Claude Henninger Co. v. Bentley, 205 Tenn. 241, 326 S.W.2d 446, 1959 Tenn. LEXIS 359 (1959).

Where injury to right knee of nurse's aide forced her retirement and rendered her permanently incapable of following any gainful employment which she otherwise had the ability to perform, disability of leg resulted in disability of body as a whole and trial court's finding of 75 percent disability of body as a whole was proper where supported by evidence. United States Fidelity & Guaranty Co. v. Townsend, 206 Tenn. 592, 335 S.W.2d 830, 1960 Tenn. LEXIS 398 (1960).

Where prior to back injury in course of employment employee was able to perform her work to the satisfaction of employer, notwithstanding  back condition, award of permanent partial compensation would not be reduced by reason of  condition. Laughlin Clinic, Inc. v. Henley, 208 Tenn. 252, 345 S.W.2d 675, 1961 Tenn. LEXIS 418 (1961).

There may be a finding of permanent disability to the body as a whole even though there is a specific statutory loss of a member. W. S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493, 1961 Tenn. LEXIS 323 (1961); but see General Guaranty Ins. Co. v. Scudginton, 213 Tenn. 532, 376 S.W.2d 464, 1964 Tenn. LEXIS 420 (1964).

The 1953 amendment had the effect of placing permanent partial loss of the use of the body in the schedule wherein specific amounts are fixed for the whole or partial loss of a given member of the body, or for its use, and without regard to the effect of such loss upon subsequent earning power of the injured employee. American Surety Co. v. Kizer, 212 Tenn. 328, 369 S.W.2d 736, 1963 Tenn. LEXIS 426 (1963).

Where employee's only injury was loss of parts of fingers and thumb and he received scheduled compensation therefor, he was not entitled to additional compensation for permanent partial disability to the body as a whole. General Guaranty Ins. Co. v. Scudginton, 213 Tenn. 532, 376 S.W.2d 464, 1964 Tenn. LEXIS 420 (1964).

The statute does not authorize the award of a recovery for permanent partial disability to the body as a whole in addition to the award for the loss of a specific member where the only injury is the loss of the member. General Guaranty Ins. Co. v. Scudginton, 213 Tenn. 532, 376 S.W.2d 464, 1964 Tenn. LEXIS 420 (1964).

Where partial loss of foot and toes was specifically scheduled, award could not, under the 1963 amendment, be awarded to the body as a whole. Shores v. Shores, 217 Tenn. 96, 395 S.W.2d 388, 1965 Tenn. LEXIS 522 (1965).

Where evidence supported finding of trial court that petitioner suffered not only loss of hearing, which was a scheduled loss but also speech impairment, dizziness and severe headaches, which were unscheduled injuries, there was a proper basis for an award for permanent partial disability to the body as a whole. F. Perlman & Co. v. Ellis, 219 Tenn. 373, 410 S.W.2d 166, 1966 Tenn. LEXIS 536 (1966).

If the injury to a specific member is so serious that it totally and permanently disables the employee, he is entitled to have his benefits fixed on the basis of injury to the body as a whole rather than to the specific member. Cummings v. Royal Indem. Co., 264 F. Supp. 189, 1967 U.S. Dist. LEXIS 7260 (E.D. Tenn. 1967).

Where an injury to a scheduled member produces an unusual and extraordinary condition affecting other members of the body, the compensation is not necessarily limited to loss of the injured member. Jeffrey Mfg. Co. v. Underwood, 221 Tenn. 275, 426 S.W.2d 189, 1968 Tenn. LEXIS 462 (1968), overruled in part, Carney v. Safeco Ins. Co., 745 S.W.2d 868, 1988 Tenn. LEXIS 62 (Tenn. 1988).

Where under the proof employee's injury is for a specific scheduled loss, the courts are not authorized to award injuries to the body as a whole. Travelers Ins. Co. v. Hatcher, 221 Tenn. 123, 425 S.W.2d 580, 1968 Tenn. LEXIS 451 (1968).

Where workman had hand smashed and sustained loss of three fingers and medical testimony supported finding of 95 percent permanent partial disability to hand, the 1963 amendment, which was added to prevent awarding of compensation based on percentage of disability to the body as a whole if the injury was limited to a scheduled member, was not applicable. Federal Copper & Aluminum Co. v. Wright, 504 S.W.2d 957, 1974 Tenn. LEXIS 426 (Tenn. 1974).

A torn rotator cuff is not an injury specifically provided for in subdivision (3) of T.C.A. § 50-6-207, and falls under subdivision (3)(F) of T.C.A. § 50-6-207 to be apportioned to the body as a whole. Smith v. Empire Pencil Co., 781 S.W.2d 833, 1989 Tenn. LEXIS 531 (Tenn. 1989).

Chancellor did not err in awarding permanent partial disability benefits to scheduled members rather than to the body as a whole under T.C.A. § 50-6-207(3)(F) because that subdivision applies only to disabilities “not above enumerated” and plaintiff's losses, injuries to arm and foot, are enumerated in T.C.A. § 50-6-207. Lock v. National Union Fire Ins. Co., 809 S.W.2d 483, 1991 Tenn. LEXIS 154 (Tenn. 1991), rehearing denied, — S.W.2d —, 1991 Tenn. LEXIS 189 (Tenn. 1991).

45. — —Refusal of Employment.

An indefinite offer of such employment as the employee might perform with pay for “what it's worth,” made informally during trial, is not a sufficient offer of suitable employment to meet the requirements of the statute. Arrowhead, Inc. v. Gammons, 219 Tenn. 594, 412 S.W.2d 214, 1967 Tenn. LEXIS 375 (1967).

46. —Concurrent Injuries.

The facts may show the injuries to leg, hip and back are not distinct disabilities arising from a concurrent disability which merged the major into the minor disability but a single injury afflicting the use of the body about the hip and back, causing a permanent partial disability compensable under subdivision (3)(F). Bon Air Coal & Iron Corp. v. Johnson, 153 Tenn. 255, 283 S.W. 447, 1925 Tenn. LEXIS 26 (1926).

Injuries in different degrees to two separate members are to be deemed separate and not concurrent for purpose of awards, and cannot be joined to decrease the compensation. Knoxville Power & Light Co. v. Barnes, 156 Tenn. 184, 299 S.W. 772, 1927 Tenn. LEXIS 101 (1927), overruled, Standard Glass Co. v. Wallace, 189 Tenn. 213, 225 S.W.2d 35, 1949 Tenn. LEXIS 417 (1949), overruled in part, Standard Glass Co. v. Wallace, 189 Tenn. 213, 225 S.W.2d 35, 1949 Tenn. LEXIS 417 (1949). See also S. C. Weber Iron & Steel Co. v. Jeffery, 161 Tenn. 142, 29 S.W.2d 656, 1929 Tenn. LEXIS 42 (1930).

A disfiguring injury is compensable where it and another injury are distinct and at different locations but it is not compensable where it and some other injury result from the same accident at the same point on the body. Owens v. Vulcan Materials Co., 503 S.W.2d 87, 1973 Tenn. LEXIS 429 (Tenn. 1973).

47. — —Multiple Injuries.

The provision that the employee shall receive compensation “only for the injury which produced the longest period of disability,” does not apply to multiple injuries of three or more. Griffith v. Goforth, 184 Tenn. 56, 195 S.W.2d 33, 1946 Tenn. LEXIS 260 (1946).

Multiple injuries of three or more members are not scheduled injuries under subdivision (3). Tennlite, Inc. v. Lassiter, 561 S.W.2d 157, 1978 Tenn. LEXIS 577 (Tenn. 1978).

The phrase “the injury which produced the longest period of disability” refers to the specific scheduled periods and to the provisions pertaining to the length of benefit payments for unscheduled disabilities (the body as a whole); the term “longest period of disability” does not refer to a single disability with which an employee with multiple permanent disabilities will suffer the longest. Crump v. B & P Constr. Co., 703 S.W.2d 140, 1986 Tenn. LEXIS 644 (Tenn. 1986).

The intent of subdivision (3)(C) of T.C.A. § 50-6-207 is to prevent separate compensation for a disabled scheduled member which is an essential part of a more paramount disabled scheduled member or of the body as a whole in case of an unscheduled disability. Crump v. B & P Constr. Co., 703 S.W.2d 140, 1986 Tenn. LEXIS 644 (Tenn. 1986).

48. — —Injuries to Separate Members.

Although this section does not permit adding the total number of weeks allowed for permanent partial disability to individual members, and multiplying this by the average weekly wage, yet, if it appears that the compensation for injury to two members as provided in the statutory schedule is in excess of the amount allowed for total permanent disability, the injured employee should be paid the greater amount. Griffith v. Goforth, 184 Tenn. 56, 195 S.W.2d 33, 1946 Tenn. LEXIS 260 (1946).

Injuries to two separate members under the schedule are deemed separate and not concurrent for the purpose of awards and cannot be joined to decrease the compensation. White v. Tennessee Coach Co., 184 Tenn. 158, 197 S.W.2d 795, 1946 Tenn. LEXIS 276 (1946).

The general assembly, by enacting the schedule, determined that where injuries occurred to more than one of the members set out in the schedule under this section, there were separate periods of disability, and that these should be added together to form the basis of an award to the injured employee. White v. Tennessee Coach Co., 184 Tenn. 158, 197 S.W.2d 795, 1946 Tenn. LEXIS 276 (1946).

Where two members of the body are listed together as a scheduled injury court can make an award on the basis of the schedule listing the members together even though the evidence as to the loss of the use of the members is evaluated separately, since the court can make a judgment as to the percentage of disability of the two members taken together. Queen v. New York Underwriters Ins. Co., 222 Tenn. 235, 435 S.W.2d 122, 1968 Tenn. LEXIS 429 (1968).

A disfiguring injury is compensable where it and another injury are distinct and at different locations, but it is not compensable where it and some other injury result from the same accident at the same point on the body. Owens v. Vulcan Materials Co., 503 S.W.2d 87, 1973 Tenn. LEXIS 429 (Tenn. 1973).

Plaintiff was entitled to recovery based on 400 weeks under subdivision (3)(A)(ii)(dd ) of T.C.A. § 50-6-207 for injuries to an arm and foot even though injuries were sustained in separate accidents. Lock v. National Union Fire Ins. Co., 809 S.W.2d 483, 1991 Tenn. LEXIS 154 (Tenn. 1991), rehearing denied, — S.W.2d —, 1991 Tenn. LEXIS 189 (Tenn. 1991).

49. Permanent Total Disability.

Where the employee suffers total loss of limbs or faculties so as to constitute total disability, the award is not to be reduced by what petitioner could earn by the use of members or faculties not destroyed. White v. Tennessee Consol. Coal Co., 162 Tenn. 380, 36 S.W.2d 902, 1930 Tenn. LEXIS 101 (1931).

An employee suffers total disability when the member or faculty injured has been practically destroyed as an aid to earning capacity. Key v. Briar Hill Collieries, 167 Tenn. 229, 68 S.W.2d 115, 1933 Tenn. LEXIS 30 (1934).

Employee's epileptic condition resulting from falling and striking head against iron radiator compensable as total disability. Sears-Roebuck & Co. v. Finney, 169 Tenn. 547, 89 S.W.2d 749, 1935 Tenn. LEXIS 81 (1936).

Where employee suffered mental and physical disabilities and was unable to do even light work satisfactorily, he was incapable of working at an occupation which would bring him an income and was totally and permanently disabled within the meaning of subdivision (4)(B). United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184, 1937 Tenn. LEXIS 112 (Tenn. Mar. 7, 1938).

Evidence that employee had been in normal health before accident but that after being knocked off freight car, falling 20 feet and striking his head on a large manhead he suffered from an impairment of hearing, vagueness of mental control and coordination, had difficulty of comprehension, appeared to be constantly restricting his movements to avoid pain and was unable to do even light work was sufficient to support the finding of the trial judge of total disability. United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184, 1937 Tenn. LEXIS 112 (Tenn. Mar. 7, 1938).

An employee is entitled to recover compensation for total and permanent disability if injury prevents him from working at an occupation which brings in income. J. M. Gallagher Co. v. Lane, 190 Tenn. 301, 229 S.W.2d 347, 1950 Tenn. LEXIS 482 (1950).

Employee was permanently and totally disabled as result of injury where doctor testified that accident has caused the loss of right ear, impairment of hearing in right ear, an unhealed wound in the head, present derangement of mind, and possible epileptic seizures in the future. Mashburn v. Ne-Hi Bottling Co., 191 Tenn. 135, 229 S.W.2d 520, 1950 Tenn. LEXIS 495 (1950), rehearing denied, 191 Tenn. 135, 232 S.W.2d 11, 1950 Tenn. LEXIS 557 (1950).

Evidence supported verdict of trial court that complainant contracted silicosis while working in defendant's mine, that his condition grew progressively worse and that he was entitled to award of permanent total disability under subdivision (4)(B). Eggert v. Tennessee Products & Chemical Corp., 199 Tenn. 341, 286 S.W.2d 874, 1956 Tenn. LEXIS 331 (1956).

Employee is not necessarily entitled to compensation for permanent total disability because he is no longer able to do the work he was doing on the date of the injury, where there is evidence to show that his condition is the same as it was before the injury, and that he was not physically suited to do the work at the time. Drinnon v. Pope, 202 Tenn. 684, 308 S.W.2d 424, 1957 Tenn. LEXIS 456 (1957).

Where heat stroke aggravated  arteriosclerosis condition resulting in permanent disability, employee was entitled to decree of total permanent disability. Eslinger v. Miller Bros. Co., 203 Tenn. 688, 315 S.W.2d 261, 1958 Tenn. LEXIS 236 (1958).

There are differences between the medical and legal meanings of disability, the medical meaning being substantially narrower than the meaning under the Workers' Compensation Law, T.C.A. § 50-6-201 et. seq., and in determining what may constitute permanent total disability the concepts embodied in workers' compensation take into account many pertinent factors including skill, education, training, duration and job opportunity for the disabled. Federated Mut. Implement & Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427, 1967 Tenn. LEXIS 446 (1967); Skipper v. Great Cent. Ins. Co., 225 Tenn. 584, 474 S.W.2d 420, 1971 Tenn. LEXIS 328 (1971); Pulaski Rubber Co. v. Rolin, 481 S.W.2d 369, 1972 Tenn. LEXIS 341 (Tenn. 1972).

Where worker only had an eighth grade education and had been employed throughout his lifetime at manual labor and since accident was only capable of performing such odd or menial jobs as answering the telephone, evidence supported finding of permanent total disability where worker had suffered numerous injuries to back, trunk and had one leg amputated as well as partial loss and atrophy of buttocks and hips. Federated Mut. Implement & Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427, 1967 Tenn. LEXIS 446 (1967).

The fact that an employee is employed after injury in the same type of employment and at the same wages as prior to such injury does not per se preclude the court from finding that he is totally disabled as defined in this section, but the fact of employment after injury is a factor to be considered along with all other factors involved in determining whether employee in light of his education, abilities, physical and/or mental infirmities is employable in the labor market. Skipper v. Great Cent. Ins. Co., 225 Tenn. 584, 474 S.W.2d 420, 1971 Tenn. LEXIS 328 (1971).

Where an employee whose job involved heavy lifting sustained a back injury, and medical testimony reflected that he sustained a 30 percent medical disability, and was thereby prevented from resuming his former employment, but was able to secure employment in a filling station at 85 percent of his previous salary, he was not, as a matter of law, totally and permanently disabled within the meaning of subdivision (4)(B). American Lava Corp. v. Savena, 493 S.W.2d 77, 1973 Tenn. LEXIS 497 (Tenn. 1973).

A person whose workers' compensation claim is for permanent total disability may only receive compensation on that basis. Ware v. United States Steel Corp., 541 S.W.2d 107, 1976 Tenn. LEXIS 529 (Tenn. 1976).

In the determination of benefits for permanent total disability, earning capacity is not a factor since such benefits are for the irrevocable loss and complete destruction of earning capacity. Ware v. United States Steel Corp., 541 S.W.2d 107, 1976 Tenn. LEXIS 529 (Tenn. 1976).

Where claimant was a manual laborer with little education, and he received multiple injuries to his hand and legs rendering him unable to carry out much of his work, a finding of permanent total disability was supported by the evidence. Tennlite, Inc. v. Lassiter, 561 S.W.2d 157, 1978 Tenn. LEXIS 577 (Tenn. 1978).

Where the results of necessary surgery were not confined to the left lower leg but at a minimum appeared to extend into the hip socket, and there was evidence that they may have extended into other parts of the trunk of the body, there was sufficient evidence to sustain the trial court's finding that the injured employee was permanently and totally disabled. Blackburn v. Allied Chemical Corp., 616 S.W.2d 600, 1981 Tenn. LEXIS 445 (Tenn. 1981).

Compensation may be allowed an employee both for temporary total disability and permanent partial disability as a result of the same injury, and one is not to be deducted from or credited on the other. Jones v. Crenshaw, 645 S.W.2d 238, 1983 Tenn. LEXIS 604 (Tenn. 1983).

The phrase “totally incapacitates the employee from working at an occupation which brings him an income” contemplates employment in the open labor market and not a return to the employee's previous position. Prost v. Clarksville, Police Dep't, 688 S.W.2d 425, 1985 Tenn. LEXIS 500 (Tenn. 1985).

Provisions relating to termination of permanent total disability benefits for workers age 60 and over do not violate equal protection or the federal Age Discrimination in Employment Act. Vogel v. Wells Fargo Guard Servs., 937 S.W.2d 856, 1996 Tenn. LEXIS 618 (Tenn. 1996).

The 260 week cap set forth in subdivision (4)(A)(i) of T.C.A. § 50-6-207 applies to all injured workers over 60 who are awarded benefits for permanent partial or permanent total disability. Vogel v. Wells Fargo Guard Servs., 937 S.W.2d 856, 1996 Tenn. LEXIS 618 (Tenn. 1996).

Awards of permanent total disability benefits are payable to age 65 without regard to the monetary cap imposed by the maximum total benefit provisions of T.C.A. § 50-6-102. Love v. American Olean Tile Co., 970 S.W.2d 440, 1998 Tenn. LEXIS 296 (Tenn. 1998).

The legal definition of permanent total disability does not carry the same meaning as permanent and total medical disability; rather, any inquiry as to whether an employee is permanently and totally disabled from a legal perspective must focus on the employee's ability to return to gainful employment. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 2000 Tenn. LEXIS 298 (Tenn. 2000).

The law is settled that awards for permanent partial disability to the body as a whole and awards for permanent total disability are controlled by subdivision (4)(A)(i) of T.C.A. § 50-6-207 when the employee is over the age of sixty (60) when the injury occurs. Tucker v. Foamex, 31 S.W.3d 241, 2000 Tenn. LEXIS 617 (Tenn. 2000).

Where the employee suffered severe injury at age 58, and upon reaching maximum medical improvement at age 62, the injury was reclassified to permanent total disability. The chancellor properly determined that, because the employee was less than 60 years of age when the injury occurred under T.C.A. § 50-6-207(4)(A)(i) the employee was entitled to permanent total disability benefits for only 232 weeks until the employee was eligible for full benefits under the Social Security Act. Galloway v. Liberty Mut. Ins. Co., 137 S.W.3d 568, 2004 Tenn. LEXIS 626 (Tenn. 2004).

Although the record reflected that the trial court properly considered attorney's fees and the employee's arrearages for pre-injury obligations in awarding lump sum benefits, the trial court erred in the extent of its award which totaled 180 weeks. The plain language of T.C.A. § 50-6-207(4)(A)(ii)(b) provided that the commuted portion of an award could not exceed the value of one hundred weeks of the employee's benefits. Gray v. Cullom Mach., Tool & Die, Inc., 152 S.W.3d 439, 2004 Tenn. LEXIS 1116 (Tenn. 2004).

Record showed that after awarding lump sum benefits, the trial court erred in refusing to reduce the weekly rate at which the remaining payments were to be made per T.C.A. § 50-6-207(4)(A)(ii)(c). Reducing the weekly rate ensured that the employee would receive payments throughout the entire period of disability, and served as a more effective substitute for regular wages, and avoided forcing the employer to make payments on an accelerated schedule; accordingly, on remand, the trial court was to make a determination as to the lump sum benefits and then calculate the weekly rate at which the employer would pay the remaining benefits by using the full period of the employee's disability. Gray v. Cullom Mach., Tool & Die, Inc., 152 S.W.3d 439, 2004 Tenn. LEXIS 1116 (Tenn. 2004).

Disability to the body as a whole could only be awarded when the employee sustained a total disability due to some combination of injuries beyond a single scheduled member, incapacitating the body as a whole; there was a clear legislative intent expressed in the schedule-member statute to limit awards affecting only scheduled members to the statutory caps; the trial court properly apportioned the injury to the body as a whole in light of the evidence that the employee experienced disability beyond the disability to her leg alone. Eads v. Guideone Mut. Ins. Co., 197 S.W.3d 737, 2006 Tenn. LEXIS 599 (Tenn. July 7, 2006).

Employee who was permanently and totally disabled as provided for in T.C.A. § 50-6-207(4)(A)(i) was barred from receiving additional vocational disability benefits unless the employee could establish rehabilitation from the injury which caused the permanent and total disability, and this principle applied even though the employee temporarily returned to work following the first injury and suffered a subsequent work-related injury close in time; the employee was not entitled to an award of workers'  compensation benefits for her second injury because the evidence did not show that she was rehabilitated from the injury that resulted in the earlier award of permanent total disability. Turner v. Homecrest Corp., 226 S.W.3d 273, 2007 Tenn. LEXIS 369 (Tenn. Apr. 26, 2007).

Finding that the employee suffered a permanent total disability was supported by the uncontradicted lay and medical testimony that the employee, who suffered neck and back injuries following a fall, had a substantial limitation upon the employee's cognitive and analytical abilities due to effects of the many medications required to manage her ongoing pain, neurological symptoms, and depression, and she also suffered from incontinence. Mousseau v. Davita, Inc., — S.W.3d —, 2012 Tenn. LEXIS 72 (Tenn. Feb. 21, 2012), review denied, — S.W.3d —, 2012 Tenn. LEXIS 71 (Tenn. Feb. 21, 2012).

Employee was permanently and totally disabled under T.C.A. § 50-6-207 due to his dyshidrotic eczema. His testimony and that of his doctor showed that his ability to perform work tasks, all of which involved the repetitive use of his hands, was limited when his symptoms were active and that he did not have the capacity to perform clerical jobs. Scoggins v. Jenkins Masonry, Inc., — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 448 (Tenn. Crim. App. June 27, 2012).

So long as the evidence demonstrates by a preponderance of the evidence the complete vocational disability of the employee, a finding of permanent and total disability is permitted, regardless of whether medical expert testimony is presented in that regard. Hamilton v. Pemberton Truck Lines, Inc., — S.W.3d —, 2014 Tenn. LEXIS 564 (Tenn. July 16, 2014), aff'd, Hamilton v. Pemberton Trucking Lines, Inc., — S.W.3d —, 2014 Tenn. LEXIS 563 (Tenn. July 16, 2014).

Evidence was sufficient to support a finding of permanent total disability because the trial court specifically accredited the employee's testimony as to his own limitations and the statements he made to the vocational experts, who agreed that the employee was unable to return to any of his previous employment positions; because the employee and vocational experts testified at trial, the trial court had a firsthand opportunity to assess their credibility. Hamilton v. Pemberton Truck Lines, Inc., — S.W.3d —, 2014 Tenn. LEXIS 564 (Tenn. July 16, 2014), aff'd, Hamilton v. Pemberton Trucking Lines, Inc., — S.W.3d —, 2014 Tenn. LEXIS 563 (Tenn. July 16, 2014).

Employee was properly awarded permanent total disability benefits after she aggravated a preexisting asymptomatic condition in her shoulder while working for the employer and failed to make a meaningful return to work; a compensable injury occurred in the absence of an anatomical change. The employee was limited in her employment options based on her age, education, employment history, locale, and the residual effects of her injury. Callins v. NSK Steering Sys. Am., Inc., — S.W.3d —, 2015 Tenn. LEXIS 934 (Tenn. Nov. 30, 2015), aff'd, Callins v. NSK Steering Sys. Am., Inc., — S.W.3d —, 2015 Tenn. LEXIS 929 (Tenn. Nov. 30, 2015).

50. —Disability Assessment.

The assessment of permanent total disability is based upon numerous factors, including the employee's skills and training, education, age, local job opportunities, and his or her disabled condition. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 2000 Tenn. LEXIS 298 (Tenn. 2000).

Although a rating of anatomical disability by a medical expert is one of the relevant factors in assessing disability, the vocational disability is not restricted to the precise estimate of anatomical disability made by a medical witness. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 2000 Tenn. LEXIS 298 (Tenn. 2000).

The claimant's own assessment of her physical condition and resulting disabilities is competent testimony that should be considered in assessing disability. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 2000 Tenn. LEXIS 298 (Tenn. 2000).

Permanent total disability benefits was properly awarded to the employee because all the testimony indicated that the employee could no longer work as a truck driver; the employee and her husband offered persuasive testimony that the painful effects of her neck injury precluded any meaningful employment; a vocational consultant testified that a 56 year old woman with moderately severe to severe symptoms would not be able to acquire employment and maintain it on a routine basis; and the employee testified that her pain was so severe that she was unable to concentrate, perform tasks in a timely manner, or have the type of regular attendance expected of any job, and she could not, in good conscience, accept a job that she could not perform. Strickland v. United States Xpress Enters., — S.W.3d —, 2015 Tenn. LEXIS 358 (Tenn. Apr. 27, 2015), aff'd, Strickland v. U.S. Xpress Enters., — S.W.3d —, 2015 Tenn. LEXIS 359 (Tenn. Apr. 27, 2015).

Claims Commission did not err in finding that an employee was permanently and totally disabled because a vocational evaluator's opinion was based on specific data contained in the functional capacity evaluation and technical data from government and private sources pertaining to physical requirements of various jobs in the labor force, the employee was 51 years old, had dyslexia, his work history consisted entirely of unskilled and semi-skilled work, he was significantly limited in his ability to stand, reach, and lift between the waist and shoulder level, he was vigorously cross-examined and explained his allegedly inconsistent statements and illegal behavior. Miller v. State, — S.W.3d —, 2015 Tenn. LEXIS 922 (Tenn. Nov. 6, 2015).

51. —Period of Compensation.

Because employee's award of permanent partial disability was enlarged to an award of permanent total disability, the employee's case was controlled by T.C.A. § 50-6-207(4)(A)(i), not T.C.A. § 50-6-242, and the employee was entitled to permanent total disability for the number of weeks between the employee's last date of employment and the employee's 65th birthday. Warren v. American Holding Co., 20 S.W.3d 621, 2000 Tenn. LEXIS 340 (Tenn. Special Workers' Comp. App. Panel 2000), aff'd, 2000 Tenn. LEXIS 339 (Tenn. June 19, 2000).

Because the statutory definition of maximum total benefit exempts permanent total disability awards from the 400 week limitation, such benefits are to be paid until age 65 under T.C.A. § 50-6-207(4)(A)(i) without regard to the monetary cap imposed by the maximum total benefit provision of T.C.A. § 50-6-102Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

Employee asserted his permanent total disability benefits should have commenced on the date he reached maximum medical improvement, in October 1998. However, he testified that during the three years at issue he had trouble working, and there was simply no showing that he was unemployable and therefore totally disabled as a result of the injury as required by T.C.A. § 50-6-207(4)(B); therefore, the evidence did not preponderate against the trial judge's finding that he was not totally disabled until he was no longer able to work at all, which was in April 2002. Rhodes v. Capital City Ins. Co., 154 S.W.3d 43, 2004 Tenn. LEXIS 1112 (Tenn. 2004).

52. —Reemployment.

The mere fact that the employee is subsequently reemployed through the magnanimity of his former employer is no bar to a finding of permanent disability. Tennlite, Inc. v. Lassiter, 561 S.W.2d 157, 1978 Tenn. LEXIS 577 (Tenn. 1978).

Where claimant had no future on the job market, the evidence established that she was permanently and totally disabled. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 2000 Tenn. LEXIS 298 (Tenn. 2000).

53. —Injury to or Loss of Member as Permanent Total Disability.

Fracture of leg or thigh joint near hip rendering it wholly useless and petitioner bedfast is deemed a case of total disability governed by subdivision (4) rather than a case of loss of a leg. Kingsport Silk Mills v. Cox, 161 Tenn. 470, 33 S.W.2d 90, 1930 Tenn. LEXIS 31 (1930).

Where the injury was a broken hip rendering useless a leg with total incapacity, the award is not for the loss of a leg, but for total disability. Central Surety & Ins. Corp. v. Court, 162 Tenn. 477, 36 S.W.2d 907, 1930 Tenn. LEXIS 111 (1931).

The remuneration for the specific loss of a member is intended to apply to persons not totally incapacitated by such loss so that a worker who is disabled to the extent that he cannot work at an occupation that will bring him an income is entitled to compensation for total disability, notwithstanding the fact that his condition resulted primarily from an injury to a particular member of his body. Russell v. Virginia Bridge & Iron Co., 172 Tenn. 268, 111 S.W.2d 1027, 1937 Tenn. LEXIS 77 (1938).

If a member is physically lost, the specific amount awarded for loss of member under subdivision (3) is the amount recovered, but if employee only loses the use of the member, and is unable thereafter to work at an occupation which will bring in income, he is entitled to recover compensation for total permanent disability. Plumlee v. Maryland Casualty Co., 184 Tenn. 497, 201 S.W.2d 664, 1947 Tenn. LEXIS 402 (1947).

Employee who was unable to stand on his leg and do manual labor or even drive a truck as a result of a log falling on his leg was entitled to recover award for total and permanent disability and was not restricted to statutory recovery for loss of leg. Hix v. Cassetty, 186 Tenn. 343, 210 S.W.2d 481, 1948 Tenn. LEXIS 555 (1948).

Employee who lost use of leg due to progressive atrophy as result of crushing injury to right foot and leg was not restricted to scheduled compensation for loss of use of leg but was entitled to compensation for permanent total disability. Johnson v. Anderson, 188 Tenn. 194, 217 S.W.2d 939, 1949 Tenn. LEXIS 328, 1949 Tenn. LEXIS 329 (1949).

The compensation statute discloses no distinction between a total disability attended by the actual loss of a leg and a total disability attended by the loss of use of a leg, and where the injury is confined to the loss, or loss of use, of a leg and the disability is less than total, benefits are as provided in subdivision (3), but where the injury results in total and permanent disability, benefits are those provided in subdivision (4). Cox v. Black Diamond Coal Mining Co., 93 F. Supp. 685, 1950 U.S. Dist. LEXIS 2394 (D. Tenn. 1950).

Miner, who as result of crushing injury to his thigh had to have his leg amputated, was entitled to an award for permanent and total disability, where evidence showed that as result of shock and possible phlebitis he was unable to engage in manual labor. Cox v. Black Diamond Coal Mining Co., 93 F. Supp. 685, 1950 U.S. Dist. LEXIS 2394 (D. Tenn. 1950).

When trial court, in fixing the compensation, based the compensation on loss of earning capacity and not on the basis of statutory liability for the loss of one of the members, the basis for such a holding is that the disability found by the trial judge is total, and where the disability is thus found to be total as a result of an injury to one of the specified members then the provisions as to total disability apply. M. B. McMahan Lumber Co. v. Ownby, 191 Tenn. 143, 232 S.W.2d 12, 1950 Tenn. LEXIS 558 (1950).

Where petitioner suffered scheduled loss of his right leg but in addition suffered unscheduled injuries to his buttocks, hip and back, petitioner was not limited to recovery for scheduled injury but could recover for permanent total disability. Federated Mut. Implement & Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427, 1967 Tenn. LEXIS 446 (1967).

Where the claimant's back injury resulted in a permanent partial disability of 10 percent to the body as a whole, and he only had an eighth grade education and was without specialized training for work other than as a laborer, the supreme court affirmed a finding of 100 percent disability. Travelers Ins. Co. v. Flatford, 551 S.W.2d 695, 1977 Tenn. LEXIS 532 (Tenn. 1977).

54. —Awarding Total Disability from Date Subsequent to Date of Injury.

Where as a result of an injury sustained in the course of employment the employee developed an arthritic condition which became gradually worse until total disability resulted, it was proper for the trial court to award total permanent disability from a date subsequent to the date of the injury. Central Franklin Process Co. v. Gann, 175 Tenn. 267, 133 S.W.2d 503, 1939 Tenn. LEXIS 38 (1939).

55. Spread of Injury.

If an injury to a specific member does not stop with the injury to or loss of that member, but for any reason continues as an injury affecting the body to such extent as to result in permanent (total or partial) disability, a recovery may be had therefor. In such case, the injury is general and not confined to the specific member. McWhirter v. Kimbro, 742 S.W.2d 255, 1987 Tenn. LEXIS 1030 (Tenn. 1987), rehearing denied, 742 S.W.2d 255, 1987 Tenn. LEXIS 1050 (Tenn. 1987).

56. Survival of Right of Compensation.

The right of an injured employee to receive compensation dies with him and does not survive to his personal representative where the cause of his death is not connected with his employment. Battle Creek Coal & Coke Co. v. Martin, 155 Tenn. 34, 290 S.W. 18, 1926 Tenn. LEXIS 16 (1927); Rose v. City of Bristol, 203 Tenn. 629, 315 S.W.2d 237, 1958 Tenn. LEXIS 228 (Tenn. June 6, 1958); Sherlin v. Liberty Mut. Ins. Co., 584 S.W.2d 455, 1979 Tenn. LEXIS 459 (Tenn. 1979).

Unadjudicated claim for permanent disability benefits did not survive the nonwork-related death of employee. Estate of Thompson v. WCI Components, 845 S.W.2d 214, 1992 Tenn. LEXIS 714 (Tenn. 1992).

57. Statute Governing Dependent's Compensation on Death of Employee.

Dependent's weekly compensation for accidental death of employee was governed by § 50-6-210 and not limited by maximum fixed in this section for cases of permanent total disability. Clayton Paving Co. v. Appleton, 163 Tenn. 27, 39 S.W.2d 1037, 1930 Tenn. LEXIS 134 (1931).

58. Deductions Upon Death of Employee.

The amount paid an injured employee as purported settlement by the employer over and above employee's hospital bill and expenses should, on subsequent application for compensation by his dependents, after the death of the insured employee, be deducted from the amount of award to the dependents. Hotel Claridge Co. v. Blank, 169 Tenn. 575, 89 S.W.2d 758, 1935 Tenn. LEXIS 85 (1936).

59. Practice and Procedure.

60. —Pleading.

Where in a suit for compensation the only injury alleged was the loss of a leg, petitioner was only entitled to compensation for such loss, even though the petition was evidently drafted upon the erroneous theory that petitioner was entitled to compensation for total permanent disability for the reason that he could no longer carry on the only work that he had ever done, or for which he was qualified. Phillips v. Diamond Coal Mining Co., 175 Tenn. 191, 133 S.W.2d 476, 1939 Tenn. LEXIS 29 (1939).

Petition which alleged that while shoveling dirt from a ditch nine feet deep and placing it in a wheelbarrow two feet above his head claimant felt “a sharp stinging sensation in his back, accompanied by excruciating pain and was unable to stand up for a few minutes…” and that when he arrived at home and his wife “had to practically drag him into the house” advised employer that claimant was claiming compensation for a back injury diagnosed as a ruptured disc. Rhyne v. Lunsford, 195 Tenn. 664, 263 S.W.2d 511, 1953 Tenn. LEXIS 418 (1953).

Where only claim in petition for compensation was for permanent and total disability and there was no mention of temporary total disability, trial court was correct in confining its award to what was claimed in the petition and denial of temporary total compensation from the date employer ceased paying compensation until date of trial was proper. Fidelity & Casualty Co. v. Patterson, 204 Tenn. 673, 325 S.W.2d 258, 1959 Tenn. LEXIS 326 (1959).

An averment that petitioner had suffered an injury to his entire nervous system, although general in nature, was sufficient to put employer on notice of petitioner's claim and to permit testimony that petitioner was suffering from traumatic neurosis. McKenzie v. Campbell & Dann Mfg. Co., 209 Tenn. 475, 354 S.W.2d 440, 1962 Tenn. LEXIS 380 (1962).

61. —Burden of Proof of Disability.

Where employee's doctors testified that they were unable to find objective medical proof of employee's disability, and where there was material evidence in the record which affirmatively refuted employee's contention that he was permanently unable to work, employee had failed to carry his burden of showing that he was totally disabled. Bingham v. Dyersburg Fabrics Co., 567 S.W.2d 169, 1978 Tenn. LEXIS 602 (Tenn. 1978).

A plaintiff must establish the permanency of his disability by a preponderance of the evidence, which must be accomplished through expert medical testimony. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

The burden of proof is on petitioner to show the extent of his disability. Sanders v. Blue Ridge Glass Corp., 161 Tenn. 535, 33 S.W.2d 84, 1930 Tenn. LEXIS 40 (1930).

The party claiming benefits under the workers' compensation act has the burden of proof to establish her claim by a preponderance of all the evidence. Oster, Div. of Sunbeam Corp. v. Yates, 845 S.W.2d 215, 1992 Tenn. LEXIS 713 (Tenn. Special Workers' Comp. App. Panel 1992).

62. —Evidence.

Where injured employee testified as to his earnings, agreement of employer and employee upon payment of the percentage of such wages provided by subdivision (1) as compensation and payment thereof for 13 weeks afforded some evidence of employee's average weekly earnings for 52 weeks preceding injury, warranting award under subdivisions (1) and (2) on that basis. Cambria Coal Mining Co. v. Wilson, 156 Tenn. 64, 299 S.W. 811, 1927 Tenn. LEXIS 84 (1927).

The opinion of a medical expert based on information obtained from a subjective examination or from third persons out of court is inadmissible. Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717, 1928 Tenn. LEXIS 177 (1929); Gulch Lumber Co. v. Fields, 193 Tenn. 365, 246 S.W.2d 47, 1952 Tenn. LEXIS 300 (1952).

Where employee's doctor testified to 35 percent loss of use of foot and employer's doctor testified that there was no loss, and employee's wages were $12.00 weekly instead of $15.00 after the injury, indicating a 20 percent loss in earning power, trial judge properly fixed employee's disability at 20 percent of the loss of the use of the foot. Casteel v. Aluminum Co. of America, 161 Tenn. 407, 33 S.W.2d 61, 1930 Tenn. LEXIS 20 (1930).

Injured employee's testimony, “well I claim my eye is destroyed 50 percent of what it was, that is what I claim my eye is destroyed,” was properly admitted in evidence, and was sufficient to support a finding to that effect. Black Diamond Collieries v. Gibbs, 161 Tenn. 413, 32 S.W.2d 1041, 1930 Tenn. LEXIS 21 (1930).

The award of compensation to an injured employee should not be reversed because a doctor who testifies on behalf of the employee bases a portion of his testimony on subjective symptoms, that is, what the injured person relates to the doctor about his injury, especially when there is ample credible evidence to sustain the claims of the injured employee. Gulch Lumber Co. v. Fields, 193 Tenn. 365, 246 S.W.2d 47, 1952 Tenn. LEXIS 300 (1952).

Where finding of trial judge is based on competent legal evidence, it is harmless error for hearsay to creep into trial, and reversal should not be granted for that reason alone. Gulch Lumber Co. v. Fields, 193 Tenn. 365, 246 S.W.2d 47, 1952 Tenn. LEXIS 300 (1952).

Trial judge does not have to accept the testimony of any one or more of the witnesses but it is his duty to weigh the entire evidence and evaluate the percentage of disability as his judgment dictates. Fidelity & Casualty Co. v. Patterson, 204 Tenn. 673, 325 S.W.2d 258, 1959 Tenn. LEXIS 326 (1959).

Optometrist's testimony that prior to accidental splashing of acid into his right eye claimant had 20-20 vision, and after the accident had 20-400 vision therein, was valuable in measuring the sight before and after the accident, however, since his training was not in diseases of the eye, his testimony could not be considered material evidence to support award to claimant for loss of eyesight. American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W.2d 643, 1965 Tenn. LEXIS 573 (1965).

Although defendant's doctors testified that disability was approximately 15 to 20 percent of body as a whole, where such percentage was based upon a successful surgical repair of the ruptured disc and there was no evidence that the defendant ever offered to provide the operation or any evidence that such operation if performed would likely be a success, an award of 85 percent disability was not error, there being evidence that plaintiff would be disabled from doing heavy work, stooping or twisting and that as a coal miner he would be completely disabled. Ward v. Consolidation Coal Co., 406 F.2d 676, 1969 U.S. App. LEXIS 9054 (6th Cir. Tenn. 1969).

Trial court may base its findings upon all the evidence, medical and lay, with respect to extent of disability. Industrial Coated Products, Inc. v. Buchanan, 224 Tenn. 69, 450 S.W.2d 566, 1970 Tenn. LEXIS 302 (1970).

Where there was abundance of competent medical testimony that complainant had no basis for disability, an award based on testimony of one doctor who based his opinion on subjective complaints was not sustained. Reynolds v. Liberty Mut. Ins. Co., 496 S.W.2d 890, 1973 Tenn. LEXIS 486 (Tenn. 1973).

Where medical testimony establishes the permanency of an injury, lay testimony becomes admissible and relevant on the issue of the extent of the work disability. Smith v. Hale, 528 S.W.2d 543, 1975 Tenn. LEXIS 626 (Tenn. 1975).

A chiropractor is competent to testify as an expert as to matters within the limited scope of his profession. Smith v. Hale, 528 S.W.2d 543, 1975 Tenn. LEXIS 626 (Tenn. 1975).

A state court, although applying federal standards and criteria, such as are set forth in federal regulations, should make an independent determination of the employee's entitlement to compensation, and it may consider any competent evidence presented on that issue by either party. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

Where the employee's testimony describing his symptoms and complaints, in general, was admissible, although he was not qualified to testify as to the medical reasons or cause of these, any error of the trial court in not formally striking portions of his testimony from the record was harmless and did not affect the outcome of the case, since the hearing was nonjury and before an experienced chancellor, who was clearly able to eliminate any incompetent evidence from consideration in reaching his decision. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

The question of whether or not a present disability is or will prove permanent is frequently one largely determined by the courts, or by the interested parties for themselves, on the basis of appearances at the time and opinion estimates of the apparent probabilities. Some disabilities are taken to be temporary and others to be permanent, so agreed or so determined, when the facts are subsequently demonstrated to be otherwise. Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

The determination of the issue of permanency of all but the most obvious injuries, such as loss of a member, is peculiarly within the realm of scientific knowledge. Thus, an award of permanent partial disability for an injury must be supported by expert medical testimony that the resulting condition is permanent. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

63. — —Medical Experts.

In workers' compensation case, the fact that there was no objective finding upon which physician could base a permanent partial disability rating did not render his testimony inadmissible; rather the fact that his opinion was based upon subjective findings alone affected only its weight. Cates v. Better-Bilt Aluminum Products Co., 607 S.W.2d 476, 1980 Tenn. LEXIS 506 (Tenn. 1980).

Under T.C.A. § 24-7-114 [now § 24-7-115], the opinion of a qualified medical expert witness based on subjective findings alone is sufficient to establish medical causation and the permanency of disability, if the evidence is found to be credible by the trial judge. Johnson v. Schevenell Ready Mix, Inc., 608 S.W.2d 582, 1980 Tenn. LEXIS 514 (Tenn. 1980).

In determining the extent of the worker's disability, the trial judge is not required to accept without reservation an expert's opinion, but is charged with making an independent determination on consideration of such factors as age, education, training, job skills, work experience and job opportunities available to a worker with the anatomical disability of plaintiff. Miles v. Liberty Mut. Ins. Co., 795 S.W.2d 665, 1990 Tenn. LEXIS 312 (Tenn. 1990); Duncan v. Boeing Tennessee, Inc., 825 S.W.2d 416, 1992 Tenn. LEXIS 200 (Tenn. 1992).

A physical therapist is not qualified to give an expert opinion on the permanent impairment or permanent physical restrictions of an injured person. Elmore v. Travelers Ins. Co., 824 S.W.2d 541, 1992 Tenn. LEXIS 44 (Tenn. 1992).

Trial court did not err in declining to apportion an injury to the body as a whole where it apportioned a 40 percent vocational disability to the employee's right foot only and the worker's complaint alleged injuries to his right foot, right ankle, right leg, and back, and further alleged that those injuries resulted in weight gain and sleep apnea, because, there was an absence of expert medical evidence establishing permanency for the conditions. Long v. Mid-Tennessee Ford Truck Sales, Inc., 160 S.W.3d 504, 2005 Tenn. LEXIS 225 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 360 (Tenn. Apr. 18, 2005).

64. — —Sufficiency.

Supreme court would not say that trial court's award for 85 percent impairment of employee's use of arm was excessive where doctor testified that use was impaired 100 percent for hard manual labor and from 50 to 75 percent for light labor and employee's arm was manipulated in the presence of the court and observed by him. Davenport Silk Mills v. Dillinger, 163 Tenn. 402, 43 S.W.2d 493, 1931 Tenn. LEXIS 129 (1931).

In a compensation case, the finding of the court that claimant had a bone in the lower part of a leg broken was supported by the evidence, where there was some evidence that the injury in question extended to claimant's leg above the ankle, and practically destroyed the use of his leg. Key v. Briar Hill Collieries, 167 Tenn. 229, 68 S.W.2d 115, 1933 Tenn. LEXIS 30 (1934).

Evidence held sufficient to support finding of trial judge that petitioner had suffered 90 percent total disability from an accident arising out of and in the course of his employment. Swift & Co. v. Howard, 186 Tenn. 584, 212 S.W.2d 388, 1948 Tenn. LEXIS 585 (1948).

Finding by trial court that employee was permanently and totally disabled as result of lifting a case of milk was justified where employee testified that his back did not cause him any trouble until after he lifted the case of milk on date in question and doctors by means of lighted X-ray pictures demonstrated to the trial court that spinal displacement sustained by employee was probably traumatic in origin. Inscore v. Pet Milk Co., 192 Tenn. 593, 241 S.W.2d 581, 1951 Tenn. LEXIS 306 (1951).

Aside from medical testimony, the testimony of an injured employee supported by lay witnesses is within itself sufficient to warrant the trial judge in making an award of workmen's compensation. Gulch Lumber Co. v. Fields, 193 Tenn. 365, 246 S.W.2d 47, 1952 Tenn. LEXIS 300 (1952).

There was substantial evidence in a workers' compensation case to support chancellor's finding of 50 percent permanent partial disability where a chiropractor testified that in his opinion there was between 55 and 60 percent disability to employee's spine, and where employee and his parents testified as to the employee's inability to do any heavy work. Smith v. Hale, 528 S.W.2d 543, 1975 Tenn. LEXIS 626 (Tenn. 1975).

In a workers' compensation proceeding for total permanent disability benefits for coal worker's pneumoconiosis, where the testimony of the miner's physician was clear that the miner's lung condition alone was sufficient to cause total permanent disability, although no physician testified as to the degree or extent of the heart disease from which the miner also suffered, this evidence was sufficient to justify an award for the miner. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

In determining sufficiency of evidence of partial disability to the body as a whole, once permanency and causation are established by medical testimony, the extent of such disability may be determined from lay testimony and other evidence as well as from medical evidence. Kellwood Co. v. Gibson, 581 S.W.2d 645, 1979 Tenn. LEXIS 438 (Tenn. 1979), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Trial court properly awarded permanent total disability benefits to an employee because the employee sustained a permanent injury to his back as a result of a work incident and the evidence was consistent with a conclusion that his physical limitations excluded him from most types of work and his mental condition presented a barrier to functioning in a work environment. LaPradd v. Nissan N. Am., Inc., — S.W.3d —, 2016 Tenn. LEXIS 6, 2016 Tenn. LEXIS 6 (Tenn. Jan. 14, 2016).

Evidence did not preponderate against a trial court's finding that an injured employee was not permanently and totally disabled because the final judgment of the trial court reflected a greater weight given to the testimony of doctors over the testimony of the employee and a vocational evaluator's opinion. Thompson v. UPS, — S.W.3d —, 2017 Tenn. LEXIS 86 (Tenn. Feb. 17, 2017).

65. — —Evidence Insufficient.

Considering plaintiff's disability, work restrictions and skills, and all other factors, an award of 80 percent disability was excessive; the preponderance of the evidence supported a finding that plaintiff sustained only 50 percent permanent partial disability to the body as a whole. Newman v. National Union Fire Ins. Co., 786 S.W.2d 932, 1990 Tenn. LEXIS 123 (Tenn. 1990).

Trial court did not err in declining to apportion an injury to the body as a whole where it apportioned a 40 percent vocational disability to the employee's right foot only and the worker's complaint alleged injuries to his right foot, right ankle, right leg, and back, because, there was no evidence of an injury to the employee's back or leg caused by the foot injury. Evidence of pain and speculation about back problems was not sufficient to support a finding that the employee had suffered a disability to the body as a whole. Long v. Mid-Tennessee Ford Truck Sales, Inc., 160 S.W.3d 504, 2005 Tenn. LEXIS 225 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 360 (Tenn. Apr. 18, 2005).

66. — —Admissibility of Federal Administrative Findings.

Awards or findings of the social security administration are not admissible in the courts of Tennessee in a workers' compensation case for the purpose of showing the existence or the extent of an employee's permanent disability because the employer is not a party to proceedings before the social security administration and has no opportunity to cross-examine or to rebut employee's proof, and the criterion for determining the existence or extent of permanent disability, temporary or total, under Tennessee workers' compensation statutes and case law differs widely from the definitions of disability applicable for social security purposes. Bingham v. Dyersburg Fabrics Co., 567 S.W.2d 169, 1978 Tenn. LEXIS 602 (Tenn. 1978).

In a workers' compensation proceeding for total permanent disability benefits for coal worker's pneumoconisis, the trial court properly excluded from evidence an application and supporting data submitted by the employee, a coal miner, to the United States department of labor in an effort to obtain black lung benefits under federal statutes where the evidence was offered, not for the purpose of impeaching the employee's testimony or to show a prior inconsistent statement on his part or that of any other witness, but as substantive evidence that the employee had not sustained total disability as a result of pneumoconiosis. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

67. —Modification of Award.

In view of provision in this statute of method for future modification of decree in case of increase of capacity, award for a specified number of weeks is proper though there is no proof that disability will continue that long, such provision being impliedly read into the decree. Crane Enamelware Co. v. Dotson, 152 Tenn. 401, 277 S.W. 902, 1925 Tenn. LEXIS 83 (1925).

Where judgment was entered by consent for given amount for compensation, the decree could not be corrected at a later term on ground that the amount allowed was too large. College Coal Mining Co. v. Smith, 160 Tenn. 93, 21 S.W.2d 1038, 1929 Tenn. LEXIS 78 (1929), overruled in part, Brown v. Consolidation Coal Co., 518 S.W.2d 234, 1974 Tenn. LEXIS 433 (Tenn. 1974).

In a compensation proceeding for injury to an eye, where the injured employee and the employer agreed upon terms of compensation approved by the court, and where, with consent of the parties, there was added to the decree the condition that, if applicant's disability should increase, application for further compensation might be made, the court had no authority to fix a limitation as to the time; and a petition may be filed for increase of compensation on the question of applicant's decrease in earning capacity, there being no limitation by statute or by the decree. Phillips v. Memphis Furniture Mfg. Co., 168 Tenn. 481, 79 S.W.2d 576, 1934 Tenn. LEXIS 80 (1935).

Where compensation award made by the court and assented to by the parties provided that the aggregate sum received by the widow and children for death of worker was not to exceed limitation provided in subdivision (4) and where six years had passed and the full amount of compensation provided for in the decree had been paid the decree was res judicata. Shockley v. Morristown Produce & Ice Co., 171 Tenn. 591, 106 S.W.2d 562, 1937 Tenn. LEXIS 141 (1937), overruled in part, Brown v. Consolidation Coal Co., 518 S.W.2d 234, 1974 Tenn. LEXIS 433 (Tenn. 1974).

68. —Remand.

Workers' compensation case was remanded to the trial court for further proceedings because of the incomplete state of the record on appeal and because it clearly appeared both from the pleadings and the evidence that there was available to one or both of the parties additional material evidence which would have enabled the court to make a more satisfactory determination of the issues presented. Cates v. Better-Bilt Aluminum Products Co., 607 S.W.2d 476, 1980 Tenn. LEXIS 506 (Tenn. 1980).

69. —Unapproved Settlement.

Agreement whereby insurer consented to pay widow of deceased employee a larger percentage of deceased's weekly wage than required under this statute was not binding in absence of court's approval under § 50-6-206. Mangrum v. Aetna Life Ins. Co., 153 Tenn. 209, 280 S.W. 1011, 1925 Tenn. LEXIS 20 (1926).

70. —Statute of Limitations.

A total loss of eye, resulting in immediate injury, compensable under this section, with right to apply for increase under § 50-6-231 was barred by failure to apply for compensation within one year from occurrence of the accident. Graham v. J. W. Wells Brick Co., 150 Tenn. 660, 266 S.W. 770, 1924 Tenn. LEXIS 35 (1924).

71. Determining Extent of Disability.

Vocational rehabilitation potential need not be considered by the trial court in assessing the extent of the disability. Mayes v. Genesco, Inc., 510 S.W.2d 882, 1974 Tenn. LEXIS 508 (Tenn. 1974).

Trial court's decision that employee suffered only 80 percent permanent disability as a result of coal workers' pneumoconiosis, while supported by testimony of doctors that he was able to do light work, was improperly based on the standards governing ordinary workers' compensation claims, rather than those contained in the applicable federal statute, and thus a new trial was required. Lawson v. Oneida Fuel & Coal Co., 529 S.W.2d 220, 1975 Tenn. LEXIS 580 (Tenn. 1975).

Although medical expert assigned injured person an impairment rating of only 10 percent to the body as a whole where there was evidence that such person could perform no task that required him to lift, stoop or bend or that required him to stand or sit for an extended period of time and he was limited in education and his work experience was limited to that of laborer, it supported the finding of chancellor that person had a 75 percent disability of the body as a whole. Holder v. Liberty Mut. Ins. Co., 587 S.W.2d 372, 1979 Tenn. LEXIS 503 (Tenn. 1979).

In the determination of the extent of the employee's permanent disability, the trial judge is not bound to accept the expert's opinions. Instead, the trial judge may make an independent determination of the extent of the employee's disability, and in this determination the trial judge may properly consider several non-medical factors. Jaske v. Murray Ohio Mfg. Co., 750 S.W.2d 150, 1988 Tenn. LEXIS 68 (Tenn. 1988).

Trial court did not err in declining to apportion an injury to the body as a whole where it apportioned a 40 percent vocational disability to the employee's right foot only because the record showed that the employee had a high school degree and had worked as an insurance agent. He had also worked as a supervisor for various employers. Long v. Mid-Tennessee Ford Truck Sales, Inc., 160 S.W.3d 504, 2005 Tenn. LEXIS 225 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 360 (Tenn. Apr. 18, 2005).

72. Subsequent Reemployment.

An employee who rehabilitates himself and returns to work rather than relying on public relief should not be penalized for his rehabilitation or discouraged from re-entry into the work force by the denial of benefits for subsequent injuries. Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

Although employment after an injury is a factor that may be considered in determining permanent total disability, a 25 percent permanent disability obviously does not preclude all types of work. To reduce or disallow partial benefits on the basis of a subsequent resumption of work would penalize the employee and discourage reemployment. Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

73. Mental and Nervous Illnesses.

Mental and nervous illnesses, of which psychogenic pain disorder certainly qualifies, are compensable under the workers' compensation statute when causally connected to a work-related accident. Wade v. Aetna Casualty & Surety Co., 735 S.W.2d 215, 1987 Tenn. LEXIS 932 (Tenn. 1987).

Where an employee sustained injury to a scheduled member, her hand, which in turn caused psychological problems, the employee was not restricted in her recovery to the scheduled member and could recover for an injury to the body as a whole, and, both the disability to the hand and the psychological disability should be considered in fixing the disability rating for the body as a whole. Kerr v. Magic Chef, Inc., 793 S.W.2d 927, 1990 Tenn. LEXIS 284 (Tenn. 1990).

Trial court erred in awarding workers' compensation benefits for a mental injury to a worker who had been exposed to the blood of a co-worker whom she believed was HIV positive where she had not shown actual exposure to the virus through a medically recognized channel of transmission and five HIV tests had been performed on her and all were negative. The Supreme Court of Tennessee is unwilling to award workers' compensation disability benefits to a claimant who suffers from an irrational fear of exposure to HIV when there is no proof of actual exposure via a medically recognized channel of transmission. Guess v. Sharp Mfg. Co. of Am., 114 S.W.3d 480, 2003 Tenn. LEXIS 722 (Tenn. 2003).

Post-traumatic stress disorder (PTSD) can, in some circumstances, be a compensable workers' compensation injury. Guess v. Sharp Mfg. Co. of Am., 114 S.W.3d 480, 2003 Tenn. LEXIS 722 (Tenn. 2003).

Evidence supported the conclusion that an employee had suffered mental injuries that arose out of and had occurred in the course of his employment as a truck driver when he came into contact with hazardous liquid labeled “radioactive” that he was transporting for disposal in Utah, and he was 100 percent permanently disabled. Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314, 2005 Tenn. LEXIS 1035 (Tenn. 2005).

Employee had suffered mental injuries that arose out of and had occurred in the course of his employment as a truck driver when he came into contact with hazardous liquid labeled “radioactive” that he was transporting for disposal in Utah, and he was 100 percent permanently disabled; evidence presented during trial established that both the employee's mental disorders and the medication used to treat those disorders were “likely to interfere” with his ability to drive a commercial vehicle and his psychiatrist opined that the employee would be required to continue his current level of medication for an indefinite period of time and, as a result, was unable to work at a competitive job. Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314, 2005 Tenn. LEXIS 1035 (Tenn. 2005).

74. —Loss of Mental Faculties.

Where employee suffered a mental injury after being robbed at gun point, but did not suffer a total loss of her mental faculties, she was not entitled to recover benefits for the maximum four hundred (400) week period and her recovery was limited to three hundred (300) weeks. Ivey v. Trans Global Gas & Oil, 3 S.W.3d 441, 1999 Tenn. LEXIS 424, 84 A.L.R.5th 761 (Tenn. 1999).

75. Age Based Classification.

The age based classification contained in subdivision (A)(4)(i) of T.C.A. § 50-6-207 does not apply to a worker over 60 who suffers injury to a scheduled member; it applies only to workers over age 60 who suffer injuries to the body as a whole. McIlvain v. Russell Stover Candies, 996 S.W.2d 179, 1999 Tenn. LEXIS 365 (Tenn. 1999).

Statutory language in T.C.A. § 50-6-207(4)(A)(i) allows permanent total disability benefits to continue beyond the date of eligibility for full benefits in the old age insurance benefit program only for those disabilities resulting from injuries that occur after 60 years of age. Galloway v. Liberty Mut. Ins. Co., 137 S.W.3d 568, 2004 Tenn. LEXIS 626 (Tenn. 2004).

76. Social Security Offset.

Subdivision (4)(A)(i) of T.C.A. § 50-6-207 authorizes an offset of fifty percent (50%) of the total amount of any Social Security old age insurance benefits received by employees over 60 who suffer injuries to the body as a whole and are awarded permanent total or permanent partial disability benefits. McCoy v. T.T.C, Illinois, Inc., 14 S.W.3d 734, 2000 Tenn. LEXIS 75 (Tenn. 2000).

An employer of a worker over age sixty (60) who sustains a scheduled member injury is not entitled to the statutory Social Security offset contained in subdivision (4)(A)(i) of T.C.A. § 50-6-207. Smith v. United States Pipe & Foundry Co., 14 S.W.3d 739, 2000 Tenn. LEXIS 76 (Tenn. 2000).

Workers' compensation benefits payable to a claimant who was also receiving social security benefits on the account of the claimant's deceased spouse were not offset because the social security benefits were not attributable to the contributions of the claimant's employer. Scales v. City of Oak Ridge, 53 S.W.3d 649, 2001 Tenn. LEXIS 618 (Tenn. 2001).

Trial court had not erred in determining that the offset for social security old-age benefits was applicable to death benefits awarded to a widow. Correll v. E.I. Dupont de Nemours & Co., 207 S.W.3d 751, 2006 Tenn. LEXIS 1001 (Tenn. 2006).

Collateral References.

Award under Workmen's Compensation Act as ground for reduction of claim under act of another state. 101 A.L.R. 1445, 150 A.L.R. 431, 169 A.L.R. 1185.

Bonus as factor in determining amount of compensation. 84 A.L.R.4th 1055

Expense money as a factor in computing one's earnings as basis for award. 94 A.L.R. 763.

Presumption or inference that accidental death of employee engaged in occupation of manufacturing or processing arose out of and in course of employment. 47 A.L.R.5th 801.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden emotional stimuli involving personnel action. 82 A.L.R.5th 149

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden emotional stimuli involving nonpersonnel action. 83 A.L.R.5th 103, 84 A.L.R.5th 249

Sufficiency of proof that cancer resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 384.

Sufficiency of proof that cardiovascular or respiratory condition resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 401.

Sufficiency of proof that condition of skin or sensory organ resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 446.

Sufficiency of proof that digestive condition resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 360.

Sufficiency of proof that hernia resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 434.

Sufficiency of proof that mental or neurological condition complained of resulted from accident or incident in suit rather than preexisting condition. 2 A.L.R.3d 487.

Sufficiency of proof that musculoskeletal condition resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 290.

Sufficiency of proof that urogenital condition resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 464.

Third person responsible for injury, construction and application of provision of act for deduction on account of recovery from. 142 A.L.R. 170.

Tips or gratuities as factor in determining amount of compensation. 75 A.L.R. 1223, 16 A.L.R.5th 191.

Workers'  compensation: value of employer-provided room, board, or clothing as factor in determining basis for or calculation of amount of compensation under state workers'  compensation statute. 48 A.L.R.6th 387.

Workmen's compensation: crediting employer or insurance carrier with earnings of employee reemployed or continued in employment, after injury. 84 A.L.R.2d 1108.

50-6-208. Subsequent permanent injury after sustaining previous permanent injury — Subsequent injury and vocational recovery fund — Disbursement — Settlement authority.

    1. 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.
    2. 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.
    3. 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).
    4. 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.
    5. 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.
    6. 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.
  1. [Deleted by 2013 amendment, effective July 1, 2014.]
  2. 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.
  3. 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.
  4. 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.
  5. 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.
    1. 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:
      1. Have the written approval of the administrator or the administrator's designee, in accordance with subdivision (g)(2); or
      2. Have been approved in accordance with § 20-13-103.
    2. 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.
  6. 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.
  7. “Party” or “parties,” as referenced in § 50-6-204(d)(5), shall include the subsequent injury and vocational recovery fund.
    1. 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:
      1. Have received all compensation permitted under § 50-6-207(3); and
      2. 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).
    2. 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).
    3. 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.
    4. The administrator may distribute as vocational recovery assistance any revenues in the subsequent injury and vocational recovery fund that are in excess of:
      1. The estimated required reserves for known claims and incurred but not reported subsequent injury claims, as determined in the most recent actuarial analysis;
      2. 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
      3. The costs associated with legal counsel to defend the fund and administrative costs of the recovery assistance program.
    5. 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.
    6. 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.
    7. 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.

Acts 1919, ch. 123, § 20; Shan. Supp., § 3608a169; Code 1932, § 6871; Acts 1945, ch. 149, § 1; C. Supp. 1950, § 6871; Acts 1961, ch. 26, § 2; 1973, ch. 379, § 10; 1975, ch. 76, § 1; impl. am. Acts 1980, ch. 534, § 2; Acts 1980, ch. 479, § 2; T.C.A. (orig. ed.), § 50-1027; Acts 1983, ch. 217, §§ 3, 4; 1985, ch. 319, § 1; 1985, ch. 393, §§ 10, 22; 1989, ch. 238, § 1; 1996, ch. 944, § 15; 1997, ch. 533, § 4; 1999, ch. 520, § 41; 2001, ch. 366, § 1; 2002, ch. 695, § 3; 2004, ch. 962, § 25; 2005, ch. 390, §§ 7, 15, 16; 2006, ch. 1014, § 1; 2013, ch. 282, §§  1, 6; 2013, ch. 289, §§ 54, 55; 2015, ch. 341, §§ 6, 15; 2015, ch. 425, § 1; 2017, ch. 344, §§ 1, 5, 6.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2013, ch. 289, § 103 provided that the act, which added subdivisions (a)(5) and (a)(6) and deleted subsection (b), shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Acts 2013, ch. 289, § 46, effective July 1, 2014, amends § 50-6-206, referred to in this section, by deleting it in its entirety. However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law. Thus, § 50-6-206 remains in effect as to injuries occurring prior to July 1, 2014.

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, substituted “administrator” for “commissioner” in (f) and (g), and substituted “administrator's” for “commissioner's” in (g)(1)(A); and in the middle of (g) substituted “alternative dispute resolution” for “benefit review conference”.

The 2013 amendment by ch. 289, effective July 1, 2014, added (a)(5) and (6); and deleted (b) which read: “(b)(1)(A) In cases where the injured employee has received or will receive a workers' compensation award or awards for permanent disability to the body as a whole, and the combination of the awards equals or exceeds one hundred percent (100%) permanent disability to the body as a whole, the employee shall not be entitled to receive from the employer or its insurance carrier any compensation for permanent disability to the body as a whole that would be in excess of one hundred percent (100%) permanent disability to the body as a whole, after combining awards.“(B) Benefits that may be due the employee for permanent disability to the body as a whole in excess of one hundred percent (100%) permanent disability to the body as a whole, after combining awards, shall be paid by the second injury fund.“(C)  It is the intention of the general assembly that once an employee receives an award or awards for permanent disability to the body as a whole, and the awards total one hundred percent (100%) permanent disability, any permanent disability compensation due for subsequent compensable injuries to the body as a whole shall be paid by the second injury fund, instead of by the employer.“(D) The provisions of this subdivision (b)(1) shall apply only to injuries that arise on or before June 30, 2006, and shall have no applicability to injuries that arise on or after July 1, 2006.“(2)(A) The burden of proving the existence of previous awards for permanent disability specific to the body as a whole shall be on the party claiming compensation against the second injury fund. The provisions of this subdivision (b)(2)(A) shall apply only to injuries that arise on or before June 30, 2006, and shall have no applicability to injuries that arise on or after July 1, 2006.“(B) Claims against the fund shall be made by either the injured employee or the employer in the manner prescribed in § 50-6-206.“(C) 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 other than to the body as a whole, regardless of whether the combination of workers' compensation awards exceeds one hundred percent (100%) permanent disability.”

The 2015 amendment by ch. 341, effective May 4, 2015, added “and for costs associated with legal counsel to defend the administrator in actions claiming compensation from the second injury fund pursuant to this section” between the words “section” and “and” in the first sentence in (e) and substituted “bureau” for “division” throughout.

Acts 2015, ch. 425, § 1 purported to amend this section by adding  “and for costs associated with legal counsel to defend the administrator in actions claiming compensation from the second injury fund pursuant to this section” between the words “section” and “and” in the first sentence in (e)  effective May 15, 2015. Acts 2015, ch. 341, § 6 made the same amendment effective May 4, 2015; therefore, the amendment by Acts 2015, ch. 425, § 1 was not given effect.

The 2017 amendment substituted “subsequent injury and vocational recovery fund” for “second injury fund” throughout the section; in (e), substituted “must” for “shall” four times;  substituted “, and for costs associated with providing vocational recovery assistance to eligible employees pursuant to subsection (j).” for “and shall” at the end of the first sentence, in the second sentence, added “Monies remaining in the fund must” to the beginning, in the third sentence substituted “monies for “moneys”, in the fourth sentence, substituted “for permanent total physical disabilities must”  for “shall”, in the sixth sentence deleted “second injury” preceding “fund” and added the seventh sentence; and added (j).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2015, ch. 425, § 7. May 15, 2015.

Acts 2017, ch. 344, § 12. May 9, 2017.

Cross-References. Epileptics, § 50-6-213.

Inapplicability to claims filed against state, § 9-8-307.

Payment of penalties into second injury fund, § 50-6-118.

NOTES TO DECISIONS

1. Payments Out of Second Injury Fund.

Evidence supported the trial court's determination that the employer was liable for 90 percent of the employee's permanent total disability benefits resulting from the most recent injury alone because the employee performed all of his duties with no restrictions and with no assistance prior to being injured in March 2012; although the first doctor assigned impairment ratings following the employee's injuries in 2007 and 2008, the employee returned to work with no restrictions; the employee reported no problems between 2008 and 2012, until the injury in March 2012; and the second doctor attributed the worsening in the employee's condition to the injury he suffered in March 2012. Gibson v. Sw. Tenn. Elec. Mbrshp. Corp., — S.W.3d —, 2017 Tenn. LEXIS 536 (Tenn. Aug. 28, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 534 (Tenn. Aug. 28, 2017).

2. Apportionment of Benefits.

Trial court properly determined the amount of disability caused by an employee's subsequent injury) and thus, properly apportioned the award for total and permanent disability between the employer and the Tennessee Department of Labor and Workforce Development, Second Injury Fund because an orthopedic surgeon concluded that the combination of the original and subsequent injuries created the employee's disability; if only the subsequent injury occurred, the employee would have returned to work. Blocker v. Powell Valley Elec. Coop., — S.W.3d —, 2018 Tenn. LEXIS 653 (Tenn. Oct. 24, 2018), aff'd, — S.W.3d —, 2018 Tenn. LEXIS 649 (Tenn. Oct. 24, 2018).

50-6-208. Subsequent permanent injury after sustaining previous permanent injury — Second injury fund — Disbursement — Pilot project for legal defense of administrator — Settlement authority. [Applicable to injuries occurring prior to July 1, 2014.]

    1. 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 second injury fund.
    2. To receive benefits from the second injury 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.
    3. In determining the percentage of disability for which the second injury 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).
    4. 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 second injury fund is not applicable.
      1. In cases where the injured employee has received or will receive a workers' compensation award or awards for permanent disability to the body as a whole, and the combination of the awards equals or exceeds one hundred percent (100%) permanent disability to the body as a whole, the employee shall not be entitled to receive from the employer or its insurance carrier any compensation for permanent disability to the body as a whole that would be in excess of one hundred percent (100%) permanent disability to the body as a whole, after combining awards.
      2. Benefits that may be due the employee for permanent disability to the body as a whole in excess of one hundred percent (100%) permanent disability to the body as a whole, after combining awards, shall be paid by the second injury fund.
      3. It is the intention of the general assembly that once an employee receives an award or awards for permanent disability to the body as a whole, and the awards total one hundred percent (100%) permanent disability, any permanent disability compensation due for subsequent compensable injuries to the body as a whole shall be paid by the second injury fund, instead of by the employer.
      4. This subdivision (b)(1) shall apply only to injuries that arise on or before June 30, 2006, and shall have no applicability to injuries that arise on or after July 1, 2006.
      1. The burden of proving the existence of previous awards for permanent disability specific to the body as a whole shall be on the party claiming compensation against the second injury fund. This subdivision (b)(2)(A) shall apply only to injuries that arise on or before June 30, 2006, and shall have no applicability to injuries that arise on or after July 1, 2006.
      2. Claims against the fund shall be made by either the injured employee or the employer in the manner prescribed in § 50-6-206.
      3. 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 other than to the body as a whole, regardless of whether the combination of workers' compensation awards exceeds one hundred percent (100%) permanent disability.
  1. 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 second injury fund for distribution by the administrator of the division of workers' compensation.
  2. There is appropriated a sum sufficient to the second injury 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.
  3. The sums collected by the administrator as provided in this section shall be deposited by the administrator in a special fund, which shall be termed the second injury fund, to be disbursed by the administrator only for the purposes stated in this section and shall not at any time be appropriated or diverted to any other purpose. The administrator shall not invest any moneys in the second injury 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 shall 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 shall be made only in accordance with the decree. A copy of the decree awarding compensation from the second injury fund shall in all cases be filed with the division.
  4. The commissioner, 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 second injury fund pursuant to § 50-6-206. 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 second injury fund.
    1. Before any proposed settlement is considered final in cases involving benefits from the second injury fund under this section, it shall either:
      1. Have the written approval of the commissioner or the commissioner's designee, in accordance with subdivision (g)(2); or
      2. Have been approved in accordance with § 20-13-103.
    2. The commissioner is authorized to settle certain second injury 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.
  5. In order to require the second injury fund to participate in the benefit review conference, a party shall serve notice of potential liability on the fund.
  6. “Party” or “parties,” as referenced in § 50-6-204(d)(5), shall include the second injury fund.

Acts 1919, ch. 123, § 20; Shan. Supp., § 3608a169; Code 1932, § 6871; Acts 1945, ch. 149, § 1; C. Supp. 1950, § 6871; Acts 1961, ch. 26, § 2; 1973, ch. 379, § 10; 1975, ch. 76, § 1; impl. am. Acts 1980, ch. 534, § 2; Acts 1980, ch. 479, § 2; T.C.A. (orig. ed.), § 50-1027; Acts 1983, ch. 217, §§ 3, 4; 1985, ch. 319, § 1; 1985, ch. 393, §§ 10, 22; 1989, ch. 238, § 1; 1996, ch. 944, § 15; 1997, ch. 533, § 4; 1999, ch. 520, § 41; 2001, ch. 366, § 1; 2002, ch. 695, § 3; 2004, ch. 962, § 25; 2005, ch. 390, §§ 7, 15, 16; 2006, ch. 1014, § 1.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

    The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

    Cross-References. Epileptics, § 50-6-213.

    Inapplicability to claims filed against state, § 9-8-307.

    Payment of penalties into second injury fund, § 50-6-118.

    Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, §§ 19, 40.

    Law Reviews.

    Tennessee's Workers' Compensation Second Injury Fund: Purpose and Practice, 34 U. Mem. L. Rev. 389 (2004).

    Third-Party Liability and Adjustments Between Different Employers and Insurance Carriers in Tennessee (William J. Harbison), 16 Vand. L. Rev. 1113 (1963).

    Attorney General Opinions. Constitutionality of Acts 1991, ch. 509, § 41, item 16, OAG 91-78 (8/27/91).

    Appropriation for Second Injury Fund, OAG 91-79 (8/27/91).

    1. In General. 2. Application of Section. 3. —Application of Subsection (a). 4. —Application of Subsection (b). 5. —Death Benefits Not Payable from Fund. 6. —“Workers' Compensation Awards.” 7. Purpose of Statute. 8. Funding. 9. Prior Permanent Injury Required. 10. Previous Compensable Injury Not Required. 11. Court Approval of Prior Awards. 12. Last Injurious Injury Rule. 13. Scope of Employer's Liability. 14. Second Injury Constituting Total Permanent Disability. 15. Pneumoconiosis. 16. Preexisting Psychological Disorders. 17. Claim Against Fund. 18. Notice of Prior Permanent Disability. 19. False Statements in Employment Applications. 20. Period of Limitations. 21. Joinder of Parties. 22. Payments Out of Second Injury Fund. 23. Computation of Compensation — Effect of Prior Injury. 24. Computation of Compensation — Credit for Prior Payments. 25. Apportionment of Benefits. 26. Maximum Compensation. 27. Rehabilitation. 28. Retaliatory Failure to Hire.

    In summary, T.C.A. § 50-6-208 provides that when an employee has received or will receive a workers' compensation award or awards for permanent disability to the body as a whole, and the combination of the awards equals or exceeds 100 percent permanent disability to the body as a whole, the awards are combined. The Second Injury Fund then becomes liable for any benefits due the employee in excess of 100 percent. Henson v. Lawrenceburg, 851 S.W.2d 809, 1993 Tenn. LEXIS 147 (Tenn. 1993).

    In the limited context of determining the liability of the Second Injury Fund, the purpose of T.C.A. § 50-6-208 is accomplished by equating a prior scheduled-member award to a percentage of the body as a whole by reference to the American Medical Association guidelines. Henson v. Lawrenceburg, 851 S.W.2d 809, 1993 Tenn. LEXIS 147 (Tenn. 1993).

    This section is applicable only to situations where employee, after previously sustaining a permanent injury or loss, or loss of use of certain members, becomes permanently and totally incapacitated through the loss or loss of use of another member, and does not apply where total loss of a member is suffered after a partial loss of the same member was suffered in a previous accident. Tomes v. Gray & Dudley Co., 201 Tenn. 697, 301 S.W.2d 389, 1957 Tenn. LEXIS 353 (1957).

    In action seeking additional award under this section based on injury to back after previous injury alleged to have resulted in loss of use of leg, trial court did not err in overruling demurrer to petition based on contention that this section was inapplicable to back injuries because no mention is made of “the back” as “another member” of the body. Stovall v. General Shoe Corp., 204 Tenn. 358, 321 S.W.2d 559, 1959 Tenn. LEXIS 288 (1959).

    This section did not apply where employee who suffered back injury in the course of employment was able to perform her work to the satisfaction of her employer despite preexisting back condition, and employee's compensation would not be reduced as a result of such preexisting condition. Laughlin Clinic, Inc. v. Henley, 208 Tenn. 252, 345 S.W.2d 675, 1961 Tenn. LEXIS 418 (1961).

    Diabetes mellitus was not a previously sustained permanent disability so as to entitle employee to award from second injury fund upon loss of leg resulting from injury to ankle. Green v. Combustion Engineering, Inc., 217 Tenn. 153, 395 S.W.2d 810, 1965 Tenn. LEXIS 528 (1965).

    In effect, this section renders the employer of a partially disabled employee liable only for the additional disability resulting from an accident during such employment and the employer is thus liable only for that disability which his employment of a disabled person may have occasioned with the “second injury fund” bearing the remaining liability from connection of two separate injuries which produce total permanent disability. Hedges Mfg. Co. v. Worley, 223 Tenn. 102, 442 S.W.2d 624, 1969 Tenn. LEXIS 393 (1969).

    Second injury to same foot as had been previously permanently injured did not fall within scope of second injury fund. Murray Oil Mfg. Co. v. Yarber, 223 Tenn. 404, 446 S.W.2d 256, 1969 Tenn. LEXIS 426 (1969).

    If a plaintiff is totally (100 percent) disabled through a subsequent injury, then a 20 percent veteran's administration award would be considered in calculating the liability of the fund under subsection (a) of T.C.A. § 50-6-208, because the veteran's administration award meets the statutory language of “sustained a permanent physical disability from any cause or origin,” assuming the employer had actual knowledge of the disability; however, where plaintiff is not totally disabled, any recovery from the fund must necessarily come under subsection (b) of that section. Cox v. Martin Marietta Energy Systems, 832 S.W.2d 534, 1992 Tenn. LEXIS 338 (Tenn. 1992).

    In order to decide whether a given case is covered by subsection (a) or subsection (b) of T.C.A. § 50-6-208, it is important for trial courts to make an explicit finding of fact regarding the extent of vocational disability attributable to the subsequent or last injury, without consideration of any prior injuries. Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 1999 Tenn. LEXIS 5 (Tenn. 1999).

    An injured worker may meet the criteria under both T.C.A. § 50-6-208(a) and (b); when the facts satisfy the requirements of both subsections, courts should apply the one which produces a result more favorable to the employer since the goal of the Second Injury Fund statute is to encourage the hiring of injured workers by limiting employer liability. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

    Trial court erred in limiting the employer's liability for the employee's permanent and total disability to 60 percent of 400 weeks (an award of 240 weeks). The parties agreed that the trial court correctly determined that the employee had a permanent and total disability and that 60 percent of that disability was due to his injury in May 2000; as a result, the trial court was required to hold that the employer was responsible for 60 percent of the employee's permanent and total disability until he reached the age of eligibility for social security (an award of 401 weeks), and that the Tennessee Second Injury Fund was responsible for the remainder (an award of 268 weeks). Gray v. Cullom Mach., Tool & Die, Inc., 152 S.W.3d 439, 2004 Tenn. LEXIS 1116 (Tenn. 2004).

    Because the evidence did not preponderate against the trial court's conclusion that the employee's permanent total disability was solely attributable to her fall, there was no basis upon which to apportion any amount of the award to the second injury fund. Eads v. Guideone Mut. Ins. Co., 197 S.W.3d 737, 2006 Tenn. LEXIS 599 (Tenn. July 7, 2006).

    If either one of the following requirements is lacking, subsection (a) of T.C.A. § 50-6-208 is to be applied, provided the employee becomes permanently and totally disabled by virtue of the subsequent injury and the knowledge requirement is satisfied: (1) Previous award of workers' compensation for permanent disability to the body as a whole; or (2) The combined awards equal or exceed 100 percent. Burris v. Cross Mountain Coal Co., 798 S.W.2d 746, 1990 Tenn. LEXIS 410 (Tenn. 1990).

    Subsection (a) of T.C.A. § 50-6-208 applies whether or not the prior permanent disability was work-related or compensated under workers' compensation laws. Burris v. Cross Mountain Coal Co., 798 S.W.2d 746, 1990 Tenn. LEXIS 410 (Tenn. 1990).

    Awards which have not been judicially approved are to be considered under subsection (a) of T.C.A. § 50-6-208, assuming all the requirements of that subsection are met. Hale v. CNA Ins. Cos., 799 S.W.2d 659, 1990 Tenn. LEXIS 423 (Tenn. 1990).

    A veteran's administration award is specifically covered under subsection (a) of T.C.A. § 50-6-208 “any cause or origin.” Cox v. Martin Marietta Energy Systems, 832 S.W.2d 534, 1992 Tenn. LEXIS 338 (Tenn. 1992).

    Under subsection (a) of T.C.A. § 50-6-208 the employer is liable only for the disability that would have resulted from the subsequent injury without consideration of the first. Minton v. State Industries, Inc., 825 S.W.2d 73, 1992 Tenn. LEXIS 129 (Tenn. 1992).

    Subsection (a) of T.C.A. § 50-6-208 can apply to scheduled members. Minton v. State Industries, Inc., 825 S.W.2d 73, 1992 Tenn. LEXIS 129 (Tenn. 1992).

    Only the requirements of subsection (a) of T.C.A. § 50-6-208 applied where the employee sustained permanent physical disability to his leg and a subsequent neck injury that rendered him permanently and totally disabled because, even if the award for the leg injury was converted to a body as a whole disability and added to the 50 percent permanent disability caused by the last injury, the sum of the combined awards was less than 100 percent. Perry v. Sentry Ins. Co., 938 S.W.2d 404, 1996 Tenn. LEXIS 811 (Tenn. 1996).

    The Second Injury Fund is liable under T.C.A. § 50-6-208(a) if: (1) The employee has previously sustained a permanent physical disability from any cause or origin, either compensable or noncompensable; and (2) The employee becomes permanently and totally disabled as the result of a subsequent compensable injury. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

    The trial court correctly recognized that the facts satisfied the requirements of T.C.A. § 50-6-208(a) where the employee had sustained prior injuries which caused permanent disability and he subsequently became permanently and totally disabled as a result of the compensable injury at issue. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

    The trial court correctly apportioned 10 percent of a permanent and total disability award to employer to reflect disability resulting from the last compensable injury. Hill v. CNA Ins. Co., 985 S.W.2d 959, 1999 Tenn. LEXIS 7 (Tenn. 1999), rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 125 (Tenn. Mar. 8, 1999).

    Trial court properly found that the Second Injury Fund was not liable because an employee sustained a permanent total disability. LaPradd v. Nissan N. Am., Inc., — S.W.3d —, 2016 Tenn. LEXIS 6, 2016 Tenn. LEXIS 6 (Tenn. Jan. 14, 2016).

    Subsection (b) of T.C.A. § 50-6-208 applies when an employee has received or will receive a workers' compensation award or awards for permanent disability to the body as a whole and the combination of the awards equals or exceeds 100 percent permanent disability to the body as a whole. Burris v. Cross Mountain Coal Co., 798 S.W.2d 746, 1990 Tenn. LEXIS 410 (Tenn. 1990).

    Where a second injury resulted in 100 percent permanent disability to the body as a whole, subsection (b) of T.C.A. § 50-6-208 applied because there had been a prior workers' compensation award of 20 percent permanent disability to the body as a whole and the combination of the awards (20 percent and 100 percent) was in “excess” of 100 percent, and the employer was thus liable for 80 percent and the second injury fund liable for 20 percent. Sims v. Bituminous Casualty Corp., 798 S.W.2d 751, 1990 Tenn. LEXIS 409 (Tenn. 1990).

    Subsection (b) of T.C.A. § 50-6-208 does not apply where the injury is not to the body as a whole. Minton v. State Industries, Inc., 825 S.W.2d 73, 1992 Tenn. LEXIS 129 (Tenn. 1992).

    Where a worker had two prior workers' compensation awards for permanent disability to the body as a whole which totaled 100 percent, the trial court correctly apportioned the award of 100 percent total disability to the second injury fund. Hill v. Eagle Bend Mfg., 942 S.W.2d 483, 1997 Tenn. LEXIS 170 (Tenn. 1997).

    The employee did not met the requirements of T.C.A. § 50-6-208(b) of having received awards for permanent disability which equal or exceed 100 percent where the employee had received prior workers' compensation awards totaling 35 percent permanent disability to the whole body prior to the last work-related injury at issue and he was found to have sustained a 20 percent permanent disability as a result of that last injury. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

    An employee will meet the requirements for recovery under T.C.A. § 50-6-208(b) if the employee has received or will receive workers' compensation awards, including the last one, for permanent disability to the whole body which exceed 100 percent when combined. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

    The Second Injury Fund is not liable for the payment of benefits to dependents in death cases; subsection (b) of T.C.A. § 50-6-208 specifically applies only to permanent disability compensation due to an employee for subsequent compensable injuries to the body as a whole and there is no provision in that section for the payment of benefits to dependents of deceased employees. Delashmit v. City of Covington, 889 S.W.2d 206, 1994 Tenn. LEXIS 331 (Tenn. 1994).

    The language “workers' compensation awards” contained in subsection (b) of T.C.A. § 50-6-208 is to be equaled with workers' compensation settlements that have been judicially approved as provided for in T.C.A. § 50-6-206. Hale v. CNA Ins. Cos., 799 S.W.2d 659, 1990 Tenn. LEXIS 423 (Tenn. 1990).

    The purpose of this section is to encourage employers to hire workers with existing handicaps which would impair their competitive positions as job seekers. E. I. Dupont De Nemours & Co. v. Friar, 218 Tenn. 554, 404 S.W.2d 518, 1966 Tenn. LEXIS 588 (1966); U. S. Pipe & Foundry Co. v. Caraway, 546 S.W.2d 215, 1977 Tenn. LEXIS 516 (Tenn. 1977); Arnold v. Tyson Foods, Inc., 614 S.W.2d 43, 1981 Tenn. LEXIS 428 (Tenn. 1981); Brown v. John Martin Constr. Co., 642 S.W.2d 145, 1982 Tenn. LEXIS 365 (Tenn. 1982); Minton v. State Industries, Inc., 825 S.W.2d 73, 1992 Tenn. LEXIS 129 (Tenn. 1992).

    The basic purpose of the second injury fund is to encourage the employment of persons with permanent physical disability by limiting to some extent the employer's workers' compensation liability. Burris v. Cross Mountain Coal Co., 798 S.W.2d 746, 1990 Tenn. LEXIS 410 (Tenn. 1990).

    The objective of the legislation creating the second injury fund is to limit the liability exposure of the employer by holding it responsible only for the employee's first 100% of workers' compensation disability, thereby encouraging the employment of injured workers. Reagan v. American Policyholders' Ins. Co., 842 S.W.2d 249, 1992 Tenn. LEXIS 572 (Tenn. 1992), rehearing denied, — S.W.2d —, 1992 Tenn. LEXIS 629 (Tenn. Nov. 30, 1992); Caudill v. Consolidation Coal Co., 910 S.W.2d 417, 1995 Tenn. LEXIS 695 (Tenn. Special Workers' Comp. App. Panel 1995).

    The public policy reasons underlying the enactment of the Second Injury Fund is to encourage employers to hire people who have previously sustained disabling injuries. Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 2000 Tenn. LEXIS 684 (Tenn. 2000).

    Statutes providing for funding of the second injury fund did not guarantee to eligible claimants that the fund would not be underfunded. Brock v. McWherter, 94 F.3d 242, 1996 FED App. 286P, 1996 U.S. App. LEXIS 22386 (6th Cir. Tenn. 1996).

    In order to sustain a claim under this section, the employee must prove that he sustained a previous permanent disability and that as a result of a second injury he has become permanently and totally disabled. Davis v. Alexander, 213 Tenn. 131, 372 S.W.2d 769, 1963 Tenn. LEXIS 475 (1963).

    Employee who averred that upon return to work after his first injury he was able to perform his regular assigned work without difficulty negatived element of prior permanent disability and was not entitled to recover from second injury fund. Davis v. Alexander, 213 Tenn. 131, 372 S.W.2d 769, 1963 Tenn. LEXIS 475 (1963).

    Previous permanent disability must be one capable of supporting an award under the statute before recovery can be sustained from second injury fund. Green v. Combustion Engineering, Inc., 217 Tenn. 153, 395 S.W.2d 810, 1965 Tenn. LEXIS 528 (1965); E. I. Dupont De Nemours & Co. v. Friar, 218 Tenn. 554, 404 S.W.2d 518, 1966 Tenn. LEXIS 588 (1966).

    In order to sustain a claim under second injury fund, employee was required to prove that he had sustained a previous permanent disability and that as a result of a second injury he became permanently and totally disabled. Murray Oil Mfg. Co. v. Yarber, 223 Tenn. 404, 446 S.W.2d 256, 1969 Tenn. LEXIS 426 (1969).

    In order for this section to apply, the first injury need not be an industrially compensable one and it only is necessary to establish that such injury constituted a permanent disability. Murray Oil Mfg. Co. v. Yarber, 223 Tenn. 404, 446 S.W.2d 256, 1969 Tenn. LEXIS 426 (1969).

    Unlike subsection (b) of T.C.A. § 50-6-208, there is nothing in subsection (a) of T.C.A. § 50-6-208, explicit or implicit, to suggest a requirement that the employee has sustained a previous compensable injury. Whiteside v. Morrison, Inc., 799 S.W.2d 213, 1990 Tenn. LEXIS 424 (Tenn. 1990).

    Prior awards must be court approved before such awards may be considered in determining the respective liability of the employer and the second injury fund under subsection (b) of T.C.A. § 50-6-208. Hale v. CNA Ins. Cos., 799 S.W.2d 659, 1990 Tenn. LEXIS 423 (Tenn. 1990); Huddleston v. Hartford Accident & Indem. Co., 858 S.W.2d 315, 1993 Tenn. LEXIS 254 (Tenn. 1993).

    Nothing in the express language of subsection (b) of T.C.A. § 50-6-208, authorizing judicial consideration of a prior “workers' compensation award or awards for permanent disability to the body as a whole,” would restrict Tennessee courts from recognizing valid and enforceable out-of-state awards that are the functional equivalent of court-approved in-state awards. Huddleston v. Hartford Accident & Indem. Co., 858 S.W.2d 315, 1993 Tenn. LEXIS 254 (Tenn. 1993).

    The last injurious injury rule is not applicable where separate suits are filed for each injury and where, prior to the second injury, there has been an assessment of permanent disability properly attributable to the first injury. Riley v. INA/Aetna Ins. Co., 825 S.W.2d 80, 1992 Tenn. LEXIS 536 (Tenn. 1992).

    Regardless of the employee's history concerning work-related injuries, the employer will only be responsible for the employee's first 100 percent workers' compensation disability to the body as a whole and the second injury fund will be responsible for any benefits in excess thereof. Burris v. Cross Mountain Coal Co., 798 S.W.2d 746, 1990 Tenn. LEXIS 410 (Tenn. 1990).

    There is no statutory or equitable basis for using 400 weeks as the basis of apportionment under T.C.A. §§ 50-6-207(4)(A)(i) and 50-6-208, notwithstanding the argument that if an employer's liability is not limited to a percentage of 400 weeks, some employers might resist hiring young workers with disabilities in light of the legislation extending benefits to age 65 for permanent total disability; an employer's liability should be calculated based upon the total amount of benefits awarded to age 65. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

    Where employee who had sustained prior permanent disability in amount of 46.125 percent sustained total permanent disability from silicosis in percentage terms of 100 percent without considering the prior permanent disability, employer was liable for full amount of the disability from silicosis and no benefits were due from second injury fund. Church v. N.B.C. Co., 224 Tenn. 658, 461 S.W.2d 387, 1970 Tenn. LEXIS 370 (1970).

    Inasmuch as §§ 50-6-302 and 50-6-303 incorporated into Tennessee law that portion of 30 U.S.C. §§ 901, 902, 921-925, 931-941 and 951, cited as the Black Lung Benefits Act of 1972, which concerns coal workers' pneumoconiosis, pneumoconiosis is not an “injury” or “the loss of use of another member” within the meaning of this section. Moore v. Old Republic Ins. Co., 512 S.W.2d 564, 1974 Tenn. LEXIS 489 (Tenn. 1974).

    The legislature's consistent use of the term “physical” to modify the terms “previous disability” and “previous impairment” makes clear the legislature's intent to expressly exclude preexisting psychological disorders. Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 2000 Tenn. LEXIS 684 (Tenn. 2000).

    An employee's claim against the Second Injury Fund is to be litigated at the same time as the employee's claim against his employer. Farr v. Head, 811 S.W.2d 894, 1991 Tenn. LEXIS 244 (Tenn. 1991).

    The Second Injury fund is liable under T.C.A. § 50-6-208(a) if: (1) The employee has previously substained a permanent physical disability from any cause or origin either compensable or noncompensable; and (2) The emplyee becomes permanently and totally disabled as a result of the subsequent injury. Scales v. City of Oak Ridge, 53 S.W.3d 649, 2001 Tenn. LEXIS 618 (Tenn. 2001).

    The responsibility of timely raising a claim against the Second Injury Fund falls upon the employee, not the employer, and the employee's failure to assert such a claim does not foreclose an employer from claiming the benefit of limited liability. Hollingsworth v. S & W Pallet Co., 74 S.W.3d 347, 2002 Tenn. LEXIS 213 (Tenn. 2002).

    Employee's failure to assert a claim against the Second Injury Fund should not bar the employer from receiving the benefits bestowed by T.C.A. § 50-6-208, even though the employer raised the issue of preexisting disability after the limitations period expired; thus, the trial court properly limited the employer's liability to the 40 percent disability allocated to the employee's second heart attack. Hollingsworth v. S & W Pallet Co., 74 S.W.3d 347, 2002 Tenn. LEXIS 213 (Tenn. 2002).

    An employer was not required to have notice or knowledge at the time of hiring that the employee had a permanent disability. Strong v. Insurance Co. of North America, 490 S.W.2d 162, 1973 Tenn. LEXIS 515 (Tenn. 1973).

    Requirement that employer establish by written records his prior knowledge of employee's preexisting impairment was satisfied where personnel file contained detailed medical history of employee. U. S. Pipe & Foundry Co. v. Caraway, 546 S.W.2d 215, 1977 Tenn. LEXIS 516 (Tenn. 1977).

NOTES TO DECISIONS

1. In General.

2. Application of Section.

3. —Application of Subsection (a).

4. —Application of Subsection (b).

5. —Death Benefits Not Payable from Fund.

6. —“Workers' Compensation Awards.”

7. Purpose of Statute.

8. Funding.

9. Prior Permanent Injury Required.

10. Previous Compensable Injury Not Required.

11. Court Approval of Prior Awards.

12. Last Injurious Injury Rule.

13. Scope of Employer's Liability.

14. Second Injury Constituting Total Permanent Disability.

15. Pneumoconiosis.

16. Preexisting Psychological Disorders.

17. Claim Against Fund.

18. Notice of Prior Permanent Disability.

T.C.A. § 50-6-208 does not specify the nature or type of written records which are sufficient to meet its requirements. The section does however require some written record of the employer's knowledge of the preexisting physical impairment. Arnold v. Tyson Foods, Inc., 614 S.W.2d 43, 1981 Tenn. LEXIS 428 (Tenn. 1981).

Where the only written record pertaining to plaintiff's health and physical condition prior to the injury was plaintiff's employment application which, although it contained a “personal health history” section, made absolutely no reference to any permanent and preexisting physical impairment, employer had failed to comply with the statutory requirements of the second injury fund, even though the employer had actual knowledge of the employee's patently visible handicap at the time of hiring. Arnold v. Tyson Foods, Inc., 614 S.W.2d 43, 1981 Tenn. LEXIS 428 (Tenn. 1981).

An employee-supervisor's knowledge of his own prior disability cannot be imputed to the employer to satisfy the “written record” requirement of T.C.A. § 50-6-208. Brown v. John Martin Constr. Co., 642 S.W.2d 145, 1982 Tenn. LEXIS 365 (Tenn. 1982).

Subsection (a) of T.C.A. § 50-6-208 requires the employer to have had actual knowledge of the preexisting permanent physical disability prior to the subsequent injury. Burris v. Cross Mountain Coal Co., 798 S.W.2d 746, 1990 Tenn. LEXIS 410 (Tenn. 1990).

Subsection (a) of T.C.A. § 50-6-208 does not require the employer to be fully aware of all underlying medical causes of disability, but merely requires that the employer be aware that such a disability exists. Whiteside v. Morrison, Inc., 799 S.W.2d 213, 1990 Tenn. LEXIS 424 (Tenn. 1990).

19. False Statements in Employment Applications.

Before a false statement in an employment application will bar benefits, the employee must have knowingly and willfully made false representation as to his physical condition, the employer must have relied upon the false representation, this reliance must have been a substantial factor in the hiring and there must have been a causal connection between the false representation and the injury. Federal Copper & Aluminum Co. v. Dickey, 493 S.W.2d 463, 1973 Tenn. LEXIS 503 (Tenn. 1973); Laminite Plastics Mfg. Co. v. Greene, 561 S.W.2d 458, 1978 Tenn. LEXIS 583 (Tenn. 1978).

Where the employer, knowing the applicant to be uneducated, did not inquire about applicant's medical history when accepting an application, which had been completed by another person and was unsigned, the applicant was not denied compensation on the ground that medical history given in his application was false. Laminite Plastics Mfg. Co. v. Greene, 561 S.W.2d 458, 1978 Tenn. LEXIS 583 (Tenn. 1978).

Where employee admittedly misrepresented her prior medical history on employment application, knowledge of the medical history by another employee engaged in conspiracy to conceal the medical history cannot be imputed to the employer. Foster v. ESIS, Inc., 563 S.W.2d 180, 1978 Tenn. LEXIS 530 (Tenn. 1978).

20. Period of Limitations.

The statute of limitations as set forth in the workers' compensation act is applicable to all benefits under the act including claims against the second injury fund. Travelers Ins. Co. v. Austin, 521 S.W.2d 783, 1975 Tenn. LEXIS 695 (Tenn. 1975).

By placing the second injury fund into the workers' compensation act and remaining silent as to the time in which a claim against the fund is to be filed, while at the same time expressing the intent that the claim against the fund is to be tried with the employee's claim against his employer, the general assembly intended the time limitation on filing a workers' compensation claim against the employer to be equally applicable to a claim against the second injury fund. Travelers Ins. Co. v. Austin, 521 S.W.2d 783, 1975 Tenn. LEXIS 695 (Tenn. 1975).

An action against the Second Injury Fund under subsection (a) of T.C.A. § 50-6-208 must be commenced within one year after the occurrence of the injury, as required by T.C.A. § 50-6-224(1) (now § 50-6-224(a)(1)) or, if the employer has made voluntary payment of compensation benefits within that period, within one year after the cessation of benefits as required by T.C.A. § 50-6-203. Pearson v. Day Int'l, 951 S.W.2d 375, 1996 Tenn. LEXIS 464 (Tenn. Special Workers' Comp. App. Panel 1996).

21. Joinder of Parties.

An employee's claim against the second injury fund is to be litigated at the same time as his claim against his employer. Travelers Ins. Co. v. Austin, 521 S.W.2d 783, 1975 Tenn. LEXIS 695 (Tenn. 1975).

22. Payments Out of Second Injury Fund.

Where claimant who in early childhood became blind in left eye subsequently sustained injury during his employment which resulted in loss of right eye, balance due for total and permanent disability after payment by employer for injury to right eye was payable out of second injury fund. Giles County v. Rainey, 195 Tenn. 239, 258 S.W.2d 774, 1953 Tenn. LEXIS 329 (1953).

If the employer knew of a preexisting physical condition of the employee which detracted from the employee's competitiveness in the job market and hired him in spite of such condition, the second injury fund would be liable if the second injury rendered the employee totally disabled. E. I. Dupont De Nemours & Co. v. Friar, 218 Tenn. 554, 404 S.W.2d 518, 1966 Tenn. LEXIS 588 (1966).

Employer which was unaware of employee's preexisting disability from spondylolisthesis at time of hiring employee was liable for full amount of compensation award because of accident resulting in permanent disability of employee, and second injury fund was not liable for any part of the award. E. I. Dupont De Nemours & Co. v. Friar, 218 Tenn. 554, 404 S.W.2d 518, 1966 Tenn. LEXIS 588 (1966).

Where preexisting physical disability is not one which even a layman would label patent, the presumption will be that the employer was unaware of such condition and second injury fund will not be liable where second injury renders employee totally disabled unless employer sustains the burden of showing knowledge of the preexisting injury at the time of hiring. E. I. Dupont De Nemours & Co. v. Friar, 218 Tenn. 554, 404 S.W.2d 518, 1966 Tenn. LEXIS 588 (1966).

Where employee who had suffered back injury had previously been awarded ratings of 25 percent and 10 percent permanent partial disability for two previous injuries and there was no evidence, medical or otherwise, that the injuries were greater, evidence did not support finding that second injury fund was liable for 50 percent of award for back injury and assignment of error that fund was liable for no more than 35 percent would be sustained. Bland Casket Co. v. Davenport, 221 Tenn. 492, 427 S.W.2d 839, 1968 Tenn. LEXIS 479 (1968).

Separate injuries to separate parts of the same member are not injuries to “another member” within the meaning of this section so as to entitle employee to payments from second injury fund. Campbell v. Travelers Ins. Co., 482 S.W.2d 779, 1972 Tenn. LEXIS 359 (Tenn. 1972).

Second injury fund was not liable for pneumoconiosis which caused permanent and total disability of miner, though miner had suffered a previous disability while working for another employer, where medical testimony sustained conclusion that he was totally disabled independent of any prior disability. McKamey v. Pee Wee Mining Co., 498 S.W.2d 94, 1973 Tenn. LEXIS 455 (Tenn. 1973).

Where claimant was awarded permanent disability benefits totaling 122 percent to the body as a whole, the employer's insurer was liable for all unpaid temporary, total disability benefits and 53 percent of permanent disability benefits, and the second injury fund was liable for the final and remaining 22 percent of permanent disability benefits. Fink v. Caudle, 856 S.W.2d 952, 1993 Tenn. LEXIS 378 (Tenn. 1993).

The trial court did not err in determining that the plaintiff was entitled to seventy percent disability from the Second Injury Fund, where plaintiff was 100 percent disabled but some of his disability was found to be due to prior injuries and a congenital speech impediment. Cameron v. Kite Painting Co., 860 S.W.2d 41, 1993 Tenn. LEXIS 291 (Tenn. 1993).

Where liability is apportioned to the second injury fund, the payments by the fund do not begin until “after completion of the payments” by the employer. Perry v. Sentry Ins. Co., 938 S.W.2d 404, 1996 Tenn. LEXIS 811 (Tenn. 1996).

23. Computation of Compensation — Effect of Prior Injury.

Trial court, in computing award for 25 percent permanent disability resulting from second accident, did not err in declining to take into consideration 25 percent permanent disability resulting from a previous accident. American Casualty Ins. Co. v. White, 207 Tenn. 294, 339 S.W.2d 15, 1960 Tenn. LEXIS 458 (1960).

Under the second injury statute, computation of an award is to be made on the basis of the statutory schedule without regard to the earlier injury. Hedges Mfg. Co. v. Worley, 223 Tenn. 102, 442 S.W.2d 624, 1969 Tenn. LEXIS 393 (1969).

The last successive employer or insurance carrier, taking the employee as he is found at the time of the accident, will be liable for the entire resulting disability, including all medical expenses arising from the disability and regardless of any preexisting condition. Bennett v. Howard Johnsons Motor Lodge, 714 S.W.2d 273, 1986 Tenn. LEXIS 779 (Tenn. 1986).

Case was remanded where trial court did not properly calculate its apportionment of benefits between the city and the Second Injury Fund pursuant to subsections (a) and (b) of T.C.A. § 50-6-208 because it did not make a specific finding of fact regarding the extent of disability caused by employee's second injury without consideration of his prior injury. Under either T.C.A. 50-6-208(a) or (b), it is essential that the trial court determine the extent of disability resulting from the subsequent injury without consideration of the prior injury. Allen v. City of Gatlinburg, 36 S.W.3d 73, 2001 Tenn. LEXIS 57 (Tenn. 2001).

24. Computation of Compensation — Credit for Prior Payments.

Amounts paid out for temporary total disability benefits could not be credited to amounts payable for permanent total disability either by employer or by second injury fund. Hedges Mfg. Co. v. Worley, 223 Tenn. 102, 442 S.W.2d 624, 1969 Tenn. LEXIS 393 (1969).

25. Apportionment of Benefits.

In the apportionment of disability benefits between the employer and the fund, the language “workers' compensation award or awards” does not include a veteran's administration disability award. Cox v. Martin Marietta Energy Systems, 832 S.W.2d 534, 1992 Tenn. LEXIS 338 (Tenn. 1992).

26. Maximum Compensation.

The limitation of maximum compensation provided by § 50-6-205 applies to cases involving the second injury fund. Hedges Mfg. Co. v. Worley, 223 Tenn. 102, 442 S.W.2d 624, 1969 Tenn. LEXIS 393 (1969).

The 1985 amendment to subdivision (b)(2) of T.C.A. § 50-6-208 does not authorize an exception to the maximum total benefit limitation of T.C.A. § 50-6-102  so that an employee who has been awarded temporary total disability benefits and permanent total disability benefits can recover more than the statutory maximum. Smith v. Liberty Mut. Ins. Co., 762 S.W.2d 883, 1988 Tenn. LEXIS 266 (Tenn. 1988).

There is no requirement that an employer have knowledge of the prior workers' compensation awards at the time, or during the time, of employment of the injured worker in order for the employer to take advantage of the limitation of an employer's liability described in subdivision (b)(1) of T.C.A. § 50-6-208. Sitz v. Goodyear Truck Tire Center, 762 S.W.2d 886, 1988 Tenn. LEXIS 267 (Tenn. 1988).

In cases involving the Second Injury Fund, an employer's liability for an award for permanent and total disability is not capped at 400 weeks where benefits are awarded to age 65. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

27. Rehabilitation.

“Rehabilitation” does not refer to a clinically supervised rehabilitation program or to formal institutionalized retraining. While this might be one form of rehabilitation, the term refers to an employee's having the ability and willpower to return to work and to demonstrate the existence of substantial earning capacity despite his previous permanent total disability. Allkins v. Thomas Furniture Co., 762 S.W.2d 557, 1988 Tenn. LEXIS 255 (Tenn. 1988).

Nothing precludes an employee adjudged 100 percent permanently disabled from resuming employment if the employee is sufficiently rehabilitated. Burris v. Cross Mountain Coal Co., 798 S.W.2d 746, 1990 Tenn. LEXIS 410 (Tenn. 1990).

Employee who was permanently and totally disabled as provided for in T.C.A. § 50-6-207(4)(A)(i) was barred from receiving additional vocational disability benefits unless the employee could establish rehabilitation from the injury which caused the permanent and total disability, and this principle applied even though the employee temporarily returned to work following the first injury and suffered a subsequent work-related injury close in time; the employee was not entitled to an award of workers'  compensation benefits for her second injury because the evidence did not show that she was rehabilitated from the injury that resulted in the earlier award of permanent total disability. Turner v. Homecrest Corp., 226 S.W.3d 273, 2007 Tenn. LEXIS 369 (Tenn. Apr. 26, 2007).

28. Retaliatory Failure to Hire.

Job applicant does not have a cause of action under the Tennessee Workers'  Compensation Act against a prospective employer for failure to hire if the prospective employer failed to hire the job applicant because that applicant had filed, or is likely to file, a workers'  compensation claim against a previous employer; moreover, the Second Injury Fund does not show a legislative intent to allow job applicants who have been previously injured to sue prospective employers for failure to hire. Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 2015 Tenn. LEXIS 630 (Tenn. Aug. 21, 2015).

50-6-209. Maximum compensation.

  1. In all cases of permanent total disability of an employee covered by this chapter, sixty-six and two-thirds percent (662/3%) of the average weekly wages shall be paid, subject to maximum compensation as follows: where there are or are not persons dependent upon each injured employee, the maximum weekly benefit per week.
    1. In all cases of death of an employee covered by this chapter, sixty-six and two-thirds percent (662/3%) of the average weekly wages shall be paid in cases where the deceased employee leaves dependents, subject to the maximum weekly benefit.
    2. In all cases of death of an employee covered by this chapter, and where the employee leaves no dependents, as provided in § 50-6-210, then the lump sum amount of twenty thousand dollars ($20,000) shall be paid to the estate of the deceased employee.
    3. The total amount of compensation payable under this subsection (b) shall not exceed the maximum total benefit exclusive of medical, hospital and funeral benefits.

Acts 1923, ch. 84, § 1; Shan. Supp., §§ 3608a178, 3608a179; Acts 1927, ch. 40, § 1; mod. Code 1932, §§ 6879-6881; Acts 1941, ch. 90, §§ 6, 7; 1947, ch. 139, §§ 7-9; 1949, ch. 277, §§ 4-6; C. Supp. 1950, §§ 6879-6881; Acts 1953, ch. 111, §§ 3-5; 1955, ch. 182, §§ 6-8; 1957, ch. 270, §§ 4-6; 1959, ch. 172, §§ 7-9; 1963, ch. 362, § 1; 1965, ch. 158, § 1; 1967, ch. 313, §§ 1, 2; 1969, ch. 196, §§ 1, 2; 1971, ch. 134, §§ 1, 2; 1973, ch. 379, §§ 7, 8; 1974, ch. 617, §§ 3-5; 1975, ch. 86, §§ 3-5; 1977, ch. 354, §§ 3-5; 1979, ch. 365, §§ 3-5; impl. am. Acts 1980, ch. 534, § 1; Acts 1980, ch. 607, §§ 6-8; 1980, ch. 650, § 2; 1981, ch. 333, §§ 6-8; 1982, ch. 880, §§ 6-8; T.C.A. (orig. ed.), §§ 50-1008, 50-1010, 50-1011; Acts 1985, ch. 393, § 12; 1999, ch. 404, § 1.

Cross-References. Maximum compensation limits inapplicable, § 50-6-303.

National guard, awards in case of injury or death, § 58-1-230.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 658.

Law Reviews.

Workmen's Compensation — Subsequent Accident Not a Direct and Natural Consequence of Disability, 30 Tenn. L. Rev. 322 (1963).

NOTES TO DECISIONS

1. Application.

The limitation of this section applies to all cases of death of an employee covered by the Workers' Compensation Law. Haynes v. Columbia Pictures Corp., 178 Tenn. 648, 162 S.W.2d 383, 1941 Tenn. LEXIS 92 (1942).

The maximum limitations on workers' compensation benefits set forth in various sections of the Tennessee statutes are not applicable to persons suffering from coal workers' pneumoconiosis. Phillips v. Old Republic Ins. Co., 623 S.W.2d 920, 1981 Tenn. LEXIS 502 (Tenn. 1981).

2. Construction.

This section must be construed together with § 50-6-210 fixing the maximum time during which payments may be made in such cases. Haynes v. Columbia Pictures Corp., 178 Tenn. 648, 162 S.W.2d 383, 1941 Tenn. LEXIS 92 (1942).

3. —Maximum Weekly Benefit.

In the case of an employee who died with dependents in February 1993, the “maximum weekly benefit” was determined based upon the employee's average weekly wage; not until 662/3% of the employee's average weekly wage equals or exceeds 78% of the state's average weekly wage would that figure be used to determine the amount of compensation benefits payable to the dependents. Spencer v. Towson Moving & Storage, 922 S.W.2d 508, 1996 Tenn. LEXIS 306 (Tenn. 1996).

4. Jurisdiction of Federal Court.

Since the section creating liability for death benefits contemplates a single action for the determination of claimant's right to benefits and a single judgment for the award granted, it matters not that the award when granted is payable in installments or that these installments may be terminated by certain contingencies before the total amount of the judgment is paid; thus a federal district court can have jurisdiction in a death benefit action under this statute. Aetna Casualty & Surety Co. v. Flowers, 330 U.S. 464, 67 S. Ct. 798, 91 L. Ed. 1024, 1947 U.S. LEXIS 2550 (1947).

5. Jurisdiction of Supreme Court.

Where judgment in workers' compensation case was in favor of employee and employer appealed but pending such appeal employee died and the action was revived in the name of the administratrix, administratrix could not in the same proceeding, petition the supreme court for benefits to the surviving dependents since the jurisdiction of the supreme court is appellate only, and such petition was remanded to trial court for decision on merits. Oman Constr. Co. v. Bray, 583 S.W.2d 303, 1979 Tenn. LEXIS 450 (Tenn. 1979).

6. When Death Compensable.

Death of a worker is compensable if it is the result of injury or the injury substantially contributes thereto. Lenoir Car Works v. Hill, 163 Tenn. 578, 44 S.W.2d 321, 1931 Tenn. LEXIS 151 (1931).

50-6-210. Dependents — Compensation payments.

  1. Persons Wholly Dependent.  For the purposes of this chapter, the following persons shall be conclusively presumed to be wholly dependent:
    1. A surviving spouse, unless it is shown that the surviving spouse was voluntarily living apart from the surviving spouse's spouse at the time of injury; and
    2. Children under sixteen (16) years of age.
  2. Persons Prima Facie Dependent.  Children between sixteen (16) and eighteen (18) years of age, or those over eighteen (18) years of age, if physically or mentally incapacitated from earning, shall prima facie be considered dependent.
  3. Actual Dependents.  Wife, husband, child, mother, father, grandparent, sister, brother, mother-in-law, father-in-law, who were wholly supported by the deceased employee at the time of death and for a reasonable period of time immediately prior to the time of death, shall be considered actual dependents, and payment of compensation shall be made in the order named.
  4. Partial Dependents.  Any member of a class named in subsection (c) who regularly derived part of the member's support from the wages of the deceased employee at the time of death and for a reasonable period of time immediately prior to the time of death shall be considered a partial dependent, and payment of compensation shall be made to the dependents in the order named.
  5. Compensation in Death Cases.  In death cases, compensation payable to dependents shall be computed on the following basis, and shall be paid to the persons entitled to compensation, without administration:
    1. Surviving Spouse and No Dependent Child.   If the deceased employee leaves a surviving spouse and no dependent child, there shall be paid to the surviving spouse fifty percent (50%) of the average weekly wages of the deceased.
    2. Surviving Spouse and Children.  If the deceased employee leaves a surviving spouse and one (1) or more dependent children, there shall be paid to the surviving spouse for the benefit of the surviving spouse and the child or children, sixty-six and two-thirds percent (662/3%) of the average weekly wages of the deceased.
    3. Surviving Spouse and Children, How Paid.   In all cases where compensation is payable to a surviving spouse for the benefit of the surviving spouse and dependent child or children, the court shall have the power to determine in its discretion what portion of the compensation shall be applied for the benefit of any child or children, and may order the compensation paid to a guardian.
    4. Remarriage of Surviving Spouse.  Upon the remarriage of a surviving spouse, if there is no child of the deceased employee, the compensation shall terminate; but if there is a child or children under eighteen (18) years of age, or over eighteen (18) years of age if physically or mentally incapacitated from earning, from the time of the remarriage the child or children shall have status of orphan or orphans, and draw compensation accordingly, not, however, to exceed sixty-six and two-thirds percent (662/3%) of the average weekly wages of the deceased.
    5. Dependent Orphans.  If the deceased employee leaves one (1) dependent orphan, there shall be paid fifty percent (50%) of the average weekly wages of the deceased; if the deceased leaves two (2) or more dependent orphans, there shall be paid sixty-six and two-thirds percent (662/3%) of the average weekly wages of the deceased.
    6. Parent or Parents.  If the deceased employee leaves no surviving spouse or child entitled to any payment under this section, but should leave a parent or parents, either or both of whom are wholly dependent on the deceased, there shall be paid, if only one (1) parent, twenty-five percent (25%) of the average weekly wages of the deceased to the parent, and if both parents, thirty-five percent (35%) of the average weekly wages of the deceased to the parents.
    7. Grandparent, Brother, Sister, Mother-in-law or Father-in-law.   If the deceased leaves no surviving spouse or dependent child or parent entitled to any payment under this section, but leaves a grandparent, brother, sister, mother-in-law or father-in-law wholly dependent upon the deceased for support, there shall be paid to the dependent, if only one (1), twenty percent (20%) of the average weekly wages of the deceased, or, if more than one (1), twenty-five percent (25%) of the average weekly wages of the deceased, divided between them or among them share and share alike.
    8. Compensation to Dependents to Cease upon Death or Marriage.  If compensation is being paid under this chapter to any dependent, the compensation shall cease, upon the death or marriage of the dependent, unless otherwise provided in this section.
    9. Partial Dependents to Receive Proportion.   Partial dependents shall be entitled to receive only that proportion of the benefits provided for actual dependents that the average amount of the wages regularly contributed by the deceased to the partial dependent at the time of, and for a reasonable time immediately prior to, the injury, bore to the total income of the dependent during the same time.
    10. Maximum and Minimum Compensation.   The compensation payable in case of death to persons wholly dependent shall be subject to the maximum weekly benefit and minimum weekly benefit; provided, that if at the time of injury the employee receives wages of less than the minimum weekly benefit, the compensation shall be the full amount of the wages a week, but in no event shall the compensation payable under this provision be less than the minimum weekly benefit. The compensation payable to partial dependents shall be subject to the same maximum and minimum specified in this subdivision (e)(10); provided, that if the income loss of the partial dependents by the death is less than the minimum weekly benefit, then the dependents shall receive the full amount of the income loss. This compensation shall be paid during dependency not to exceed the maximum total benefit, payments to be paid at the intervals when the wage was payable, as nearly as may be.
    11. Orphans and Other Children.  In computing and paying compensation to orphans or other children, in all cases, only those under eighteen (18) years of age, or those over eighteen (18) years of age who are physically or mentally incapacitated from earning, shall be included, the former to receive compensation only during the time they are under eighteen (18) years of age, the latter only for the time they are so incapacitated. If the dependent is attending a recognized educational institution, benefits shall be paid until twenty-two (22) years of age.
    12. Actual Dependents.  Actual dependents shall be entitled to take compensation in the order named in subsection (c), until sixty-six and two-thirds percent (66 2/3%) of the monthly wages of the deceased during the time specified in this chapter have been exhausted, but the total compensation to be paid to all actual dependents of a deceased employee shall not exceed in the aggregate the maximum weekly benefit.
    13. Dependency Status Not Affected by Certain Assistance Payments.   Sums distributed under the Employment Security Law, compiled in chapter 7 of this title; the Old-Age Assistance Law, compiled in title 71, chapter 2, part 2; the Aid to Dependent Children Law, compiled in title 71, chapter 3, part 1; Aid to Blind Law, compiled in title 71, chapter 4, part 1; the federal Social Security Act, compiled in 42 U.S.C. § 301 et seq., or any other public assistance distributed by the United States government, the state, or any county or municipality of the state, shall not be considered income within the meaning of this law and shall not affect the status or compensation of any person entitled to benefits as provided in this chapter.
      1. If compensation is payable due to the death of an employee under this chapter, and the decedent leaves an alien dependent or dependents residing outside of the United States, a workers' compensation mediator is authorized to conduct alternative dispute resolution proceedings to attempt to resolve the issues; provided, that a representative or representatives of the employer and a duly authorized representative or representatives of the consul or other representative of the foreign country in which the dependent or dependents reside are present. If the parties reach a settlement agreement, the administrator or administrator's designee is authorized to approve the settlement, and the order of the administrator or the administrator's designee shall be entitled to the same standing as a judgment of a court of record for all purposes. If the parties are unable to reach an agreement, the employer or employee's representative may seek relief pursuant to § 50-6-239 following the issuance of a dispute certification notice.
      2. The administrator, or administrator's designee, or the court shall order payment of any compensation due from the employer to be made to the duly accredited consular officer of the country where the beneficiaries are citizens. The consular officer or the consular officer's representative shall be fully authorized and empowered by this law to settle all claims for compensation and to receive the compensation for distribution to the persons entitled to the compensation.
    1. The distribution of funds in cases described in subdivision (f)(1)(A) shall be made only upon the order of the administrator, the administrator's designee, or the court that heard the matter. If required to do so by the administrator, the administrator's designee, or the court, the consular officer or the consular officer's representative shall execute a good and sufficient bond to be approved by the administrator, the administrator's designee, or the court, conditioned upon the faithful accounting of the moneys so received by the consular officer or the consular officer's representative. Before the bond is discharged, a verified statement of receipts and disbursements of the moneys shall be made and filed with the administrator or the court, as appropriate.
    2. The consular officer or the consular officer's representative shall, before receiving the first payment of the compensation, and at reasonable times thereafter, upon the request of the employer, furnish to the employer a sworn statement containing a list of the dependents with the name, age, residence, extent of dependency and relation to the deceased of each dependent.

Acts 1919, ch. 123, § 30; 1923, ch. 84, § 1; Shan. Supp., § 3608a181; Acts 1927, ch. 40, § 3; Code 1932, § 6883; Acts 1941, ch. 90, § 8; 1943, ch. 110, § 1; 1947, ch. 139, § 10; 1949, ch. 277, § 7; C. Supp. 1950, § 6883; Acts 1953, ch. 111, § 6; 1955, ch. 182, §§ 9-16; 1957, ch. 270, §§ 7, 8; 1959, ch. 172, §§ 10, 11; 1963, ch. 362, § 1; 1965, ch. 158, § 1; 1967, ch. 313, §§ 1, 2; 1969, ch. 196, §§ 1, 2; 1971, ch. 134, §§ 1, 2, 4; 1972, ch. 699, § 3; 1973, ch. 379, § 9; 1974, ch. 617, §§ 6, 7; 1975, ch. 86, §§ 6, 7; 1977, ch. 354, § 6; 1979, ch. 365, § 6; 1979, ch. 370, § 1; impl. am. Acts 1980, ch. 534, § 1; Acts 1980, ch. 607, §§ 9, 10, 11; 1981, ch. 333, §§ 9, 10; 1982, ch. 880, §§ 9, 10; T.C.A. (orig. ed.), § 50-1013; Acts 1985, ch. 393, § 13; 2013, ch. 289, § 56.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which added subsection (f), shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, added (f).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Cross-References. Maximum compensation limits inapplicable, § 50-6-303.

50-6-210. Dependents — Compensation payments. [Applicable to injuries occurring prior to July 1, 2014.]

  1. Persons Wholly Dependent.  For the purposes of this chapter, the following persons shall be conclusively presumed to be wholly dependent:
    1. A surviving spouse, unless it is shown that the surviving spouse was voluntarily living apart from the surviving spouse's spouse at the time of injury; and
    2. Children under sixteen (16) years of age.
  2. Persons Prima Facie Dependent.  Children between sixteen (16) and eighteen (18) years of age, or those over eighteen (18) years of age, if physically or mentally incapacitated from earning, shall prima facie be considered dependent.
  3. Actual Dependents.  Wife, husband, child, mother, father, grandparent, sister, brother, mother-in-law, father-in-law, who were wholly supported by the deceased employee at the time of death and for a reasonable period of time immediately prior to the time of death, shall be considered actual dependents, and payment of compensation shall be made in the order named.
  4. Partial Dependents.  Any member of a class named in subsection (c) who regularly derived part of the member's support from the wages of the deceased employee at the time of death and for a reasonable period of time immediately prior to the time of death shall be considered a partial dependent, and payment of compensation shall be made to the dependents in the order named.
  5. Compensation in Death Cases.  In death cases, compensation payable to dependents shall be computed on the following basis, and shall be paid to the persons entitled to compensation, without administration:
    1. Surviving Spouse and No Dependent Child.   If the deceased employee leaves a surviving spouse and no dependent child, there shall be paid to the surviving spouse fifty percent (50%) of the average weekly wages of the deceased.
    2. Surviving Spouse and Children.  If the deceased employee leaves a surviving spouse and one (1) or more dependent children, there shall be paid to the surviving spouse for the benefit of the surviving spouse and the child or children, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages of the deceased.
    3. Surviving Spouse and Children, How Paid.   In all cases where compensation is payable to a surviving spouse for the benefit of the surviving spouse and dependent child or children, the court shall have the power to determine in its discretion what portion of the compensation shall be applied for the benefit of any child or children, and may order the compensation paid to a guardian.
    4. Remarriage of Surviving Spouse.  Upon the remarriage of a surviving spouse, if there is no child of the deceased employee, the compensation shall terminate; but if there is a child or children under eighteen (18) years of age, or over eighteen (18) years of age if physically or mentally incapacitated from earning, from the time of the remarriage the child or children shall have status of orphan or orphans, and draw compensation accordingly, not, however, to exceed sixty-six and two-thirds percent (66 2/3%) of the average weekly wages of the deceased.
    5. Dependent Orphans.  If the deceased employee leaves one (1) dependent orphan, there shall be paid fifty percent (50%) of the average weekly wages of the deceased; if the deceased leaves two (2) or more dependent orphans, there shall be paid sixty-six and two-thirds percent (66 2/3%) of the average weekly wages of the deceased.
    6. Parent or Parents.  If the deceased employee leaves no surviving spouse or child entitled to any payment under this section, but should leave a parent or parents, either or both of whom are wholly dependent on the deceased, there shall be paid, if only one (1) parent, twenty-five percent (25%) of the average weekly wages of the deceased to the parent, and if both parents, thirty-five percent (35%) of the average weekly wages of the deceased to the parents.
    7. Grandparent, Brother, Sister, Mother-in-law or Father-in-law.   If the deceased leaves no surviving spouse or dependent child or parent entitled to any payment under this section, but leaves a grandparent, brother, sister, mother-in-law or father-in-law wholly dependent upon the deceased for support, there shall be paid to the dependent, if only one (1), twenty percent (20%) of the average weekly wages of the deceased, or, if more than one (1), twenty-five percent (25%) of the average weekly wages of the deceased, divided between them or among them share and share alike.
    8. Compensation to Dependents to Cease upon Death or Marriage.  If compensation is being paid under this chapter to any dependent, the compensation shall cease, upon the death or marriage of the dependent, unless otherwise provided in this section.
    9. Partial Dependents to Receive Proportion.   Partial dependents shall be entitled to receive only that proportion of the benefits provided for actual dependents that the average amount of the wages regularly contributed by the deceased to the partial dependent at the time of, and for a reasonable time immediately prior to, the injury, bore to the total income of the dependent during the same time.
    10. Maximum and Minimum Compensation.   The compensation payable in case of death to persons wholly dependent shall be subject to the maximum weekly benefit and minimum weekly benefit; provided, that if at the time of injury the employee receives wages of less than the minimum weekly benefit, the compensation shall be the full amount of the wages a week, but in no event shall the compensation payable under this provision be less than the minimum weekly benefit. The compensation payable to partial dependents shall be subject to the same maximum and minimum specified in this subdivision (e)(10); provided, that if the income loss of the partial dependents by the death is less than the minimum weekly benefit, then the dependents shall receive the full amount of the income loss. This compensation shall be paid during dependency not to exceed the maximum total benefit, payments to be paid at the intervals when the wage was payable, as nearly as may be.
    11. Orphans and Other Children.  In computing and paying compensation to orphans or other children, in all cases, only those under eighteen (18) years of age, or those over eighteen (18) years of age who are physically or mentally incapacitated from earning, shall be included, the former to receive compensation only during the time they are under eighteen (18) years of age, the latter only for the time they are so incapacitated. If the dependent is attending a recognized educational institution, benefits shall be paid until twenty-two (22) years of age.
    12. Actual Dependents.  Actual dependents shall be entitled to take compensation in the order named in subsection (c), until sixty-six and two-thirds percent (66 2/3%) of the monthly wages of the deceased during the time specified in this chapter have been exhausted, but the total compensation to be paid to all actual dependents of a deceased employee shall not exceed in the aggregate the maximum weekly benefit.
    13. Dependency Status Not Affected by Certain Assistance Payments.   Sums distributed under the Employment Security Law, compiled in chapter 7 of this title; the Old-Age Assistance Law, compiled in title 71, chapter 2, part 2; the Aid to Dependent Children Law, compiled in title 71, chapter 3, part 1; Aid to Blind Law, compiled in title 71, chapter 4, part 1; the federal Social Security Act, compiled in 42 U.S.C. § 301 et seq., or any other public assistance distributed by the United States government, the state, or any county or municipality of the state, shall not be considered income within the meaning of this law and shall not affect the status or compensation of any person entitled to benefits as provided in this chapter.

Acts 1919, ch. 123, § 30; 1923, ch. 84, § 1; Shan. Supp., § 3608a181; Acts 1927, ch. 40, § 3; Code 1932, § 6883; Acts 1941, ch. 90, § 8; 1943, ch. 110, § 1; 1947, ch. 139, § 10; 1949, ch. 277, § 7; C. Supp. 1950, § 6883; Acts 1953, ch. 111, § 6; 1955, ch. 182, §§ 9-16; 1957, ch. 270, §§ 7, 8; 1959, ch. 172, §§ 10, 11; 1963, ch. 362, § 1; 1965, ch. 158, § 1; 1967, ch. 313, §§ 1, 2; 1969, ch. 196, §§ 1, 2; 1971, ch. 134, §§ 1, 2, 4; 1972, ch. 699, § 3; 1973, ch. 379, § 9; 1974, ch. 617, §§ 6, 7; 1975, ch. 86, §§ 6, 7; 1977, ch. 354, § 6; 1979, ch. 365, § 6; 1979, ch. 370, § 1; impl. am. Acts 1980, ch. 534, § 1; Acts 1980, ch. 607, §§ 9, 10, 11; 1981, ch. 333, §§ 9, 10; 1982, ch. 880, §§ 9, 10; T.C.A. (orig. ed.), § 50-1013; Acts 1985, ch. 393, § 13.

Cross-References. Maximum compensation limits inapplicable, § 50-6-303.

Law Reviews.

Workmen's Compensation — Subsequent Accident Not a Direct and Natural Consequence of Disability, 30 Tenn. L. Rev. 322 (1963).

NOTES TO DECISIONS

1. Constitutionality.

Provision of this section prior to the 1979 amendment providing that the widow should be conclusively presumed to be dependent upon the injured spouse, but not providing the same presumption for the widower, was in violation of U.S. Const., amend. 14, and widower was to be conclusively presumed to be dependent. Davis v. Aetna Life & Casualty Co., 603 S.W.2d 718, 1980 Tenn. LEXIS 483 (Tenn. 1980).

Provision of this section prior to 1979 amendment which provided for payment of 50 percent of the average weekly wages to the widow but only 20 percent of the average weekly wages to the dependent husband of the deceased was in violation of U.S. Const., amend. 14, and husband was also entitled to 50 percent of the average weekly wage. Davis v. Aetna Life & Casualty Co., 603 S.W.2d 718, 1980 Tenn. LEXIS 483 (Tenn. 1980).

2. Purpose of Section.

One object of this section was to preserve compensation to dependent children after the marriage of their mother. Shea v. Hoffman, 168 Tenn. 628, 80 S.W.2d 87, 1934 Tenn. LEXIS 93 (1935).

3. Nature and Effect of Statute.

Compensation may be awarded only to the classes of dependents of the deceased worker described therein. Cherokee Brick Co. v. Bishop, 156 Tenn. 168, 299 S.W. 770, 1927 Tenn. LEXIS 99 (1927).

This statute is not a statute of descent or distribution. It was intended to relieve society of the burden of caring for injured workers or their dependents and to place that burden upon the industry employing the worker. Kinnard v. Tennessee Chemical Co., 157 Tenn. 206, 7 S.W.2d 807, 1927 Tenn. LEXIS 66 (1928).

Compensation under this statute does not pass by inheritance and where there is a death of one of the beneficiaries under the award the remaining beneficiaries will take of their own right under a reapportionment of the award and not by inheritance. Sands v. Brock Candy Co., 171 Tenn. 235, 101 S.W.2d 1113, 1936 Tenn. LEXIS 84 (1937).

4. —Maximum Weekly Benefit.

In the case of an employee who died with dependents in February 1993, the “maximum weekly benefit” was determined based upon the employee's average weekly wage; not until 66 2/3% of the employee's average weekly wage equals or exceeds 78% of the state's average weekly wage would that figure be used to determine the amount of compensation benefits payable to the dependents. Spencer v. Towson Moving & Storage, 922 S.W.2d 508, 1996 Tenn. LEXIS 306 (Tenn. 1996).

5. Construction.

This section and § 50-6-209 must be construed together. Haynes v. Columbia Pictures Corp., 178 Tenn. 648, 162 S.W.2d 383, 1941 Tenn. LEXIS 92 (1942).

Tennessee general assembly could not have more clearly expressed its policy determination that non-resident foreign nationals who qualify as dependents must receive the same treatment under the statute as resident United States citizens; therefore, the plain language of T.C.A. § 50-6-227 permits non-resident foreign nationals to receive death benefits as dependents under T.C.A. § 50-6-210 when they meet the statutory definitions of dependency. Fusner v. Coop Constr. Co., LLC, 211 S.W.3d 686, 2007 Tenn. LEXIS 7 (Tenn. 2007).

6. “Income” Defined.

The word “income” is a broad, comprehensive and inclusive term and is generally defined as meaning all that comes in. W. C. Sharp Drug Stores v. Hansard, 176 Tenn. 595, 144 S.W.2d 777, 1940 Tenn. LEXIS 106 (1940).

7. Total Income.

“Total income” means actual support contributed by deceased worker rather than gross sum received by dependent. Sullivan Electric Co. v. McDonald, 541 S.W.2d 112, 1976 Tenn. LEXIS 530 (Tenn. 1976).

8. Maximum and Minimum Awards.

Award for accidental death of an employee is not controlled by the limitation applicable to compensation for permanent total disability, the compensation for such death being limited only to statutory weekly maximum for not over 400 weeks. Clayton Paving Co. v. Appleton, 163 Tenn. 27, 39 S.W.2d 1037, 1930 Tenn. LEXIS 134 (1931).

Where compensation award made by the court and assented to by the parties provided that the aggregate sum received by the widow and children for death of worker was not to exceed limitation provided in § 50-6-207(4), and where six years had passed and the full amount of compensation provided for in the decree had been paid, the decree was res judicata and binding on the parties so that the widow could not have a modification thereof so as to provide for payments for the full period provided in this section where she was seeking such modification on the grounds that a case was decided by the supreme court two and one-half years after the award in question which held that the limitation as set forth in § 50-6-207 applied only in cases of permanent total disability. Shockley v. Morristown Produce & Ice Co., 171 Tenn. 591, 106 S.W.2d 562, 1937 Tenn. LEXIS 141 (1937), overruled in part, Brown v. Consolidation Coal Co., 518 S.W.2d 234, 1974 Tenn. LEXIS 433 (Tenn. 1974).

The maximum and minimum provisions of the statute apply to cases where the entire benefits allowed actual dependents equal the maximum or fall below the minimum and do not apply exclusively to the widow. Diamond Coal Mining Co. v. Curnutt, 179 Tenn. 278, 165 S.W.2d 575, 1942 Tenn. LEXIS 21 (1942).

The maximum amount of workers' compensation benefits properly payable to a widower with no dependent children, for the death of his wife, the employee, is determined by subdivision (e)(1) of T.C.A. § 50-6-210 and not subdivision (e)(12) of that section. Schultz v. Majik Market, Div. of Mumford, Inc., 621 S.W.2d 738, 1981 Tenn. LEXIS 489 (Tenn. 1981).

Subdivision (e)(12) of T.C.A. § 50-6-210 provides the maximum compensation to be paid to plural actual dependents when such plural dependents survive the deceased employee. Schultz v. Majik Market, Div. of Mumford, Inc., 621 S.W.2d 738, 1981 Tenn. LEXIS 489 (Tenn. 1981).

9. Basis and Determination of Recovery.

Relationship is the absolute test of the right to compensation embraced in subdivision (a)(1) of T.C.A. § 50-6-210 (see now subsection (a)) and the prima facie test under subdivision (a)(2) (see now subsection (b)), but dependency is the real test of the right to compensation as to children embraced in subsection (c). Portin v. Portin, 149 Tenn. 530, 261 S.W. 362, 1923 Tenn. LEXIS 111 (1924); Summers v. Tennessee Eastman Corp., 169 Tenn. 335, 87 S.W.2d 1005, 1935 Tenn. LEXIS 50 (1935).

Relationship is only evidence of dependency. Kinnard v. Tennessee Chemical Co., 157 Tenn. 206, 7 S.W.2d 807, 1927 Tenn. LEXIS 66 (1928). See also Cambria Coal Co. v. Daugherty, 161 Tenn. 457, 33 S.W.2d 71, 1930 Tenn. LEXIS 29 (1930).

Relationship was only evidence of and not the real test of dependency as to child placed on custody of employee by court and as to mother-in-law of employee, and actual dependency was the test. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

The right to compensation of each dependent depends on own legal status and not on the strength or weakness of the other dependent. Summers v. Tennessee Eastman Corp., 169 Tenn. 335, 87 S.W.2d 1005, 1935 Tenn. LEXIS 50 (1935).

In suit for recovery of compensation by parents of deceased employee, actual dependency for support was the test of dependency and the relationship was only evidence of such dependency. Sweeton v. Tennessee Consol. Coal Co., 179 Tenn. 216, 164 S.W.2d 1010, 1941 Tenn. LEXIS 106 (1942).

While dependency is to be tested as of the time of the accident, it is proper to consider in determining the actual dependency of parents of employee how they have been supported prior to that date, and what means of income they have found sufficient for a reasonable support. Sweeton v. Tennessee Consol. Coal Co., 179 Tenn. 216, 164 S.W.2d 1010, 1941 Tenn. LEXIS 106 (1942).

Contributing to the family a substantial percentage of the total income by son not conclusive of dependency of family. Sweeton v. Tennessee Consol. Coal Co., 179 Tenn. 216, 164 S.W.2d 1010, 1941 Tenn. LEXIS 106 (1942).

The rule of conclusive dependency of a wife on a husband and of children under 16 years of age upon a father does not apply to a son or a brother. Sweeton v. Tennessee Consol. Coal Co., 179 Tenn. 216, 164 S.W.2d 1010, 1941 Tenn. LEXIS 106 (1942).

Where children of employee were placed in home of employee's sister in early infancy and employee never contributed to their support thereafter, and at the time of his death one daughter was 16 and the other was 19 but physically incapacitated from labor, finding of trial court that the prima facie presumption of dependency was overcome by proof was proper. O'Shell v. Cambria Coal Co., 187 Tenn. 611, 216 S.W.2d 331, 1948 Tenn. LEXIS 474 (1948).

Dependency means reliance for support on earnings of employee at the time of his injury or death. O'Shell v. Cambria Coal Co., 187 Tenn. 611, 216 S.W.2d 331, 1948 Tenn. LEXIS 474 (1948).

Proof of actual dependency does not necessarily require a showing that claimant relied on the worker for the bare necessities of life and without his contribution would have been reduced to destitution but it is sufficient to show that worker's contributions were looked to for claimant's accustomed standard of living. Wamser, Stewart & Vaughn, Inc. v. Teasley, 205 Tenn. 78, 325 S.W.2d 540, 1959 Tenn. LEXIS 342 (1959).

A claimant may be a dependent even though receiving other income from claimant's own work, from property or from other persons on whom claimant is also dependent. Wamser, Stewart & Vaughn, Inc. v. Teasley, 205 Tenn. 78, 325 S.W.2d 540, 1959 Tenn. LEXIS 342 (1959).

10. Time for Determining Dependency.

Dependency entitling parties to compensation is to be determined as of the time of the accident, unaffected by subsequent conditions. Johnson Coffee Co. v. McDonald, 143 Tenn. 505, 226 S.W. 215, 1920 Tenn. LEXIS 37 (1920); W. C. Sharp Drug Stores v. Hansard, 176 Tenn. 595, 144 S.W.2d 777, 1940 Tenn. LEXIS 106 (1940); Sweeton v. Tennessee Consol. Coal Co., 179 Tenn. 216, 164 S.W.2d 1010, 1941 Tenn. LEXIS 106 (1942).

Dependency is determined at the time of injury or death of the employee and not at any time thereafter and the courts will not consider subsequent events as affecting the rights of dependents to compensation provided they were dependents within the meaning of the statute at the time of the injury or death. Royal Indem. Co. v. Jackson, 201 Tenn. 500, 300 S.W.2d 893, 1957 Tenn. LEXIS 328 (1957); Parker v. Turpin, 211 Tenn. 13, 362 S.W.2d 246, 1962 Tenn. LEXIS 333 (1962).

11. Fixing Allowance for Dependents.

Dependents of more than one class may, in order named in the statute, take compensation up to the point that maximum percentage provided by the statute of the monthly wages of the deceased employee for the statutory period has been exhausted, provided those of the first class are not entitled to the entire amount. Marcum v. Hickle, 144 Tenn. 460, 234 S.W. 321, 1921 Tenn. LEXIS 45 (1921), superseded by statute as stated in, Schultz v. Majik Market, Div. of Mumford, Inc., 621 S.W.2d 738, 1981 Tenn. LEXIS 489 (Tenn. 1981).

Both dependents, father and sister, could recover up to limit and in proportion fixed by the statute. Bohlen-Huse Coal & Ice Co. v. McDaniel, 148 Tenn. 628, 257 S.W. 848, 1923 Tenn. LEXIS 48 (1924).

In fixing allowance for dependents of a deceased employee, all the dependents of the employee must be considered together, separate suits therefor not being contemplated by the statute. Berry v. Kroger Grocery & Baking Co., 169 Tenn. 519, 89 S.W.2d 344, 1935 Tenn. LEXIS 78 (1936).

The mother comes before the sister in the payment of compensation as fixed by this section. Diamond Coal Mining Co. v. Curnutt, 179 Tenn. 278, 165 S.W.2d 575, 1942 Tenn. LEXIS 21 (1942).

Subdivision (e)(12) of T.C.A. § 50-6-210 has no application to the case where the deceased employee leaves only a single dependent, her widower. Schultz v. Majik Market, Div. of Mumford, Inc., 621 S.W.2d 738, 1981 Tenn. LEXIS 489 (Tenn. 1981).

12. —Death of One Dependent Within a Class.

This statute permits a redistribution of the benefits awarded under it as necessity demands, as the general assembly did not intend that the death of one compensable dependent within the class of dependents at the death of the employee should benefit the employer rather than the surviving dependents within the class. Sands v. Brock Candy Co., 171 Tenn. 235, 101 S.W.2d 1113, 1936 Tenn. LEXIS 84 (1937).

13. —Partial Dependents.

One who receives an income from some other source, in addition to that received from the employee covered by the statute, is only a partial dependent of such employee. W. C. Sharp Drug Stores v. Hansard, 176 Tenn. 595, 144 S.W.2d 777, 1940 Tenn. LEXIS 106 (1940).

Where trial judge fixed contribution of deceased to partial dependents at $15 per week, such minimum award was not subject to division or apportionment. Parker v. Turpin, 211 Tenn. 13, 362 S.W.2d 246, 1962 Tenn. LEXIS 333 (1962).

Maximum total compensation for partial dependents would not be reduced by formula based on percentage of dependency and order of preference as related to total dollar amount of compensation provided by the statute. Baine v. Queen Ins. Co., 217 Tenn. 143, 395 S.W.2d 805, 1965 Tenn. LEXIS 527 (1965).

Evidence was sufficient to support the finding that each of the minor plaintiffs was a partial dependent of the deceased employee. Person v. Safeco Ins. Co., 637 S.W.2d 461, 1982 Tenn. LEXIS 335 (Tenn. 1982).

Where a deceased employee's parents were, as a matter of law, “partial dependents” under T.C.A. § 50-6-210(d), the case was remanded for the trial court to determine the appropriate proration factor by, inter alia, finding: (1) The parents'  total household income for a relevant measuring period; (2) The father's contribution to the household's income at the time of the employee's death and for a reasonable period of time immediately prior to the son's death; and (3) The employee's contribution to the household's income at the time of his death and for a reasonable period of time immediately prior to his death. Fusner v. Coop Constr. Co., LLC, 211 S.W.3d 686, 2007 Tenn. LEXIS 7 (Tenn. 2007).

Non-resident foreign nationals could qualify as dependents under T.C.A. § 50-6-210 and receive benefits due upon an employee's death but the trial court erred in finding that the deceased employee's parents were actual dependents because the father earned some income of his own at the time of the employee son's death, and thus as a matter of law the parents were partial dependents under § 50-6-210(d). Fusner v. Coop Constr. Co., LLC, 211 S.W.3d 686, 2007 Tenn. LEXIS 7 (Tenn. 2007).

14. — —Record Not Showing Amount of Support.

Where the record did not show the amount of support or income the two younger sisters of deceased received from him, the court could not compute the compensation coming to them under this section. W. C. Sharp Drug Stores v. Hansard, 176 Tenn. 595, 144 S.W.2d 777, 1940 Tenn. LEXIS 106 (1940).

15. —Settlement by Deceased Employee — Effect on Rights of Dependents.

The dependents of an injured employee have the right to recover compensation for death resulting from his injury in the course of his employment, notwithstanding the injured employee made settlement with his employer and the insurance carrier for the injury, since the right of the employee and the rights of his dependents are separate and independent of each other, but compensation payments made to the employee are deductible, § 50-6-207. Hotel Claridge Co. v. Blank, 169 Tenn. 575, 89 S.W.2d 758, 1935 Tenn. LEXIS 85 (1936).

16. Wife — Application and Scope of Term.

Compensation should be granted to one who married employee under license regularly issued and who lived with him as his wife until his death 13 years later under the belief that she was his lawful wife, despite fact that he was not divorced from a prior wife. Kinnard v. Tennessee Chemical Co., 157 Tenn. 206, 7 S.W.2d 807, 1927 Tenn. LEXIS 66 (1928); but see Memphis Fertilizer Co. v. Small, 160 Tenn. 235, 22 S.W.2d 1037, 1929 Tenn. LEXIS 98 (1930).

The provision is for lawful wives, and a woman living with a deceased worker out of wedlock cannot recover, though she had been supported by him. Memphis Fertilizer Co. v. Small, 160 Tenn. 235, 22 S.W.2d 1037, 1929 Tenn. LEXIS 98 (1930); but see Kinnard v. Tennessee Chemical Co., 157 Tenn. 206, 7 S.W.2d 807, 1927 Tenn. LEXIS 66 (1928).

Where a man has children by his lawful wife, but the latter and the children were living with another man and the man, at the time of his death, was living with another woman by whom he had a child, all of the children should be treated as dependent orphans, notwithstanding remarriage of the widow. Pruden Coal & Coke Co. v. Johnson, 167 Tenn. 358, 53 S.W.2d 384, 1932 Tenn. LEXIS 20 (1932).

Where, at the time of deceased employee's second marriage, his first wife had only a decree of divorce from bed and board, but subsequently obtained an absolute divorce, the second wife who married the husband in good faith without knowledge that he was a married man, and cohabited with him for several years as his wife, and was actually dependent on him for support, is entitled to compensation as his dependent wife and widow. Summers v. Tennessee Eastman Corp., 169 Tenn. 335, 87 S.W.2d 1005, 1935 Tenn. LEXIS 50 (1935).

Denial of death benefits to deceased's putative “wife,” who had lived with and been supported by decedent for 25 years, was not improper where both plaintiff and decedent had known that they were not legally married, both had known how to become legally married and to obtain a legal divorce, but after they began living together, both consciously chose not to divorce their spouses and marry one another. Jones v. D. Canale & Co., 652 S.W.2d 336, 1983 Tenn. LEXIS 675 (Tenn. 1983).

17. —Adulterous Relationship as Affecting Dependency.

While dependency is the proper basis upon which to determine the right to recover compensation, the relationship between the wife and her husband must not be knowingly adulterous. In other words, if they live together with full knowledge of the fact that their relationship is meretricious, the dependency results from an unlawful association and death is not compensable. Perry v. Sun Coal Co., 183 Tenn. 141, 191 S.W.2d 181, 1945 Tenn. LEXIS 284 (1945).

18. Validity of Marriage for Purpose of Statute.

Where woman married deceased employee believing he was legally divorced but who in fact was only divorced from bed and board and was entirely supported by deceased employee, she was entitled to share award with dependent child of deceased employee and first wife. Summers v. Tennessee Eastman Corp., 169 Tenn. 335, 87 S.W.2d 1005, 1935 Tenn. LEXIS 50 (1935).

Where employee married second wife without securing divorce from first wife and married a girl living in his home upon death of second wife, the third wife who had no knowledge of invalid second marriage was entitled to compensation where employee secured divorce from first wife after his third marriage, and remarriage after divorce was obtained was not necessary. Perry v. Sun Coal Co., 183 Tenn. 141, 191 S.W.2d 181, 1945 Tenn. LEXIS 284 (1945).

Evidence established lack of good faith of claimant in living with deceased employee as his wife, in view of fact she separated deceased from his lawful wife and knew that he was still married, justifying denial of compensation to claimant. Floyd v. Indemnity Ins. Co., 184 Tenn. 381, 199 S.W.2d 106, 1947 Tenn. LEXIS 390 (1947).

Validity of petitioner's marriage to deceased was upheld where they contracted their marriage more than five years after the disappearance of petitioner's first husband, and petitioner was allowed to recover compensation. Moody v. T. H. Hays & Sons, 189 Tenn. 666, 227 S.W.2d 20, 1950 Tenn. LEXIS 406 (1950).

19. —Right to Question Validity.

In proceedings for compensation to the father of the deceased employee, the employer cannot deny the existence of valid marriage between claimant and the decedent's mother, where they had lived together as man and wife for 25 years and reared several children, and the mother was treated, and referred to in the record by both parties, as claimant's wife, for such question is purely incidental. Bohlen-Huse Coal & Ice Co. v. McDaniel, 148 Tenn. 628, 257 S.W. 848, 1923 Tenn. LEXIS 48 (1924).

20. Establishing Fact of Marriage.

Reputation may establish fact of marriage. Bohlen-Huse Coal & Ice Co. v. McDaniel, 148 Tenn. 628, 257 S.W. 848, 1923 Tenn. LEXIS 48 (1924); Kinnard v. Tennessee Chemical Co., 157 Tenn. 206, 7 S.W.2d 807, 1927 Tenn. LEXIS 66 (1928).

21. —Presumption of Marriage.

There is a presumption in favor of a father, suing for death of his son, that the former lived with the son's mother under a valid marriage relationship, so as to make the son legitimate, after lapse of many years. Bohlen-Huse Coal & Ice Co. v. McDaniel, 148 Tenn. 628, 257 S.W. 848, 1923 Tenn. LEXIS 48 (1924).

After lapse of many years parents of one suing for death of brother are presumed to have been validly married. Bohlen-Huse Coal & Ice Co. v. McDaniel, 148 Tenn. 628, 257 S.W. 848, 1923 Tenn. LEXIS 48 (1924).

There is a presumption in favor of petitioner of a valid marriage to injured employee after a lapse of many years. Kinnard v. Tennessee Chemical Co., 157 Tenn. 206, 7 S.W.2d 807, 1927 Tenn. LEXIS 66 (1928).

22. Rights of Wife — Effect of Statute.

A widow, claiming the benefits of the compensation statute, is bound by all the terms which the law wrote into her husband's contract of employment. Battle Creek Coal & Coke Co. v. Martin, 155 Tenn. 34, 290 S.W. 18, 1926 Tenn. LEXIS 16 (1927).

Suit by widow under statute for compensation for death of her husband is a suit upon the contract of employment between her husband and the employer, all the terms of the statute being written by law into that contract. Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221, 1931 Tenn. LEXIS 131 (1931), rehearing denied, 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931).

23. Wife Voluntarily Living Apart.

The declaration in this section that all wives are conclusively presumed dependent except those voluntarily living apart from their husbands was intended to include wives whose husbands abandoned them without cause, which husbands were under legal and moral duty to support, and to exclude only wives who intentionally and uninfluenced by extraneous causes, were deliberately living apart from their husbands at the time of the accident. Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, 295 S.W. 68, 1926 Tenn. LEXIS 64 (1927).

Wife, whose husband left home in anger and did not return before his death, but who remained home expecting him to return and willing for him to do so, and who could have enforced the wife's claim to support held conclusively a dependent. Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, 295 S.W. 68, 1926 Tenn. LEXIS 64 (1927).

Status of “widow” cannot be acquired by a wife who voluntarily lives apart from the employee at the time of his death. Pruden Coal & Coke Co. v. Johnson, 167 Tenn. 358, 53 S.W.2d 384, 1932 Tenn. LEXIS 20 (1932).

Where the deceased employee and his wife separated several years before his death and the wife knowingly entered into a bigamous marriage with another man, was supported by such third person until the time of the death of the husband and was still living with the third person at the time of the suit for compensation, and had at no time made any effort to return to her husband during his lifetime, such wife was “voluntarily living apart from her husband at the time of his injury” within the meaning of this section and was not entitled to compensation as a dependent of such worker. Wright v. Armstrong, 179 Tenn. 134, 163 S.W.2d 78, 1941 Tenn. LEXIS 102 (1942).

Claimant was not voluntarily living apart from her husband where she took an apartment after their eviction from home. Moody v. T. H. Hays & Sons, 189 Tenn. 666, 227 S.W.2d 20, 1950 Tenn. LEXIS 406 (1950).

Wife who is living apart from husband, not voluntarily, but due to force of economic circumstances, is conclusively presumed to be wholly dependent upon him and entitled to compensation. Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940, 1964 Tenn. LEXIS 454 (1964).

Where evidence was to the effect that separation of husband and wife was result of husband's association with another woman and that wife's refusal to rejoin him was because of his refusal to move from neighborhood where such woman was, although wife had indicated that she would consider rejoining him if he moved to another neighborhood, such evidence sustained finding of chancellor to the effect that wife was not voluntarily living apart from husband and that such separation resulted from conduct of husband sufficient to justify her withdrawal. Cole v. Bemis Bros. Bag Co., 215 Tenn. 259, 385 S.W.2d 103, 1964 Tenn. LEXIS 562 (1964).

Where at time of husband's death, husband and wife had been separated and living apart for over 20 years, husband had not supported wife and wife did not ask for or expect support, no discussion of reconciliation occurred even though husband and wife occasionally saw each other and both husband and wife apparently lived with others, wife was voluntarily living apart from husband and not entitled to benefits as a dependent widow. Farrow v. Hopkins, 224 Tenn. 275, 453 S.W.2d 785, 1970 Tenn. LEXIS 324 (1970).

Where evidence showed that plaintiff was married to decedent, living apart from him, perhaps having an extra-marital affair, but where she testified that the separation was involuntary on her part, there was ample evidence to support the chancellor's finding that she had not been voluntarily living apart from her husband when he was alive. Huey Bros. Lumber Co. v. Anderson, 519 S.W.2d 588, 1975 Tenn. LEXIS 709 (Tenn. 1975).

Separation caused by physical danger to a wife is not voluntary on her part. Cole v. Bemis Bros. Bag Co., 215 Tenn. 259, 385 S.W.2d 103, 1964 Tenn. LEXIS 562 (1964); Stack v. Sawmill, 724 S.W.2d 735, 1987 Tenn. LEXIS 824 (Tenn. 1987).

Wives separated from their husbands by economic necessity are not voluntarily separated within the meaning of T.C.A. § 50-6-210. Stack v. Sawmill, 724 S.W.2d 735, 1987 Tenn. LEXIS 824 (Tenn. 1987).

24. —Divorced Wife.

A wife who obtains a decree of divorce from bed and board for desertion and failure to support, though receiving alimony, may recover compensation where her living apart is shown not to be voluntary and she is dependent, and there is evidence that the divorce decree has been disregarded by the couple. Cambria Coal Co. v. Daugherty, 161 Tenn. 457, 33 S.W.2d 71, 1930 Tenn. LEXIS 29 (1930).

25. Death of Widow — Effect.

Where it has been adjudicated that a widow and dependent children are beneficiaries of the wages of the deceased employee, and entitled to be compensated for his death, a redistribution of the award, upon the death of the widow, cannot be regarded as permitting the benefit awarded the widow to survive to the other dependents, but the children take in their own right, as dependents, and not by inheritance. Sands v. Brock Candy Co., 171 Tenn. 235, 101 S.W.2d 1113, 1936 Tenn. LEXIS 84 (1937).

Where widow and two dependent grandchildren of worker were awarded compensation at the time of the death of the worker and where widow subsequently died, the grandchildren were then entitled to a reapportionment of the award so that they would be entitled to the maximum award as orphans of the worker. Sands v. Brock Candy Co., 171 Tenn. 235, 101 S.W.2d 1113, 1936 Tenn. LEXIS 84 (1937).

26. Remarriage of Widow.

A dependent widow who has remarried subsequent to the award of compensation for the death of her husband, cannot rest her claim for reinstatement, after her remarriage, on the ground that the subsequent remarriage was void. Oliver v. Perkins Oil Co., 168 Tenn. 278, 77 S.W.2d 454, 1934 Tenn. LEXIS 52 (1935).

Provision of this section that remarriage of widow terminated right of compensation by widow did not apply to the subsequent marriage of unmarried female employee who was awarded compensation. Butterbaugh v. Loew's, Inc., 168 Tenn. 284, 77 S.W.2d 644, 1934 Tenn. LEXIS 54, 96 A.L.R. 973 (1935).

Where widow remarried, but such second marriage was subsequently annulled, a release executed by the widow upon her remarriage was not binding after the decree of annulment. Southern R. Co. v. Baskette, 175 Tenn. 253, 133 S.W.2d 498, 1939 Tenn. LEXIS 37 (1939).

Death benefits payable under T.C.A. § 50-6-210 cease upon remarriage of the surviving spouse, the objective being to provide benefits to a surviving spouse only during the period of dependency. Jones v. General Accident Ins. Co., 856 S.W.2d 133, 1993 Tenn. LEXIS 195 (Tenn. 1993).

27. —Rights of Children Upon Remarriage of Widow.

Upon remarriage of widow of deceased employee, the amount of the award to widow and children passes to the children entitled, and not the amount that would have been awarded had there been no widow. Tennessee Copper Co. v. Shelton, 163 Tenn. 202, 42 S.W.2d 346, 1931 Tenn. LEXIS 99 (1931).

28. Widow and Children — Rights Generally.

Since under this section a widow of an employee had right to claim compensation for both a minor child and herself, it was her duty to give notice required by §§ 50-6-201 and 50-6-202, and failure to do so or give reasonable excuse barred recovery, though the child was only five years old and without a regular guardian. Patten Hotel Co. v. Milner, 145 Tenn. 632, 238 S.W. 75, 1921 Tenn. LEXIS 101 (1921).

Action by widow for herself and dependent children for compensation for accidental death of her husband is incidental to the latter's contract of employment and is prosecuted in their own names and right. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

Where an award of compensation for the death of a worker made to widow and three children was the amount allowed by statute for widow and two or more children, a modification of such award upon the marriage of one child and the attaining of 18 years of age by another so as to allow the widow and remaining child the same total amount was error, as the widow and remaining child were only entitled to the amount allowed under the statute for widow and one child, and the contention that the total amount of the award could not be reduced once it had been awarded was without merit. Whitwell Coal Corp. v. Cornett, 175 Tenn. 433, 135 S.W.2d 456, 1939 Tenn. LEXIS 57 (1940).

29. Wife and Children.

The separate listing of “wife” and “children” is not to establish priority between them but to establish the priority of each over the potential beneficiaries listed subsequently. Farmer v. Farmer, 562 S.W.2d 205, 1978 Tenn. LEXIS 586 (Tenn. 1978).

30. Children.

Under the statute, actual dependency of the children rather than the legal relationship governs. Atkins v. Employers Mut. Ins. Co., 208 Tenn. 539, 347 S.W.2d 49, 1961 Tenn. LEXIS 317 (1961).

31. —Children as Dependents of Father.

Children whose custody was given to their mother in divorce decree which gave her alimony but did not provide for their support held “dependents” of their father within this statute where they left their mother upon her remarriage and lived thereafter with their father who supported them until he was killed. McClain v. Kingsport Improv. Corp., 147 Tenn. 130, 245 S.W. 837, 1922 Tenn. LEXIS 26 (1922).

The provision of the statute creating a conclusive presumption that children under 16 years of age are wholly dependent on the father means that compensation shall be paid to such children whether the father does or does not as a matter of fact support them, but if such children are in fact dependent on someone else such dependency can be established, and in proper circumstances such children may receive compensation as dependents of such other person. Royal Indem. Co. v. Jackson, 201 Tenn. 500, 300 S.W.2d 893, 1957 Tenn. LEXIS 328 (1957).

32. —Children as Dependents of Mother.

The provision creating a conclusive presumption that children under 16 are wholly dependent on the father means that compensation shall be paid to such children for the death of the father, whether they are as a matter of fact dependent upon him or not, but does not exclude proof in proceedings to recover compensation for the death of the mother that the children were in fact dependent upon her earnings, though the father was still living. Johnson Coffee Co. v. McDonald, 143 Tenn. 505, 226 S.W. 215, 1920 Tenn. LEXIS 37 (1920).

Dependency as a matter of fact may exist on the part of a husband or children upon the wife and mother, so that the court may find the children to be actually dependent upon the mother, though their divorced father is still living and had not been relieved of his obligation to support them, and had, after the mother's death, secured employment as a means of supporting them. Johnson Coffee Co. v. McDonald, 143 Tenn. 505, 226 S.W. 215, 1920 Tenn. LEXIS 37 (1920).

33. —Children under Sixteen.

Children under 16 years of age are conclusively presumed to have been wholly dependent on a deceased father. McClain v. Kingsport Improv. Corp., 147 Tenn. 130, 245 S.W. 837, 1922 Tenn. LEXIS 26 (1922).

Where the deceased father left three orphans under 16 years old, the employer was liable for the maximum compensation, the fact that a fourth son, between 16 and 18, who earned his living and helped support the family was excluded from compensation not affecting the amount. McClain v. Kingsport Improv. Corp., 147 Tenn. 130, 245 S.W. 837, 1922 Tenn. LEXIS 26 (1922).

Son of an employee, who, at time of father's death, lacked a few weeks of being 16 years of age is conclusively presumed to be dependent and entitled to the statutory allowance though he was earning wages at time of his father's death. Lenoir Car Works v. Hill, 163 Tenn. 578, 44 S.W.2d 321, 1931 Tenn. LEXIS 151 (1931).

Deceased's mother was not entitled to recover as a partial dependent, because deceased left a minor child under 16 years of age surviving him. Superior Motors, Inc. v. Morris, 489 S.W.2d 253, 1973 Tenn. LEXIS 528 (Tenn. 1973).

34. —Children over Sixteen.

A son, between 16 and 18 years of age, who earned his own living and helped support the family, was not a dependent entitled to share in compensation for his father's death. McClain v. Kingsport Improv. Corp., 147 Tenn. 130, 245 S.W. 837, 1922 Tenn. LEXIS 26 (1922).

Where the deceased employee's two daughters, one 16 years old, and the other 19, but physically unable to support herself, had lived in the home of and been wholly supported by their uncle and aunt since infancy, the prima facie presumption of dependency of these daughters upon their father at the time of his death was entirely overcome, and the employee's widow was entitled to compensation to the total exclusion of the daughters. O'Shell v. Cambria Coal Co., 187 Tenn. 611, 216 S.W.2d 331, 1948 Tenn. LEXIS 474 (1948).

35. —Child's Dependency after Becoming Sixteen — Time Determined.

Whether a 14 year old child of a deceased employee was so physically incapacitated that he would continue to be a dependent after reaching the age of 16 held to be a question properly for the determination of the court when that time should arrive. Pruden Coal & Coke Co. v. Johnson, 167 Tenn. 358, 53 S.W.2d 384, 1932 Tenn. LEXIS 20 (1932).

36. —Posthumous Children.

Posthumous child is within the benefits of the statute. But a posthumous illegitimate child is without the benefits of statute. Sanders v. Fork Ridge Coal & Coke Co., 156 Tenn. 145, 299 S.W. 795, 1927 Tenn. LEXIS 96 (1927).

Since legitimate children under the age of 16 are conclusively presumed to be dependents of the worker, order of the trial court that a posthumous child of a deceased worker was to be included in award for death of such worker if such child was born alive was proper. Travelers Ins. Co. v. Dudley, 180 Tenn. 191, 173 S.W.2d 142 (1943).

37. —Stepchildren and Adopted Children.

A stepchild, a member of employee's family and actually dependent on him, is deemed a dependent child, and the same is true of an adopted child. Cherokee Brick Co. v. Bishop, 156 Tenn. 168, 299 S.W. 770, 1927 Tenn. LEXIS 99 (1927).

A stepchild who is a member of deceased employee's family and was dependent upon the employee for support, is a dependent and is entitled to share benefits equally with the employee's natural children. Williams v. Travelers Ins. Co., 530 S.W.2d 283, 1975 Tenn. LEXIS 563 (Tenn. 1975).

38. —Illegitimate Children.

An illegitimate daughter may inherit from a deceased son of her mother, and hence may recover compensation for his death, if dependent on him. Bohlen-Huse Coal & Ice Co. v. McDaniel, 148 Tenn. 628, 257 S.W. 848, 1923 Tenn. LEXIS 48 (1924).

An illegitimate child two years old may be compensated as dependent orphan where his father has been killed after his mother deserted the father and child. Portin v. Portin, 149 Tenn. 530, 261 S.W. 362, 1923 Tenn. LEXIS 111 (1924).

For an illegitimate child to enjoy the benefits of the compensation statute, he must have come into being and have been actually supported by his father, and a posthumous illegitimate child is without the provisions of the statute. Sanders v. Fork Ridge Coal & Coke Co., 156 Tenn. 145, 299 S.W. 795, 1927 Tenn. LEXIS 96 (1927).

Where illegitimate child of employee's daughter was dependent of employee at time of employee's death and provisions for payments for benefit of such child were included in agreed settlement, status of such child as dependent of employee was unaffected by subsequent marriage of parents of child and by child's legitimation by such marriage. Royal Indem. Co. v. Jackson, 201 Tenn. 500, 300 S.W.2d 893, 1957 Tenn. LEXIS 328 (1957).

Conclusive presumption of dependency of children under 16 years of age applies to illegitimate children if such children are able to establish paternity of worker. Terry v. Burlington Industries, Inc., 220 Tenn. 668, 423 S.W.2d 476, 1968 Tenn. LEXIS 533 (1968).

The conclusive presumption that a minor child of the deceased employee under 16 years of age was wholly dependent on the deceased for support applies to illegitimate children upon proof of employee's paternity. Williams v. Travelers Ins. Co., 530 S.W.2d 283, 1975 Tenn. LEXIS 563 (Tenn. 1975).

39. —Grandchildren.

Wholly dependent grandchildren are to be compensated. Cherokee Brick Co. v. Bishop, 156 Tenn. 168, 299 S.W. 770, 1927 Tenn. LEXIS 99 (1927).

Grandchildren of a deceased employee coming within the class of actual dependents are entitled to the full proceeds provided for them under the statute, for the time during which they may draw compensation. Sands v. Brock Candy Co., 171 Tenn. 235, 101 S.W.2d 1113, 1936 Tenn. LEXIS 84 (1937).

Where, on the death of an employee, he left as his dependents his widow and two grandchildren who lived in his family, and compensation was allowed them as dependents of the decedent, and subsequently the widow died, the grandchildren are entitled to reapportionment, although the grandchildren's father was alive, but was not supporting them. Sands v. Brock Candy Co., 171 Tenn. 235, 101 S.W.2d 1113, 1936 Tenn. LEXIS 84 (1937).

Deceased worker's dependent grandchildren were orphans within the meaning of the statute upon the death of worker's widow, even though they had a living father. Sands v. Brock Candy Co., 171 Tenn. 235, 101 S.W.2d 1113, 1936 Tenn. LEXIS 84 (1937).

40. —Child of Relative Reared in Family.

A nephew of the employee's wife, nine years of age, who had been taken by the employee and his wife when an infant three weeks old, upon the death of his mother, and who had lived with them continuously as a member of the family, was entitled to compensation for employee's death as a “dependent.” Southern Motor Car Co. v. Patterson, 168 Tenn. 252, 77 S.W.2d 446, 1934 Tenn. LEXIS 47 (1935).

41. —Unrelated Children.

Baby, unrelated to couple, who was taken into their home six years before the accidental death of the man and reared as a member of their family, being wholly dependent upon the man for support, was entitled to compensation. Kinnard v. Tennessee Chemical Co., 157 Tenn. 206, 7 S.W.2d 807, 1927 Tenn. LEXIS 66 (1928).

A child in care of and dependent on a deceased worker is to be compensated, though not related to him. Memphis Fertilizer Co. v. Small, 160 Tenn. 235, 22 S.W.2d 1037, 1929 Tenn. LEXIS 98 (1930).

In awarding compensation to an unrelated child as a dependent, the relationship of the parties is not the test, but the actual dependency of the child governs. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

A four-year-old child taken from the custody of its parents, and placed in the custody of decedent and his wife, and supported by them until decedent's death, was a dependent of decedent and his wife, and was entitled to participate in a compensation award. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

Unrelated children are entitled to compensation if actually dependent. Atkins v. Employers Mut. Ins. Co., 208 Tenn. 539, 347 S.W.2d 49, 1961 Tenn. LEXIS 317 (1961).

Meretricious relationship between mother and worker could not affect right of children of the mother to death benefits where children were actually dependent upon worker though unrelated to him. Atkins v. Employers Mut. Ins. Co., 208 Tenn. 539, 347 S.W.2d 49, 1961 Tenn. LEXIS 317 (1961).

Children of paramour of worker were entitled to death benefits where actually dependent even though father of children was ordered in divorce proceedings to provide them support and they had actually received some support from the father. Atkins v. Employers Mut. Ins. Co., 208 Tenn. 539, 347 S.W.2d 49, 1961 Tenn. LEXIS 317 (1961).

42. —Marriage of Dependent Child.

A child who is under 18 and marries is excluded. The entire amount of the original award goes in such case to the other child or children. Finley v. Keisling Lumber Co., 162 Tenn. 184, 35 S.W.2d 388, 1930 Tenn. LEXIS 77 (1931).

Marriage of daughter of deceased employee prior to the time that she attained the age of 16 terminated her right to compensation. Shea v. Hoffman, 168 Tenn. 628, 80 S.W.2d 87, 1934 Tenn. LEXIS 93 (1935).

43. Orphans.

A child is properly described as a dependent orphan without having lost by death more than one of his parents. Portin v. Portin, 149 Tenn. 530, 261 S.W. 362, 1923 Tenn. LEXIS 111 (1924); Wright v. Armstrong, 179 Tenn. 134, 163 S.W.2d 78, 1941 Tenn. LEXIS 102 (1942).

The word “orphan” is not used in a strict legal sense. All dependent children within the classes of dependents defined by statute are included. Cherokee Brick Co. v. Bishop, 156 Tenn. 168, 299 S.W. 770, 1927 Tenn. LEXIS 99 (1927); Sands v. Brock Candy Co., 171 Tenn. 235, 101 S.W.2d 1113, 1936 Tenn. LEXIS 84 (1937).

Where employee is living with another woman by whom he had a child, and his wife and two children are living with another man, all three children are treated as dependent orphans even though the wife remarried. Pruden Coal & Coke Co. v. Johnson, 167 Tenn. 358, 53 S.W.2d 384, 1932 Tenn. LEXIS 20 (1932).

Dependent grandchildren may be treated as “orphans,” as the word is used in this section, under the rule that the word “orphans” has reference to all dependent children who come within the class defined by the statute. Sands v. Brock Candy Co., 171 Tenn. 235, 101 S.W.2d 1113, 1936 Tenn. LEXIS 84 (1937).

Where mother of deceased's child was living, but married to another, the child was an orphan and entitled to recover all compensation benefits. Superior Motors, Inc. v. Morris, 489 S.W.2d 253, 1973 Tenn. LEXIS 528 (Tenn. 1973).

44. Dependency of Husband on Wife.

A husband, who at the time of the injury and death of employee wife, was making an average weekly wage of $32.19, was not dependent on her. Franklin v. Stone & Webster Engineering Corp., 183 Tenn. 155, 191 S.W.2d 431, 1946 Tenn. LEXIS 195 (1946).

45. Parents.

Decree for father and stepmother of deceased employee held harmless, though the stepmother was not a dependent under this section, where the father, if suing alone, would have had a right to the full amount of the award. Milne v. Sanders, 143 Tenn. 602, 228 S.W. 702, 1920 Tenn. LEXIS 48 (1921).

The question of the dependency of a father and mother is one of fact, and a finding of dependency will not be disturbed if there is any evidence to support it. Tennessee Chemical Co. v. Smith, 145 Tenn. 532, 238 S.W. 97, 1921 Tenn. LEXIS 93 (1922); Phillips & Buttorff Mfg. Co. v. Jordan, 190 Tenn. 74, 227 S.W.2d 776, 1950 Tenn. LEXIS 420 (1950); Wamser, Stewart & Vaughn, Inc. v. Teasley, 205 Tenn. 78, 325 S.W.2d 540, 1959 Tenn. LEXIS 342 (1959).

Parents, who were partial dependents of a minor son, were entitled to compensation for a period extending beyond his minority. Tennessee Chemical Co. v. Smith, 145 Tenn. 532, 238 S.W. 97, 1921 Tenn. LEXIS 93 (1922).

Parents owning home and receiving rents are not wholly dependent on a son paying them board. Knox v. Washer, 153 Tenn. 630, 284 S.W. 888, 1925 Tenn. LEXIS 48 (1926).

Where proof showed that parents of deceased 19 year old boy owned their own home in a small country settlement where the cost of living was low, that the father earned $125 per month and that the boy had formerly earned approximately $35.00 per month working part time and had begun work on a $100 per month job only the day before he was killed, there was material evidence to support the finding of the trial court that the parents and brothers and sisters of the deceased worker were not partial dependents of such worker. Sweeton v. Tennessee Consol. Coal Co., 179 Tenn. 216, 164 S.W.2d 1010, 1941 Tenn. LEXIS 106 (1942).

In an action for compensation by the mother of deceased, the right to compensation, as a dependent of the deceased employee, was a fact question of the petitioner's reliance, in whole or part, for support furnished by the deceased and the existence of the right to compel her husband to support her would not affect her position as a dependent if in fact she is one. Phillips & Buttorff Mfg. Co. v. Jordan, 190 Tenn. 74, 227 S.W.2d 776, 1950 Tenn. LEXIS 420 (1950).

Evidence supported finding of trial court that mother of deceased worker was partial dependent. Volz v. Southerland, 200 Tenn. 344, 292 S.W.2d 385, 1956 Tenn. LEXIS 416 (1956).

“Parent” includes parents by adoption and stepparents. Sullivan Electric Co. v. McDonald, 541 S.W.2d 112, 1976 Tenn. LEXIS 530 (Tenn. 1976).

46. Mother.

The term “mother” includes stepmother. Sullivan Electric Co. v. McDonald, 541 S.W.2d 112, 1976 Tenn. LEXIS 530 (Tenn. 1976).

47. Dependency on Son or Brother.

The rule of conclusive dependency of a wife on a husband and of children under 16 years of age upon a father does not apply to a son or a brother. Sweeton v. Tennessee Consol. Coal Co., 179 Tenn. 216, 164 S.W.2d 1010, 1941 Tenn. LEXIS 106 (1942).

In determining amount of partial dependency benefits to be awarded minor decedent's brothers, the gross amount paid by him to his mother is not relevant but it is necessary to determine the actual support contributed by decedent to each dependent. Pilot Oil Corp. v. Sellers, 225 Tenn. 700, 475 S.W.2d 668, 1972 Tenn. LEXIS 407 (1972).

48. Mother-In-Law as Dependent.

A mother-in-law of a decedent who had an income equal to her claim of compensation, and had sons and daughters able and willing to supply her needs when necessary, is not entitled to compensation as a dependent of her deceased son-in-law. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

Employee's mother-in-law, who had lived in his family for about a year, who was assisted to some extent by two sons, and who earned her keep by managing the household affairs, was not a dependent. Southern Motor Car Co. v. Patterson, 168 Tenn. 252, 77 S.W.2d 446, 1934 Tenn. LEXIS 47 (1935).

49. Aunt as Dependent.

An aunt of the employee is not to be compensated. Knoxsville Gray Eagle Marble Co. v. Meek, 159 Tenn. 577, 21 S.W.2d 625, 1929 Tenn. LEXIS 13 (1929).

50. Amendment of Pleadings.

The failure to name a deceased employee's dependent sister as a party plaintiff in his father's petition for compensation is cured by amendment of the petition so as to recover for her benefit, and offering proof of her dependency without objection. Bohlen-Huse Coal & Ice Co. v. McDaniel, 148 Tenn. 628, 257 S.W. 848, 1923 Tenn. LEXIS 48 (1924).

51. Finding of Trial Court — Effect on Appeal.

Where there was ample evidence to sustain the finding of the trial court as to the bona fides of the relationship to and the dependency on the deceased of those in favor of whom the award was made, the supreme court would not consider such question on appeal. Johnson v. Copeland, 178 Tenn. 431, 158 S.W.2d 986, 1941 Tenn. LEXIS 74 (1942).

Where there was material evidence to support the finding of the trial judge as to the dependency of the mother and sister of deceased worker, such finding was conclusive on appeal. Diamond Coal Mining Co. v. Curnutt, 179 Tenn. 278, 165 S.W.2d 575, 1942 Tenn. LEXIS 21 (1942).

52. Method of Payment.

The award of death benefits to the woman who was married to decedent at the time of his death and her dependent 15 year old son who lived with them and to an eight year old child who was said to be decedent's illegitimate daughter, with substantial evidence supporting that claim, was proper, while the court's provision that lump sum payments could be made was improper where the beneficiaries did not agree to lump sum payments. Williams v. Travelers Ins. Co., 530 S.W.2d 283, 1975 Tenn. LEXIS 563 (Tenn. 1975).

Death benefits awarded under T.C.A. § 50-6-210 can be commuted to a lump sum. Jones v. General Accident Ins. Co., 856 S.W.2d 133, 1993 Tenn. LEXIS 195 (Tenn. 1993).

53. Duration of Payments.

Even though death benefits to dependents are subject to a maximum and minimum weekly benefit and maximum total benefit, T.C.A. § 50-6-210 does not place a limit on the number of weeks such benefits are to be paid. Consequently, an award of death benefits should continue to be paid beyond 440 weeks until the maximum total benefit is reached. Jones v. General Accident Ins. Co., 856 S.W.2d 133, 1993 Tenn. LEXIS 195 (Tenn. 1993).

The only limitation on death benefits to dependents is that the compensation be paid during dependency and must not exceed the maximum total benefit. Benefits are to be paid until the statutory maximum is reached or until the surviving spouse dies or remarries; therefore, the trial court erred in limiting benefits. Jones v. General Accident Ins. Co., 856 S.W.2d 133, 1993 Tenn. LEXIS 195 (Tenn. 1993).

Collateral References.

Bigamous character of marriage as affecting right of one party thereto to compensation for death of other. 80 A.L.R. 1428.

“Dependency” within Workmen's Compensation Acts. 13 A.L.R. 686, 30 A.L.R. 1253, 35 A.L.R. 1066, 39 A.L.R. 313, 53 A.L.R. 218, 62 A.L.R. 160, 86 A.L.R. 865, 100 A.L.R. 1090.

Nonresident aliens, right to maintain action under Workmen's Compensation Acts, based upon death of employee, for benefit of. 138 A.L.R. 695.

Right of woman who marries injured workman to compensation as his widow or surviving wife. 98 A.L.R. 993.

Workmen's compensation: posthumous children and children born after accident as dependents. 18 A.L.R.3d 900.

50-6-211. Contribution to payment of compensation by two or more employers — Agreement between employers.

  1. In case any employee for whose injury or death compensation is payable under this chapter, shall, at the time of injury, be employed and paid jointly by two (2) or more employers subject to this chapter, the employers shall contribute to the payment of the compensation in a proportion of their several wage liability to the employee.
  2. If one (1) or more, but not all, of the employers are subject to this chapter, and otherwise subject to liability for compensation under this chapter, then the liability of those who are so subject shall be to pay the proportion of the entire compensation that their portion of the wage liability bears to the wages of the employee; provided, that nothing in this section shall prevent any agreement between the different employers between themselves as to the distribution of the ultimate burden of the compensation.

Acts 1919, ch. 123, § 29; Shan. Supp., § 3608a180; Code 1932, § 6882; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1012.

Cross-References. Inapplicability to claims filed against state, § 9-8-307.

Law Reviews.

Third-Party Liability and Adjustments Between Different Employers and Insurance Carriers in Tennessee (William J. Harbison), 16 Vand. L. Rev. 1113 (1963).

NOTES TO DECISIONS

1. Joint Employers Paying Equal Salaries.

Where it clearly appeared that deceased employee was being paid $10.00 per week by each of two companies and that this had been so for a long period of time, this justified the finding by the trial judge under this section that the two employers should contribute to the award in equal proportions. Riverside Mill Co. v. Parsons, 176 Tenn. 381, 141 S.W.2d 895, 1939 Tenn. LEXIS 128 (1940).

2. Part of Employment Not Subject to Statute.

Where worker who was killed in the course of his employment as an employee of city water and light department was also paid for work done for other departments of the city by the department for whom he did the work but only the city water and light department was operating under the provisions of the compensation statute, the payments which he received from other departments could not be added to what he received from the water and light department in calculating his weekly wage. Travelers Ins. Co. v. Dudley, 180 Tenn. 191, 173 S.W.2d 142 (1943).

3. Workers Under Federal Programs.

A Comprehensive Employment Training Act (repealed) worker is “paid jointly.” The agency pays the employee with dollars, and the business pays the employee with training and experience. Jackson Housing Authority v. Auto-Owners Ins. Co., 686 S.W.2d 917, 1984 Tenn. App. LEXIS 3363 (Tenn. Ct. App. 1984).

Collateral References.

Contribution or indemnity from employer or insurer, right to, of one other than employer or insurer liable under act. 66 A.L.R. 1433.

Remedy as between subcontractor and principal contractor (or independent contractor or contractee) in respect of workmen's compensation paid by one to employee injured through other's negligence, where injured employee had no remedy apart from the act. 166 A.L.R. 1221.

Right as between employer primarily responsible under Workmen's Compensation Act and employer secondarily liable under that act where injury was due to latter's negligence. 117 A.L.R. 571.

50-6-212. Hernia or rupture.

  1. In all claims for compensation for hernia or rupture, resulting from injury by accident arising primarily out of and in the course and scope of the employee's employment, it must be definitely proven to the satisfaction of the court that:
    1. There was an injury resulting in hernia or rupture;
    2. The hernia or rupture appeared suddenly;
    3. It was accompanied by pain;
    4. The hernia or rupture immediately followed the accident; and
    5. The hernia or rupture did not exist prior to the accident for which compensation is claimed.
  2. All hernia or rupture, inguinal, femoral or otherwise, so proven to be the result of an injury by accident arising primarily out of and in the course and scope of the employment, shall be treated in a surgical manner by a radical operation. If death results from the operation, the death shall be considered as the result of the injury, and compensation paid in accordance with this chapter.
    1. In case the injured employee refuses to undergo the radical operation for the cure of the hernia or rupture, no compensation will be allowed during the time the refusal continues.
    2. If, however, it is shown that the employee has some chronic disease, or is otherwise in such physical condition that the court finds it unsafe for the employee to undergo the operation, the employee shall be paid compensation in accordance with this chapter.

Acts 1941, ch. 90, § 10; C. Supp. 1950, § 6892.1 (Williams, § 6892a); T.C.A. (orig. ed.), § 50-1009; Acts 2013, ch. 289, §§ 57, 58.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, inserted “primarily” and “and scope” to the first sentence of (a) and the first sentence of (b).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

50-6-212. Hernia or rupture. [Applicable to injuries occurring prior to July 1, 2014.]

  1. In all claims for compensation for hernia or rupture, resulting from injury by accident arising out of and in the course of the employee's employment, it must be definitely proven to the satisfaction of the court that:
    1. There was an injury resulting in hernia or rupture;
    2. The hernia or rupture appeared suddenly;
    3. It was accompanied by pain;
    4. The hernia or rupture immediately followed the accident; and
    5. The hernia or rupture did not exist prior to the accident for which compensation is claimed.
  2. All hernia or rupture, inguinal, femoral or otherwise, so proven to be the result of an injury by accident arising out of and in the course of the employment, shall be treated in a surgical manner by a radical operation. If death results from the operation, the death shall be considered as the result of the injury, and compensation paid in accordance with this chapter.
    1. In case the injured employee refuses to undergo the radical operation for the cure of the hernia or rupture, no compensation will be allowed during the time the refusal continues.
    2. If, however, it is shown that the employee has some chronic disease, or is otherwise in such physical condition that the court finds it unsafe for the employee to undergo the operation, the employee shall be paid compensation in accordance with this chapter.

Acts 1941, ch. 90, § 10; C. Supp. 1950, § 6892.1 (Williams, § 6892a); T.C.A. (orig. ed.), § 50-1009.

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 23.

Law Reviews.

Some Problems Arising Under the Workmen's Compensation Law of Tennessee, 8 Vand. L. Rev. 616 (1954).

NOTES TO DECISIONS

1. Purpose of Section.

By this section the general assembly intended to place certain limitations and restrictions upon the right to recover compensation for injuries causing hernia and also to the aggravation or enlargement of preexisting hernia and to point out and distinguish the injuries which are compensable and those that are noncompensable, and for the injured employee to recover he must bring his case within the provisions of the section. Matthews v. Hardaway Contracting Co., 179 Tenn. 98, 163 S.W.2d 59, 1941 Tenn. LEXIS 99 (1942).

The question of when a hernia is caused by an injury, or merely results from some inherent physical weakness or disease, is one that is difficult of solution by the courts. It was the object and purpose of this section to remove the issue as far as possible from the field of conjecture and speculation. Matthews v. Hardaway Contracting Co., 179 Tenn. 98, 163 S.W.2d 59, 1941 Tenn. LEXIS 99 (1942).

2. Application of Section.

It was not the legislative intent that a diaphragmatic hernia must be proved according to the terms of this section. Sullivan v. Green, 206 Tenn. 42, 331 S.W.2d 686, 1959 Tenn. LEXIS 422 (1959).

Plaintiff who suffered a diaphragmatic hernia was not required to undergo surgery in order to obtain continued payments for total permanent disability. Sullivan v. Green, 206 Tenn. 42, 331 S.W.2d 686, 1959 Tenn. LEXIS 422 (1959).

While it is not stated in the statute that the employer must offer the operation to the employee, it is reasonable to expect that the employee should be informed of the necessity for and/or offer of the operation and the employer or his carrier must furnish the cost thereof. Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124, 1966 Tenn. LEXIS 559 (1966).

The general rule that an employer who does not give his employee a physical examination takes such employee in his present physical condition does not apply to hernias. F. H. Lawson Co. v. Rambo, 225 Tenn. 217, 465 S.W.2d 732, 1971 Tenn. LEXIS 296 (1971).

Subdivision (a)(5) of T.C.A. § 50-6-212 applies to situations where an employee has either a congenital hernia, or a preexisting hernia which was not occupationally caused or related. In such cases, even if the employee sustains an accidental injury in the scope and course of his employment that aggravates the prior noncompensable hernia, recovery is not permitted. Cook v. Great West Casualty Co., 779 S.W.2d 365, 1989 Tenn. LEXIS 549 (Tenn. 1989).

3. “Hernia or Rupture” — Meaning and Scope.

When this statute speaks of “hernia or rupture” it contemplates a rupture of the abdominal wall, such as could be seen by the claimant, and that it “immediately followed the accident.” Stone & Webster Engineering Corp. v. Davis, 191 Tenn. 42, 231 S.W.2d 376, 1950 Tenn. LEXIS 543 (1950).

4. “Suddenly” and “Immediately” — Meaning and Scope.

This section expressly requires proof “that the hernia or rupture appeared suddenly,” or “immediately followed the accident,” one would have to give the section a very narrow construction to hold that the hernia must appear instantaneously, or at the moment of the accident. Etter v. Blue Diamond Coal Co., 187 Tenn. 407, 215 S.W.2d 803, 1948 Tenn. LEXIS 446 (1948).

When our general assembly used the word “suddenly” in this section, it meant that the hernia must have developed without warning, or, without previous notice, and that it must not be attributable to any preexisting cause. Etter v. Blue Diamond Coal Co., 187 Tenn. 407, 215 S.W.2d 803, 1948 Tenn. LEXIS 446 (1948).

A hernia is “immediate” and compensable if it appears so soon after the injury that it would not be possible to attribute it to any other cause. Etter v. Blue Diamond Coal Co., 187 Tenn. 407, 215 S.W.2d 803, 1948 Tenn. LEXIS 446 (1948).

Where at time worker was struck in groin or abdomen in March he felt pain and sought medical attention at which time he was found to be suffering from hematuria, and worker continued to be examined and treated until July when hernia was discovered and repaired, statutory requirements that hernia appear suddenly and immediately following the accident were met. Floyd v. Travelers Ins. Co., 225 Tenn. 38, 463 S.W.2d 407, 1970 Tenn. LEXIS 376 (1970).

5. Pain.

Evidence that employee felt stinging sensation in his back and side while struggling with 200 pound machine was sufficient to meet the requirement that hernia must be accompanied with pain. Paristyle Beauty Salon, Inc. v. Chandler, 207 Tenn. 587, 341 S.W.2d 731, 1960 Tenn. LEXIS 497 (1960).

6. Facts Justifying Recovery.

Knot discovered while taking a bath on Saturday night following painful accident on preceding Tuesday when employee was hit in the stomach by a machine which was so painful that he was required to sit down on the floor for 30 minutes was compensable as a hernia, since it “appeared suddenly,” followed the accident “immediately” and could not be attributed to any cause other than the accident. Etter v. Blue Diamond Coal Co., 187 Tenn. 407, 215 S.W.2d 803, 1948 Tenn. LEXIS 446 (1948).

Employee was entitled to compensation for hernia where he testified that after jumping from a wagon he felt a sharp pain in the bottom of his stomach and later in the day discovered a knot in the groin though doctor testified that tissue indicated that hernia had existed for years and that appendix had stuck in the hernia. Stone & Webster Engineering Corp. v. Davis, 191 Tenn. 42, 231 S.W.2d 376, 1950 Tenn. LEXIS 543 (1950).

Although all medical testimony was to the effect that hernia had been properly repaired and that petitioner was able to do the same work that he did before the accident, where petitioner testified that he was unable to do heavy lifting or walking because of pain at the site of the operation, supreme court would not overrule finding of trial court in making award for permanent partial disability, even though it may have decided otherwise on the evidence if it had been the trial court, since such testimony of petitioner furnished evidence for the trial court's finding, it being common knowledge that surgical operations often leave scar tissue and tenderness. Wood v. Edenfield Electric Co., 211 Tenn. 295, 364 S.W.2d 908, 1962 Tenn. LEXIS 358 (1963).

7. Injury Aggravating Hernia.

Where an injury received in the course of employment aggravated an existing hernia but was not the cause of the hernia, such injury was not compensable under the statute. Matthews v. Hardaway Contracting Co., 179 Tenn. 98, 163 S.W.2d 59, 1941 Tenn. LEXIS 99 (1942); Miller v. Fentress Coal & Coke Co., 190 Tenn. 670, 231 S.W.2d 343, 1950 Tenn. LEXIS 533 (1950).

Where evidence supported finding of chancellor that second injury was aggravation of previous injury occurring over a year previously and payments for the aggravated injury were made within the period of limitation, chancellor did not err in permitting employee to seek relief on the earlier injury where employer brought suit to settle dispute on second injury. Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124, 1966 Tenn. LEXIS 559 (1966).

When an employee has a recurrence of a compensable hernia, or in the course of employment aggravates a previously compensable hernia, then the employee is entitled to further compensation benefits, both temporary and total, if causation is proved. Cook v. Great West Casualty Co., 779 S.W.2d 365, 1989 Tenn. LEXIS 549 (Tenn. 1989).

8. Judicial Knowledge.

It is a matter of common knowledge to men engaged in the science of medicine and surgery, of which the court may take judicial cognizance, that a hernia or rupture may result from causes wholly independent of any traumatic or compensable injury. Matthews v. Hardaway Contracting Co., 179 Tenn. 98, 163 S.W.2d 59, 1941 Tenn. LEXIS 99 (1942).

9. Second Operation.

Since this section makes no provision for a second operation after a first has been unsuccessful, the question falls within the sound discretion of the trial judge to determine whether, under all the facts and circumstances of the particular case, to require a second operation, is or is not reasonable. Greeneville Cabinet Co. v. Ramsey, 195 Tenn. 409, 260 S.W.2d 157, 1953 Tenn. LEXIS 357 (1953).

10. Notice.

The mere fact that employee felt some sort of a stinging pain in the lower abdominal region and had some six years before suffered a hernia was not sufficient to charge such employee with notice that he had suffered a hernia at the later time, and therefore such employee had a reasonable excuse for failure to give notice to the employer in the time required where he promptly gave such notice when he found out that he did have a hernia. Farmer v. Blue Diamond Coal Co., 204 Tenn. 293, 319 S.W.2d 479, 1958 Tenn. LEXIS 270 (1958).

11. Refusal of Operation.

Where only medical evidence in record of probative value was to effect that employee suffered simple hernia which could be repaired without danger to life of employee but such evidence was overlooked by trial court in awarding compensation, supreme court would remand case for further proceedings with provision that if employee refused operation compensation payments should be suspended from date employer offered operation. Hammonds v. Rio Grande Fence Co., 217 Tenn. 190, 396 S.W.2d 347, 1965 Tenn. LEXIS 533 (1965).

A reasonable refusal to undergo an operation will not result in suspension of compensation payments. Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124, 1966 Tenn. LEXIS 559 (1966).

Where failure of employee to submit to hernia operation was due to his failure to understand the nature and consequences of an operation and as to who would pay for it, failure of employee to appear was not such as to justify denial of compensation. Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124, 1966 Tenn. LEXIS 559 (1966).

12. Preexisting Hernia.

Subdivision (a)(5) of T.C.A. § 50-6-212 requires a finding by the trial court that “the hernia or rupture did not exist prior to the accident for which compensation is claimed.” The terms “hernia” and “rupture” are used interchangeably in the statute, to refer to the same kind of medical condition, a protrusion of an organ or tissue through the abdominal wall, resulting from an inherent weakness in the abdominal wall. The language of the statute refers to the current “hernia or rupture,” i.e., the one which results from “the accident for which compensation is claimed,” and not to a past condition which is unrelated to the new injury. Capps v. Goodlark Medical Center, Inc., 804 S.W.2d 887, 1991 Tenn. LEXIS 63 (Tenn. 1991).

All hernias, by definition, result from “preexisting weakness,” i.e., a weakness in the abdominal wall that makes it possible for a hernia to develop. However, this fact does not bar workers' compensation for all hernias. They are compensable if they meet the criteria set out in subsection (a) of T.C.A. § 50-6-212, criteria which are designed to insure that the employee's hernia “results from some form of trauma arising out of and in the course of the workman's employment.” Capps v. Goodlark Medical Center, Inc., 804 S.W.2d 887, 1991 Tenn. LEXIS 63 (Tenn. 1991).

Employee's hernia was, in fact, caused by “the accident for which compensation is claimed” and was not already in existence at the time of the accident. Her prior surgical incision, long since healed, was not a preexisting “hernia or rupture” for purposes of subdivision (a)(5) of T.C.A. § 50-6-212. Capps v. Goodlark Medical Center, Inc., 804 S.W.2d 887, 1991 Tenn. LEXIS 63 (Tenn. 1991).

Collateral References.

Hernia as result of sudden strain as accident or accidental injury. 98 A.L.R. 205.

Preexisting hernia or physical condition tending to produce it as affecting right to compensation. 19 A.L.R. 102, 28 A.L.R. 204, 60 A.L.R. 1299.

Sufficiency of proof that hernia resulted from accident or incident in suit rather than from preexisting condition. 2 A.L.R.3d 434.

50-6-213. Epileptics — Election not to be covered by certain provisions — Revocation.

  1. Epileptics may elect not to be subject to this part for injuries resulting because of epilepsy and still remain subject to its provisions for all other injuries.
  2. This election shall be made by giving notice to the employer in writing on a form to be furnished by the bureau of workers' compensation and filing a copy of the notice with the bureau.
  3. An election may be revoked by giving written notice to the employer of revocation, and the revocation shall be effective upon filing copy of the notice with the bureau.

Acts 1977, ch. 223, § 1; impl. am. Acts 1980, ch. 534, § 1; T.C.A., § 50-1029; 2015, ch. 341, § 15.

Amendments. The 2015 amendment substituted “bureau” for “division” throughout.

Effective Dates. Acts 2015, ch. 341, § 19. May 4, 2015.

Cross-References. Inapplicability to claims filed against state, § 9-8-307.

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 27.

Law Reviews.

Workers' Compensation Outline (Paul Campbell III), 18 No. 3 Tenn. B.J. 11 (1982).

50-6-214. Responsibility for payment of benefits and loss adjustment expenses between insurance carrier and self-insured employer.

  1. The administrator or the administrator's designee shall order appropriate workers' compensation benefits and loss adjustment expenses associated with the claim to be paid on an equal basis by the insurance carrier or carriers and the self-insured employer, as appropriate, in any case where:
      1. An employer changes insurance carriers;
      2. The employer having been self-insured, becomes insured; or
      3. The employer having been insured, is approved to be self-insured; and
    1. One (1) of the following applies:
      1. The compensability of the claim is not being disputed by the employer or carrier; or
      2. A workers' compensation judge has determined the claim to be compensable or ordered the provision of benefits to an employee; and
    2. There is a dispute as to which entity is responsible to provide workers' compensation benefits to a worker.
  2. Upon an agreement by the parties or a court order as to which entity is responsible to pay the workers' compensation benefits to the employee, the entity responsible for the provision of workers' compensation benefits shall reimburse the other entity all moneys paid for or on behalf of the employee as ordered by the administrator or the administrator's designee, plus interest from the date of payment at the rate set by § 47-14-121.

Acts 2007, ch. 378, § 1; 2013, ch. 282, §§ 1, 7.

Amendments. The 2013 amendment, effective July 1, 2014, substituted “administrator” for “commissioner” and substituted “administrator’s” for “commissioner’s” in (a) and (b); and near the beginning of (a)(2)(B) substituted “judge” for “specialist”.

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

50-6-214. Responsibility for payment benefits and loss adjustment expenses between insurance carrier and self-insured employer. [Applicable to injuries occurring prior to July 1, 2014.]

  1. The commissioner or the commissioner's designee shall order appropriate workers' compensation benefits and loss adjustment expenses associated with the claim to be paid on an equal basis by the insurance carrier or carriers and the self-insured employer, as appropriate, in any case where:
      1. An employer changes insurance carriers;
      2. The employer having been self-insured, becomes insured; or
      3. The employer having been insured, is approved to be self-insured; and
    1. One (1) of the following applies:
      1. The compensability of the claim is not being disputed by the employer or carrier; or
      2. A workers' compensation specialist has determined the claim to be compensable or ordered the provision of benefits to an employee; and
    2. There is a dispute as to which entity is responsible to provide workers' compensation benefits to a worker.
  2. Upon an agreement by the parties or a court order as to which entity is responsible to pay the workers' compensation benefits to the employee, the entity responsible for the provision of workers' compensation benefits shall reimburse the other entity all moneys paid for or on behalf of the employee as ordered by the commissioner or the commissioner's designee, plus interest from the date of payment at the rate set by § 47-14-121.

Acts 2007, ch. 378, § 1.

50-6-215. Rental and assignment of PPO network rights.

  1. This section may be referred to as the “Rental and Assignment of PPO Network Rights.”
  2. For purposes of this section, unless the context otherwise requires:
    1. “Contracting agent” means any person that is in direct privity of contract with a medical provider to reimburse the medical provider for medical services provided to an injured worker pursuant to this chapter at rates other than those provided under the workers' compensation medical fee schedule. Nothing contained within this section shall be construed to permit the creation of preferred provider organization networks that permit payments above the medical fee schedule adopted by the department; and
    2. “Workers' compensation payor” means an employer, workers' compensation trust, workers' compensation pool or insurer responsible pursuant to § 50-6-405 for paying a medical provider for the delivery of workers' compensation related healthcare services.
  3. Every contracting agent that sells, leases, assigns, transfers, or conveys its list of contracted medical providers and their contracted reimbursement rates shall, upon entering or renewing a medical provider contract, do all of the following:
    1. Disclose to the medical provider whether the list of contracted medical providers may be sold, leased, transferred, or conveyed to other payors or agents, including workers' compensation insurers or self insureds. The disclosure of the ability to sell, lease, transfer or convey the list or network of medical providers shall be in a section of a contract titled “assignment” or “assignability” or similar title;
    2. Disclose whether workers' compensation payors to whom the list of contracted medical providers may be sold, leased, transferred, or conveyed may be permitted to pay a medical provider's contracted rate if less than the workers' compensation fee schedule. The disclosure of the ability to pay a medical provider's contracted rate, if less than the workers' compensation fee schedule, shall be in a section of a contract titled “assignment” or “assignability” or similar title;
    3. Allow medical providers, upon the initial signing or renewal of a medical provider contract, to decline to participate in networks solely to serve workers' compensation payors that are sold, leased, transferred, or conveyed to workers' compensation payors; and
    4. Maintain a web page that contains a complete listing of customers to whom the network is sold, leased, transferred or conveyed that is accessible to all contracted medical providers and updated at least twice a year, as well as maintain a toll-free telephone number accessible to all contracted medical providers whereby medical providers may access workers' compensation payor summary information and a list of lessees of the network.
    1. The explanation of payment (EOP) or explanation of review (EOR) transmitted to the medical provider shall delineate the following information:
      1. Employer's name;
      2. Injured worker's name;
      3. Name of the workers' compensation payor and the name of the third party administrator if a third party administrator is utilized. If a third party administrator is utilized, then a telephone number for the third party administrator shall be delineated; otherwise, a telephone number for the workers' compensation payor shall be delineated;
      4. Name and telephone number of the entity that analyzes the medical provider bill for the purpose of ensuring that the billed amount complies with the workers' compensation medical fee schedule;
      5. Name and telephone number of the contracting agent that has a written medical provider contract signed by the medical provider whereby the contracting agent or a third party is entitled to access and pay rates other than those provided under the workers' compensation medical fee schedule;
      6. Name and telephone number of the entity that analyzes the medical provider bill for the purpose of reducing the billed amount below the medical fee schedule pursuant to a preferred provider organization network contract, unless the entity is the same entity referenced in subdivision (d)(1)(E);
      7. Amount billed by the medical provider;
      8. Amount permitted by the workers' compensation fee schedule; and
      9. Amount of payment.
    2. Within twenty (20) calendar days of a medical provider submitting in writing to a workers' compensation payor an EOP or EOR that does not comply with subdivision (d)(1), the entity that originally generated the EOP or EOR shall issue to the medical provider a corrected EOP or EOR that complies with subdivision (d)(1).
    3. A workers' compensation payor shall demonstrate that it is entitled to pay a contracted rate within thirty (30) days of receipt of a written request from a medical provider who has received a claim payment from the workers' compensation payor. The medical provider shall include in the request a statement explaining why the payment is not at the correct contracted rate for the services provided. The failure of the medical provider to include such a statement shall relieve the workers' compensation payor from the responsibility of demonstrating that it was entitled to pay the disputed contracted rate. A workers' compensation payor shall be deemed to have demonstrated that it is entitled to pay a contracted rate if it correctly identifies the contracting agent that originally entered into the contract with the medical provider to pay the claim at the contracted rate.
    1. A written complaint alleging a violation of this section by individuals or entities licensed by the department of commerce and insurance may be filed with the bureau of workers' compensation. The bureau may investigate complaints made under this subsection (e) and shall direct all such complaints, along with any investigatory materials, to the department of commerce and insurance. The commissioner of commerce and insurance may take appropriate action in accordance with § 56-2-305.
    2. A written complaint alleging a violation of this section by individuals or entities not licensed by the department of commerce and insurance may be filed with the bureau. The bureau may investigate all complaints made under this subsection (e) and shall have the authority to establish and collect penalties for violations of this section in accordance with § 50-6-118.

Acts 2010, ch. 792, § 2; 2016, ch. 826, § 1.

Compiler's Notes. Acts 2010, ch. 792, § 3 provided that the act, which enacted this section, effective January 1, 2011, shall only apply to workers' compensation medical provider payments made, and an EOR or EOP issued, on or after January 1, 2011.

Acts 2016, ch. 826, § 3 provided that the act, which amended this section, shall apply to all claims submitted to a medical provider on or after July 1, 2016.

Amendments. The 2016 amendment added (e).

Effective Dates. Acts 2016, ch. 826, § 3. July 1, 2016.

50-6-216. Ombudsman program.

  1. The administrator shall establish a workers' compensation ombudsman program to assist injured or disabled employees, persons claiming death benefits, employers, and other persons in protecting their rights, resolving disputes, and obtaining information available under workers' compensation laws. The ombudsman program shall be available only to those individuals or organizations that are not represented by an attorney in the claim for workers' compensation benefits.
  2. No statement, discussion, evidence, allegation or other matter of legal significance that occurs in the presence of an ombudsman shall be admissible as evidence in any other proceeding.
  3. The administrator may adopt rules and regulations consistent with this chapter in order to fulfill the purposes of this section in an orderly and efficient manner.
  4. The bureau shall have authority to assess a civil penalty against any person or organization, with the exception of the state or a representative of the state, that refuses to cooperate with the services provided by an ombudsman as provided in § 50-6-118.
    1. Any party that is not represented by legal counsel may request the services of a workers' compensation ombudsman by contacting the office of mediation services.
    2. The ombudsman's authority shall include, but not be limited to, the following:
      1. Meet with and provide information to unrepresented parties about the unrepresented party's rights and responsibilities under the law;
      2. Explain the administrative process for resolving workers' compensation claims;
      3. Investigate claims and attempt to resolve disputes without resort to alternative dispute resolution and court proceedings;
      4. Communicate with all parties and providers in the claim;
      5. Assist the parties in the completion of forms; and
      6. Facilitate the exchange of medical records.
    3. An ombudsman who is not a licensed attorney shall not provide legal advice; however, an ombudsman who is a licensed attorney may provide limited legal advice but shall not represent any party as the party's attorney. No ombudsman shall make attorney referrals.
    4. An ombudsman shall not be called to testify in any proceeding and no statement or representation made to an ombudsman shall be considered by a workers' compensation judge for any purpose.
    5. An unrepresented party has a right to consult with an ombudsman and receive services under this subsection. If the party receiving the services of an ombudsman obtains legal counsel pertaining to the case or dispute for which the services of an ombudsman were engaged, the party, or the party's counsel, shall immediately notify the bureau and the office of mediation services. Upon receipt of notice that the party has retained counsel, the ombudsman shall terminate all services.

Acts 2013, ch. 289, § 77; 2014, ch. 837, § 1; 2015, ch. 341, § 15; 2016, ch. 1056, § 5.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which enacted this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Pursuant to Article III, Section 18 of the Constitution of Tennessee, Acts 2014, ch. 837 took effect on April 28, 2014 for purposes of promulgating rules.

Acts 2016, ch. 1056, § 6 provided section 5 of the act,  which amended this section, shall apply to injuries that occur on or after July 1, 2016.

Amendments. The 2014 amendment added (e).

The 2015 amendment substituted “bureau” for “division” in (d) and (e)(5).

The 2016 amendment, in (e)(3), inserted “who is not a licensed attorney” in the first sentence, added the proviso at the end of the first sentence, and added the second sentence.

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2014, ch. 837, § 3. July 1, 2014; provided that for purposes of promulgating rules, the act took effect April 28, 2014. [See the Compiler's Notes.]

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2016, ch. 1056, § 6. July 1, 2016.

50-6-217. Workers' compensation appeals board.

    1. The administrator shall establish a workers' compensation appeals board, which must be wholly separate from the court of workers' compensation claims, to review interlocutory and final orders entered by workers' compensation judges upon application of any party to a workers' compensation claim.
    2. Any party aggrieved by an order issued by a workers' compensation judge may appeal the order to the workers' compensation appeals board by filing a timely notice of appeal on a form prescribed by the administrator. Review must be accomplished in the following manner:
      1. Within seven (7) business days after the filing of an interlocutory order, either party may appeal the interlocutory order by filing a notice of appeal with the clerk of the court of workers' compensation claims. Following the expiration of the time established by bureau rules for the parties to file a transcript prepared by a licensed court reporter or a statement of the evidence, along with briefs or position statements specifying the issues presented for review and supporting arguments, the record on appeal must be submitted by the clerk of the court of workers' compensation claims to the clerk of the workers' compensation appeals board. Within twenty (20) business days of the receipt of the record on appeal or oral argument conducted pursuant to bureau rules, whichever is later, the workers' compensation appeals board shall issue a decision affirming, reversing, or modifying the interlocutory order and remanding the case. The decision of the workers' compensation appeals board is not subject to further review; and
      2. Within thirty (30) calendar days after the issuance of a compensation order pursuant to § 50-6-239(c)(2), either party may appeal the compensation order by filing a notice of appeal with the clerk of the court of workers' compensation claims. The appealing party has fifteen (15) calendar days after the record is filed with the clerk of the workers' compensation appeals board to file a brief. A brief in response, if any, must be filed within fifteen (15) calendar days of the filing of the appellant's brief. No later than forty-five (45) calendar days after oral argument conducted pursuant to bureau rules or the expiration of the fifteen-day period for a responsive brief to be filed, whichever is later, the workers' compensation appeals board shall issue a decision affirming, reversing, modifying the compensation order; remanding the case; or any combination thereof. For purposes of further appellate review, the workers' compensation appeals board must, if appropriate, certify as final the order of the court of workers' compensation claims as affirmed, reversed, modified, or remanded. The decision of the workers' compensation appeals board is appealable to the Tennessee Supreme Court as provided for in the Tennessee Rules of Appellate Procedure. If a compensation order is timely appealed to the workers' compensation appeals board, the order issued by the workers' compensation judge must not become final, as provided in § 50-6-239(c)(7), until the workers' compensation appeals board issues a written decision certifying the order as a final order.
  1. This section shall have no effect on the procedures established for filing a claim for workers' compensation benefits in the division of claims and risk management, pursuant to § 9-8-402, or in the claims commission, pursuant to § 9-8-307. The workers' compensation appeals board shall have no jurisdiction over an appeal of a decision of a commissioner of the claims commission.
  2. The decisions of the workers' compensation appeals board shall not be subject to judicial review pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
    1. In the appeal of an interlocutory order, with the exception of the filing of the notice of appeal, when an act is required to be performed within a specified time, the workers' compensation appeals board may extend the specified time only in exceptional circumstances not to exceed five (5) additional business days, either upon its own motion or upon motion of any party. In the appeal of a compensation order, with the exception of the filing of the notice of appeal, when an act is required to be performed within a specified time, the workers' compensation appeals board may extend the specified time only in exceptional circumstances not to exceed twenty-one (21) additional calendar days, either upon its own motion or upon motion of any party.
    2. The administrator shall have the authority to assess filing fees sufficient to offset the costs of administering this chapter.

Acts 2013, ch. 289, § 83; 2015, ch. 341, §§ 7, 8, 15; 2016, ch. 816, § 4;  2017, ch. 271, § 1; 2017, ch. 344, § 7.

Code Commission Notes.

This section was originally designated as § 50-6-219 but, prior to the July 1, 2014 effective date, was redesignated as § 50-6-217 by authority of the code commission.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which enacted this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2015 amendment rewrote (a) which read: “(a) The administrator shall establish a workers' compensation appeals board, which shall be wholly separate from the court of workers' compensation claims, to review interlocutory and final orders entered by workers' compensation judges upon application of any party to a workers' compensation claim. “(1) Any party aggrieved by an order for temporary disability or medical benefits or an order either awarding permanent disability or medical benefits or denying a claim for permanent disability or medical benefits issued by a workers' compensation judge may request review of the order by the workers' compensation appeals board by filing a request for appeal, on a form prescribed by the administrator. Review shall be accomplished in the following manner: “(A) Within seven (7) business days after issuance of an interlocutory order for temporary disability or medical benefits by a workers' compensation judge, either party may request an appeal of the decision. Within seven (7) business days of receiving an appeal of an interlocutory order, the workers' compensation appeals board shall enter an order affirming, reversing, remanding, or modifying the decision of the workers' compensation judge. The workers' compensation appeals board's decision on an appeal of an interlocutory order shall not be subject to further review. “(B) Within thirty (30) calendar days after issuance of a compensation order pursuant to § 50-6-239(c)(2), either party may request an appeal of the decision by filing a notice of appeal with the workers' compensation appeals board. Parties shall have fifteen (15) calendar days after an appeal is filed to file briefs with the workers' compensation appeals board. Within forty-five (45) calendar days after receiving an appeal of a compensation order, the workers' compensation appeals board shall issue a decision either affirming the judgment and certifying the workers' compensation judge's order as final or remanding the case. If judgment is affirmed, the final order of the workers' compensation judge shall be immediately appealable to the state supreme court. If a request for administrative review is timely filed, the order issued by the workers' compensation judge shall not become final, as provided in § 50-6-239(c)(7), until the workers' compensation appeals board issues a written decision certifying the order as a final order. “(2) The workers' compensation appeals board may remand the decision of the workers' compensation judge, if the rights of the party seeking review have been prejudiced because findings, inferences, conclusions, or decisions of a workers' compensation judge: “(A) Violate constitutional or statutory provisions; “(B) Exceed the statutory authority of the workers' compensation judge; “(C) Do not comply with lawful procedure; “(D) Are arbitrary, capricious, characterized by abuse of discretion, or clearly unwarranted exercise of discretion; or “(E) Are not supported by evidence that is both substantial and material in the light of the entire record.”; added (d); and substituted “bureau” for “division” once.

The 2016 amendment, in (a)(2), deleted “for temporary disability or medical benefits or an order either awarding permanent disability or medical benefits or denying a claim for permanent disability or medical benefits” preceding “issued by” in the first sentence of the introductory paragraph; in (A), deleted “for temporary disability or medical benefits by a workers' compensation judge” preceding “, either party” in the first sentence, substituted “Following” for “Upon” at the beginning of the second sentence, substituted “the record on appeal, the workers' compensation appeals board shall issue a decision affirming” for “the record on appeal by the clerk of the workers' compensation appeals board, the appeals board shall enter an order affirming” in the penultimate sentence, and substituted “The decision of the workers' compensation appeals board” for “The workers' compensation appeals board's order” at the beginning of the last sentence; and, in (B), deleted “Thereafter” from the beginning of the second sentence, substituted “issue a decision affirming, reversing, modifying the compensation order and/or remanding the case” for “issue a decision either affirming and certifying as final the compensation order, or reversing or modifying the compensation order and remanding the case”  at the end of the fourth sentence, rewrote the penultimate sentence which read: “If the compensation order is affirmed and certified, the final order of the workers' compensation judge shall be immediately appealable to the Tennessee Supreme Court.”, and substituted “workers' compensation appeals board” for “appeals board” in the last sentence.

The 2017 amendment by ch. 271 substituted “division of claims and risk management” for “division of claims administration” in the first sentence of (b).

The 2017 amendment by ch. 344 rewrote (a), which read: “(1)  The administrator shall establish a workers' compensation appeals board, which shall be wholly separate from the court of workers' compensation claims, to review interlocutory and final orders entered by workers' compensation judges upon application of any party to a workers' compensation claim. “(2)  Any party aggrieved by an order issued by a workers' compensation judge may appeal the order to the workers' compensation appeals board by filing a notice of appeal on a form prescribed by the administrator. Review shall be accomplished in the following manner: “(A)  Within seven (7) business days after issuance of an interlocutory order, either party may appeal the interlocutory order by filing a notice of appeal with the clerk of the court of workers' compensation claims. Following the expiration of the time established by bureau rules for the parties to file a transcript prepared by a licensed court reporter or a statement of the evidence, along with briefs or position statements specifying the issues presented for review and supporting arguments, the record on appeal shall be submitted by the clerk of the court of workers' compensation claims to the clerk of the workers' compensation appeals board. Within seven (7) business days of the receipt of the record on appeal, the workers' compensation appeals board shall issue a decision affirming, reversing, or modifying and remanding the interlocutory order of the workers' compensation judge. The decision of the workers' compensation appeals board shall not be subject to further review; and  “(B)  Within thirty (30) calendar days after issuance of a compensation order pursuant to § 50-6-239(c)(2), either party may appeal the compensation order by filing a notice of appeal with the clerk of the court of workers' compensation claims. The appealing party shall have fifteen (15) calendar days after the record is filed with the clerk of the workers' compensation appeals board to file a brief. A brief in response, if any, shall be filed within fifteen (15) calendar days of the filing of the appellant's brief. No later than forty-five (45) calendar days after the expiration of the fifteen-day period for a responsive brief to be filed, the workers' compensation appeals board shall issue a decision affirming, reversing, modifying the compensation order and/or remanding the case. For purposes of further appellate review, the workers' compensation appeals board shall certify as final the order of the court of workers' compensation claims as affirmed, reversed, modified, or remanded. The decision of the workers' compensation appeals board shall be appealable to the Tennessee Supreme Court as provided for in the Tennessee Rules of Appellate Procedure. If a compensation order is timely appealed to the workers' compensation appeals board, the order issued by the workers' compensation judge shall not become final, as provided in § 50-6-239(c)(7), until the workers' compensation appeals board issues a written decision certifying the order as a final order.“(3)  The workers' compensation appeals board may reverse or modify and remand the decision of the workers' compensation judge if the rights of any party have been prejudiced because findings, inferences, conclusions, or decisions of a workers' compensation judge:  “(A)  Violate constitutional or statutory provisions; “(B)  Exceed the statutory authority of the workers' compensation judge; “(C)  Do not comply with lawful procedure;“(D)  Are arbitrary, capricious, characterized by abuse of discretion, or clearly an unwarranted exercise of discretion; or “(E)  Are not supported by evidence that is both substantial and material in the light of the entire record.”

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2016, ch. 816, § 11. April 14, 2016.

Acts 2017, ch. 271, § 3. May 4, 2017.

Acts 2017, ch. 344, § 12. May 9, 2017.

NOTES TO DECISIONS

1. Constitutionality.

Constitutional validity of the statutes creating the Workers'  Compensation Appeals Board was not drawn in question until the claimant had the opportunity to present his constitutional challenge before a judicial court because the Appeals Board, as an administrative tribunal, did not have the authority to determine the facial constitutionality of a statute; thus, the claimant satisfied the notice requirement for his constitutional challenges, and did not waive his right to bring those constitutional challenges. Pope v. Nebco of Cleveland, Inc., — S.W.3d —, 2018 Tenn. LEXIS 146 (Tenn. Jan. 16, 2018).

Statutes creating the Workers'  Compensation Appeals Board do not violate the constitutional separation of powers requirement because the appellate review exercised by the Appeals Board primarily serves an intra-agency purpose of ensuring that initial agency decisions comply with law and procedure and are supported by substantial evidence, and that function does not frustrate or interfere with the adjudicative function of the courts; Tennessee's workers'  compensation statutory scheme still provides two avenues for judicial review; and a party aggrieved by a decision of the Court of Workers'  Compensation Claims may still appeal directly to the Tennessee Supreme Court rather than filing an appeal with the Appeals Board. Pope v. Nebco of Cleveland, Inc., — S.W.3d —, 2018 Tenn. LEXIS 146 (Tenn. Jan. 16, 2018).

2. Burden of Proof.

Evidence did not preponderate against the trial court's determination that a workers'  compensation claimant failed to establish a compensable injury to his left shoulder occurring on July 15, 2014. Furthermore, the trial court's order did not violate any of the standards set forth in T.C.A. § 50-6-217(a)(3). Thysavathdy v. Bridgestone Ams. Tire Operations, — S.W.3d —, 2018 Tenn. LEXIS 313 (Tenn. June 8, 2018).

50-6-218. Appointment of judges on the workers' compensation appeals board.

  1. The governor, in consultation with the speaker of the house of representatives and the speaker of the senate, shall appoint three (3) qualified individuals to serve as judges on the workers' compensation appeals board. Each individual selected shall be a Tennessee licensed attorney, with at least seven (7) years' experience in workers' compensation matters, shall be at least thirty (30) years of age, and shall be required to attend annual training on workers' compensation laws.
  2. Upon appointment, each judge of the workers' compensation appeals board shall serve a term of six (6) years and may be reappointed for an additional term by the governor upon expiration of the initial term. No judge appointed to the workers' compensation appeals board shall serve more than two (2) full terms, and service of more than half of a six (6) year term shall constitute service of one (1) full term. Any judge appointed to the workers' compensation appeals board to serve less than a full term to fill a vacancy created by the removal or resignation of a judge sitting on the workers' compensation appeals board shall be eligible to serve an additional two (2) full terms. In the initial appointment of judges to the workers' compensation appeals board, one (1) judge appointed shall serve a term of two (2) years, one (1) judge appointed shall serve a term of four (4) years, and one (1) judge appointed shall serve a term of six (6) years.
  3. The governor shall have authority to remove a judge sitting on the workers' compensation appeals board during an unexpired term for the commission of any of the judicial offenses provided in § 17-5-301(j)(1).
  4. Any person appointed to serve as a judge on the workers' compensation appeals board shall be required to take an oath or affirmation to support the constitutions of the United States and of this state, and to administer justice without respect of persons, and impartially to discharge all the duties incumbent upon a judge to the best of the judge's skill and ability. The governor or any active or retired Tennessee judge or chancellor may administer the oath.
  5. No person appointed to serve as a judge on the workers' compensation appeals board shall practice law, or perform any of the functions of attorney or counsel, in any of the courts of this state, except in cases in which the judge may have been employed as counsel previous to the appointment as a judge on the workers' compensation appeals board. A newly appointed judge on the workers' compensation appeals board can practice law only in an effort to wind up the judge's practice and must end the practice of law as soon as reasonably possible and in no event longer than one hundred eighty (180) days after assuming the position of judge on the workers' compensation appeals board.

Acts 2013, ch. 289, § 80; 2014, ch. 837, § 2; 2016, ch. 816, § 5.

Code Commission Notes.

This section was originally designated as § 50-6-217 but, prior to the July 1, 2014 effective date, was redesignated as § 50-6-218 by authority of the code commission.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which enacted this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Pursuant to Article III, Section 18 of the Constitution of Tennessee, Acts 2014, ch. 837 took effect on April 28, 2014 for purposes of promulgating rules.

Amendments. The 2014 amendment inserted “, in consultation with the speaker of the house of representatives and the speaker of the senate,” in the first sentence of (a)(1).

The 2016 amendment rewrote the last sentence of present (4) which read: “The oath may be taken before another workers' compensation judge, any inferior court judge, a retired judge, a retired chancellor or an active or retired judge of the court of general sessions.”

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2014, ch. 837, § 3. July 1, 2014; provided that for purposes of promulgating rules, the act took effect April 28, 2014. [See the Compiler's Notes.]

Acts 2016, ch. 816, § 11. April 14, 2016.

NOTES TO DECISIONS

1. Constitutionality.

Constitutional validity of the statutes creating the Workers'  Compensation Appeals Board was not drawn in question until the claimant had the opportunity to present his constitutional challenge before a judicial court because the Appeals Board, as an administrative tribunal, did not have the authority to determine the facial constitutionality of a statute; thus, the claimant satisfied the notice requirement for his constitutional challenges, and did not waive his right to bring those constitutional challenges. Pope v. Nebco of Cleveland, Inc., — S.W.3d —, 2018 Tenn. LEXIS 146 (Tenn. Jan. 16, 2018).

Statutes creating the Workers'  Compensation Appeals Board do not violate the constitutional provision dealing with the appointment and election of court judges because that constitutional provision does not prohibit the legislature from enacting laws providing for a different manner of appointment, removal, and level of executive control over administrative tribunals. Pope v. Nebco of Cleveland, Inc., — S.W.3d —, 2018 Tenn. LEXIS 146 (Tenn. Jan. 16, 2018).

50-6-219. Education and training program for workers' compensation mediators, judges, chief judge, ombudsman and judges of the workers' compensation appeals board.

The administrator shall institute and maintain an education and training program for workers' compensation mediators, workers' compensation judges, the chief judge, ombudsmen, and the judges of the workers' compensation appeals board in order to assure that these persons maintain current and appropriate skills and knowledge in performing their duties. Before assuming their duties, all persons selected to serve or appointed as workers' compensation mediators, workers' compensation judges, the chief judge, ombudsmen, or as judge of the workers' compensation appeals board shall be provided formal training and education, which shall include training on the department's workers' compensation system, the Tennessee workers' compensation statutes and case law, and the rules and regulations of the bureau of workers' compensation. In addition, such persons shall attend at least seven (7) hours of training each year that is focused on workers' compensation statutes and case law, and the rules and regulations of the bureau of workers' compensation.

Acts 2013, ch. 289, § 81; 2015, ch. 341, § 15.

Code Commission Notes.

This section was originally designated as § 50-6-218 but, prior to the July 1, 2014 effective date, was redesignated as § 50-6-219 by authority of the code commission.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which enacted this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2015 amendment substituted “bureau” for “division” twice.

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-220. [Reserved.]

  1. Whenever payment of compensation is made to a surviving spouse for the surviving spouse's use, or for the surviving spouse's use and the use of a child or children, the written receipt of the payment by the surviving spouse shall acquit the employer in this and all other jurisdictions of the entire injury and all its damages.
  2. Whenever payment is made to any person eighteen (18) years of age or over, the written receipt of the person shall acquit the employer in this and all other jurisdictions of the entire injury and all its damages.
    1. Whenever payment is made to a person under eighteen (18) years of age, or to a dependent child as defined in § 50-6-210(b) over eighteen (18) years of age, the payment shall be paid to a duly and regularly appointed guardian or trustee of the child, and the receipt of the guardian or trustee shall acquit the employer in this and all other jurisdictions of the entire injury and all its damages and shall be in lieu of any claim of the parents of the child or minor for loss of services.
    2. Where the amount of compensation due a person under eighteen (18) years of age does not exceed the sum of two hundred fifty dollars ($250), the court may, in its discretion, direct the amount of compensation due the minor be paid as provided by title 34, chapter 1.

Acts 1919, ch. 123, § 7; Shan. Supp., § 3608a156; Code 1932, § 6858; Acts 1947, ch. 139, § 3; C. Supp. 1950, § 6858; T.C.A. (orig. ed.), § 50-1014; Acts 1997, ch. 368, §§ 1-3.

Law Reviews.

Workmen's Compensation — Exclusiveness of Remedy — Wife's Right to Recover for Loss of Consortium, 22 Tenn. L. Rev. 976 (1953).

NOTES TO DECISIONS

1. Validity of Section.

This statute is not invalid as undertaking to make an election for and a binding contract upon a minor employee when, by reason of such minority, he is unable to make such election or contract, since the statute makes him sui juris as to power of election for purpose of the statute. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

2. Intent of General Assembly as to Coverage.

Sections 50-6-209, this section and 50-6-224 contain express provisions for the wife, children and other dependents of an employee who dies as a result of injury received in a compensable accident, thereby clearly evidencing a legislative intent to bring the entire family group of which the employee is the head within the purposes and coverage of the Workers' Compensation Law. Napier v. Martin, 194 Tenn. 105, 250 S.W.2d 35, 1952 Tenn. LEXIS 356 (1952).

3. Widow's Settlement.

The settlement by widow for herself and children bars them, and, also, an action at law brought by an administrator appointed on her authority. McCreary v. Nashville, C. & S. L. Ry., 161 Tenn. 691, 34 S.W.2d 210, 1930 Tenn. LEXIS 56 (1931); Whitson v. Tennessee C. R. Co., 163 Tenn. 35, 40 S.W.2d 396, 1930 Tenn. LEXIS 136 (1931).

50-6-222. Preference or priority of rights of compensation.

All rights of compensation granted by this chapter shall have the same preference or priority for the whole thereof against the assets of the employer as is allowed by law for any unpaid wages for labor.

Acts 1919, ch. 123, § 17; Shan. Supp., § 3608a166; Code 1932, § 6868; Acts 1972, ch. 699, § 4; T.C.A. (orig. ed.), § 50-1015.

Cross-References. Inapplicability to claims filed against state, § 9-8-307.

Law Reviews.

Venue — Localizing Transitory Actions in Tennessee Civil Proceedings, 35 Tenn. L. Rev. 520 (1968).

NOTES TO DECISIONS

1. Nature and Construction.

Liens in favor of compensation claimants against insolvent employer are not secret liens since reports of accidents are exacted and recorded by department of labor, and there is no need to construe this section narrowly by way of protection of those extending credit to the employer or those protecting the employer's assets. Pennington v. Webb-Hammock Coal Co., 182 Tenn. 33, 184 S.W.2d 47, 1944 Tenn. LEXIS 298 (1944).

2. Priority of Claims.

Lien of workers injured after the recording of a deed of trust was junior to that of the holder of the deed of trust. Francis v. Williams Coal Mining Co., 178 Tenn. 203, 156 S.W.2d 434, 1941 Tenn. LEXIS 46 (1941).

Compensation claims asserted before distribution of assets of insolvent employer are entitled to priority over general creditors of employer if claims are not barred by limitation period set forth in § 50-6-224, and statement in Francis v. Williams Coal Mining Co., 178 Tenn. 203, 156 S.W.2d 434, 1941 Tenn. LEXIS 46 (1941), that under § 66-13-102 priority would be denied compensation claims where suit was not brought within three months from the date of injury is retracted since statement was not necessary to decision in quoted case. Pennington v. Webb-Hammock Coal Co., 182 Tenn. 33, 184 S.W.2d 47, 1944 Tenn. LEXIS 298 (1944).

Within whatever time compensation claims are permissibly sued upon, the whole of such claims are entitled to priority of payment out of the employer's assets as against the employer's general creditors. Pennington v. Webb-Hammock Coal Co., 182 Tenn. 33, 184 S.W.2d 47, 1944 Tenn. LEXIS 298 (1944).

General creditors of the employer and purchasers of the employer are not excepted from the priority of the workers' compensation liens under the Workers' Compensation Law, but a creditor secured by a registered mortgage valid as to general creditors is given preference over such liens. McKee v. Dever Bros., 39 Tenn. App. 411, 284 S.W.2d 305, 1955 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1955).

Holder of chattel mortgage, who at the time loan was made and mortgage taken and registered had no knowledge actual or constructive that employee of mortgagor had claim under Workers' Compensation Law, was entitled to priority over employee's claim. McKee v. Dever Bros., 39 Tenn. App. 411, 284 S.W.2d 305, 1955 Tenn. App. LEXIS 77 (Tenn. Ct. App. 1955).

50-6-223. Exemption and nonassignability of compensation claims — Exceptions to nonassignability.

  1. No claim for compensation under this chapter shall be assignable, and all compensation and claims for compensation shall be exempt from claims of creditors.
  2. Notwithstanding subsection (a), compensation made by periodic payments shall be subject to income assignment for payment of support as provided by title 36, chapter 5, part 5 and § 50-2-105.
  3. Notwithstanding subsection (a), the department of human services shall have a lien on any lump-sum settlements for the collection of current or overdue support as defined by § 36-5-113, and may enforce the lien as provided by title 36, chapter 5, part 9.

Acts 1919, ch. 123, § 17; Shan. Supp., § 3608a167; Code 1932, § 6869; T.C.A. (orig. ed.), § 50-1016; Acts 1991, ch. 224, § 1; 1998, ch. 1098, § 61.

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 32.

Law Reviews.

Exempt Property in Tennessee under the Bankruptcy Code (Thomas E. Ray), 18 No. 2 Tenn. B.J. 7 (1982).

NOTES TO DECISIONS

1. Constitutionality.

Constitutional prohibition against an act containing more than one subject was not violated in that compensation act, in addition to providing for the payment of compensation to injured employees, provided that the sums paid shall be exempt from the claims of the employee's creditors, the latter provision only rendering certain the provisions of the act. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

2. Purpose.

One purpose of the statute was to prevent assignments giving third persons a right of action against the employer and to prevent assignment in payment of antecedent debts. Gregg v. New Careyville Coal Co., 161 Tenn. 350, 31 S.W.2d 693, 1930 Tenn. LEXIS 11 (1930).

The compensation statute was designed to relieve society of an economic burden, and this section was intended to prevent diversion of the compensation to objects beyond the purposes of the statute by employee's assignment of claim so as to defeat the purpose of the statute. Gregg v. New Careyville Coal Co., 161 Tenn. 350, 31 S.W.2d 693, 1930 Tenn. LEXIS 11 (1930); Byrd v. Pioneer-Jellico Coal Co., 180 Tenn. 396, 175 S.W.2d 542, 1943 Tenn. LEXIS 34 (1943).

3. Construction.

The benefits and burdens of the compensation statute, arising as they do out of contract, this section ought not to be extended by construction beyond the objects sought to be accomplished. Gregg v. New Careyville Coal Co., 161 Tenn. 350, 31 S.W.2d 693, 1930 Tenn. LEXIS 11 (1930).

The words, “No claim for compensation under this law shall be assignable” should be taken to mean no claim for compensation arising under or based on the provisions of this act shall be assignable. Prime v. Dunaway, 164 Tenn. 396, 50 S.W.2d 223, 1931 Tenn. LEXIS 40 (1932).

The general language of this section, “all compensation and claims therefor shall be exempt from claims of creditors,” must be construed to apply to the “claims therefor” of dependents of deceased employee. Byrd v. Pioneer-Jellico Coal Co., 180 Tenn. 396, 175 S.W.2d 542, 1943 Tenn. LEXIS 34 (1943).

The clause “exempt from claims of creditors” as used in T.C.A. § 50-6-223 secures the worker's award from attachment, levy, or garnishment by creditors; however, neither subsection (b) nor subsection (c) of that section prohibits consideration of workers' compensation benefits as income. Hobbs v. Hobbs, 27 S.W.3d 900, 2000 Tenn. LEXIS 467 (Tenn. 2000).

4. Nonassignability.

Under this section, an employee may not assign any portion of his claim even to his employer in payment of antecedent debts. Gregg v. New Careyville Coal Co., 161 Tenn. 350, 31 S.W.2d 693, 1930 Tenn. LEXIS 11 (1930).

An agreement of employer to advance, pending settlement, cannot support a deduction for an antecedent debt due employer although advancements are also made. Gregg v. New Careyville Coal Co., 161 Tenn. 350, 31 S.W.2d 693, 1930 Tenn. LEXIS 11 (1930).

When employer takes out liability insurance, the right of dependents to benefits of this insurance is vested, at least to the extent that employee cannot dispose of such benefits, so as to deprive dependents thereof. Kennedy v. Columbian Casualty Co., 163 Tenn. 312, 43 S.W.2d 201, 1931 Tenn. LEXIS 118 (1931).

5. —Claims Reduced to Judgment.

Claims for compensation are not assignable even after same have been reduced to judgment. Prime v. Dunaway, 164 Tenn. 396, 50 S.W.2d 223, 1931 Tenn. LEXIS 40 (1932).

Where worker assigned portion of compensation award to attorney in return for services of attorney in defending such worker in criminal case, with both parties to the agreement acting in good faith and attorney performed such legal services in reliance on the assignment, worker was not entitled to avoid payment to attorney upon contention that no claim for compensation is assignable. Rhea v. Park, 211 Tenn. 589, 366 S.W.2d 765, 1963 Tenn. LEXIS 382 (1963).

Wife of worker had no vested interest or right in money paid into court in response to a compensation award to her husband and could not dispute validity of assignment of award by husband for legal services to be rendered. Rhea v. Park, 211 Tenn. 589, 366 S.W.2d 765, 1963 Tenn. LEXIS 382 (1963).

6. Advancement on Claim by Employer.

The statute does not forbid the employer and employee from contracting in good faith for advancement by the employer to the employee either in money or merchandise, to be deducted from the amount of compensation when awarded. Gregg v. New Careyville Coal Co., 161 Tenn. 350, 31 S.W.2d 693, 1930 Tenn. LEXIS 11 (1930).

7. Exemption.

This statute, exempting compensation from claims of creditors, means creditors both of the employee and his dependents. Poore v. Bowlin, 150 Tenn. 412, 265 S.W. 671, 1924 Tenn. LEXIS 15 (1924).

An exemption is a right given by law to the debtor to retain property as against his creditors, and exemption statutes, within the rule that nonresidents are not entitled to the benefit thereof, are limited to rights arising directly from the law, and not out of contract. Poore v. Bowlin, 150 Tenn. 412, 265 S.W. 671, 1924 Tenn. LEXIS 15 (1924).

This statute, properly speaking, is not an exemption statute within the rule that nonresidents are not entitled to the benefit of exemption statutes. Poore v. Bowlin, 150 Tenn. 412, 265 S.W. 671, 1924 Tenn. LEXIS 15 (1924).

8. —Compensation Accrued but Unpaid at Employee's Death.

That portion of an award made to an employee with dependents, which had accrued, and was due and unpaid at his death, should be exempt from claims of creditors and passes to his widow and children exempt from claims of creditors. Byrd v. Pioneer-Jellico Coal Co., 180 Tenn. 396, 175 S.W.2d 542, 1943 Tenn. LEXIS 34 (1943).

9. Bankruptcy Proceedings.

If the accrued but unpaid balance of a compensation award, upon the death of an employee could be seized by creditors, and his dependent widow and children be deprived of it, the purposes of the statute would be defeated. Byrd v. Pioneer-Jellico Coal Co., 180 Tenn. 396, 175 S.W.2d 542, 1943 Tenn. LEXIS 34 (1943).

In bankruptcy proceeding, debtors' workers' compensation settlement awards are property of an estate that has been exempted under T.C.A. § 50-6-223, but which are not excluded under 11 U.S.C. § 541(b), (c), or (d); such awards, although exempt under state law, are disposable income as defined by 11 U.S.C. § 1325(b)(2). In re Minor, 177 B.R. 576, 1995 Bankr. LEXIS 166 (Bankr. E.D. Tenn. 1995).

10. Child Support.

In compliance with the specific provisions of subsection (b) of T.C.A. § 50-6-223, the trial judge had the discretion to assign a portion of a temporary total disability award to fulfill a child support obligation; similarly, under subsection (c) of T.C.A. § 50-6-223, the court could assign a part of a lump sum settlement to satisfy a judgment for arrearage in child support payments. Gonsalves v. Roberts, 905 S.W.2d 931, 1995 Tenn. LEXIS 457 (Tenn. 1995).

Lump sum awards of workers' compensation must be used to compute gross income under the child support guidelines. Hobbs v. Hobbs, 27 S.W.3d 900, 2000 Tenn. LEXIS 467 (Tenn. 2000).

Collateral References.

Assignment or release of claim under compensation acts, constitutionality of prohibition of. 47 A.L.R. 799.

Validity, construction, and effect of statutory exemptions of proceeds of workers' compensation awards. 48 A.L.R.5th 473.

50-6-224. Limitation of actions. [Applicable to injuries occurring prior to July 1, 2014.]

  1. The time within which the following acts shall be performed under this chapter shall be limited to the following periods, respectively:
    1. Actions or proceedings by an injured employee to determine or recover compensation: one (1) year after the occurrence of the injury, except as provided in § 50-6-203;
    2. Actions or proceedings by dependents to determine or recover compensation: one (1) year after the date of notice in writing given by the employer to the division of workers' compensation, stating the employer's willingness to pay compensation when it is shown that the death is one for which compensation is payable. In case the deceased was a native of a foreign country and leaves no known dependent or dependents within the United States, it shall be the duty of the commissioner to give written notice forthwith of the death to the consul or other representative of the foreign country residing within the state;
    3. Proceedings to obtain judgment in case of default of employer for thirty (30) days to pay any compensation due under any settlement or determination: one (1) year after the default; and
    4. In case of physical or mental incapacity, other than minority, of the injured person or the injured person's dependents to perform or cause to be performed any act required within the time in this section specified: the period of limitation in those cases shall be extended for one (1) year from the date when the incapacity ceases.
  2. This section applies only to injuries that arise on or before December 31, 2004, and shall have no applicability to injuries that arise on or after January 1, 2005.

Acts 1919, ch. 123, § 31; Shan. Supp., § 3608a182; Acts 1927, ch. 40, § 4; Code 1932, § 6884; Acts 1947, ch. 139, § 11; C. Supp. 1950, § 6884; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1017; Acts 1999, ch. 520, § 41; 2004, ch. 962, § 15.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2013, ch. 289, § 59, effective July 1, 2014, amends § 50-6-224 by deleting it in its entirety.  However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law.  Thus, this section remains in effect as to injuries occurring prior to July 1, 2014.

Cross-References. Inapplicability to claims filed against state, § 9-8-307.

Limitation of time, § 50-6-203.

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 48.

Law Reviews.

Workmen's Compensation — Statute of Limitations for Instituting Action, 24 Tenn. L. Rev. 1072 (1956).

NOTES TO DECISIONS

1. Validity.

This statute is not invalid as undertaking to make an election for and a binding contract upon a minor employee when, by reason of such minority, he is unable to make such election or contract, since the statute makes him sui juris as to power of election for purpose of the statute. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

Subdivision (2) is not unconstitutional as providing for the computation of the period of limitation within which suit may be brought, from the date of an event uncertain in its nature and dependent upon the will of the debtor for its occurrence. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

2. Nature and Effect.

Limitation of time in which action under this statute must be brought indicates that general assembly could not have intended accidental injuries to include diseases developing by gradual process. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931); but see part 3 of this chapter.

This section is treated as a statute of limitations affecting the remedy and not as a statute of proscription. Rye v. Dupont Rayon Co., 163 Tenn. 95, 40 S.W.2d 1041, 1931 Tenn. LEXIS 92 (1931).

Whether plaintiff's action for workers' compensation was barred by Tennessee's one year statute of limitations was an issue of law. Whitehead v. Aluminum Co., 239 F. Supp. 415, 1965 U.S. Dist. LEXIS 7060 (E.D. Tenn. 1965), aff'd, Whitehead v. Aluminum Co. of America, 361 F.2d 620, 1966 U.S. App. LEXIS 5862 (6th Cir. Tenn. 1966).

3. Application.

The statute of limitations as set forth in the Workers' Compensation Law is applicable to all benefits under the law, including claims against the second injury fund. Travelers Ins. Co. v. Austin, 521 S.W.2d 783, 1975 Tenn. LEXIS 695 (Tenn. 1975).

By placing the second injury fund into the Workers' Compensation Law and remaining silent as to the time in which a claim against the fund is to be filed, while at the same time expressing the intent that the claim against the fund is to be tried with the employee's claim against his employer, the general assembly intended the time limitation on filing a workers' compensation claim against the employer to be equally applicable to a claim against the second injury fund. Travelers Ins. Co. v. Austin, 521 S.W.2d 783, 1975 Tenn. LEXIS 695 (Tenn. 1975).

4. Relation to § 50-6-203.

Words “except as provided in § 50-6-203” at end of subdivision (1) did not appear until 1947 amendment.

If there is an irreconcilable conflict between this section and § 50-6-203, the more detailed provisions of this section must control and limit the general and broad provisions of § 50-6-203. Southern R. Co. v. Grigsby, 155 Tenn. 285, 292 S.W. 3, 1926 Tenn. LEXIS 46 (1927).

The general limitation in § 50-6-203 of one year following the accident and repeated in subdivision (1) is construed to be subject to subdivision (2) as an exception so that the period of limitation to dependents begins to run from the date on which the employer files with the division (now bureau) of workers' compensation a notice of willingness. Southern R. Co. v. Grigsby, 155 Tenn. 285, 292 S.W. 3, 1926 Tenn. LEXIS 46 (1927); Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931); Cooper v. Blue Diamond Coal Co., 165 Tenn. 315, 54 S.W.2d 711, 1932 Tenn. LEXIS 53 (1932).

There is no repugnancy between this section and § 50-6-203, and both may be enforced. Minor v. E. I. Du Pont De Nemours & Co., 164 Tenn. 226, 47 S.W.2d 748, 1931 Tenn. LEXIS 26 (1932).

Section 50-6-203 is controlled and limited by this section since latter provision is specific and in more detail in its treatment of limitation of actions. Ogle v. Tennessee Eastman Corp., 185 Tenn. 527, 206 S.W.2d 909, 1947 Tenn. LEXIS 366 (1947); Trobaugh v. Harper, 191 Tenn. 409, 234 S.W.2d 829, 1950 Tenn. LEXIS 451 (1950).

The difference between § 50-6-203 and this section has no application to a case where the petitioner suffered immediate disability at the time of the accident so that the date of the accident and the date of the injury were one and the same. Bradshaw v. Claridy, 213 Tenn. 297, 375 S.W.2d 852, 1964 Tenn. LEXIS 390 (1964).

This section and § 50-6-203 must be construed together and must be liberally construed so that the limitation of one year begins to run from the time of commencement of loss rather than the time of the accident. Imperial Shirt Corp. v. Jenkins, 217 Tenn. 602, 399 S.W.2d 757, 1966 Tenn. LEXIS 615, 1966 Tenn. LEXIS 658 (1966).

The apparent conflict between § 50-6-203, which provides in part that the statute of limitations begins to run from the date of the accident and this section, which provides that the statute of limitations begins to run from the date of the injury, was resolved by the ruling in Griffitts v. Humphrey, 199 Tenn. 528, 288 S.W.2d 1, 1955 Tenn. LEXIS 309 (1955), that the statute begins to run on the date the disability manifests itself, disability being used synonymously with injury, and from this ruling is derived the general principle that the running of the statute of limitations is suspended until, by reasonable care and diligence, it is discoverable and apparent that a compensable injury has been sustained. Reed v. Genesco, Inc., 512 S.W.2d 1, 1974 Tenn. LEXIS 474 (Tenn. 1974).

Limitations period for workers'  compensation cases pursuant to T.C.A. § 50-6-203(b)(1) does not commence until a plaintiff discovers or, in the exercise of reasonable diligence, should have discovered that he or she has a claim; the General Assembly's restriction of T.C.A. § 50-6-224(a)(1) to injuries that arise on or before December 31, 2004, clearly indicates its intent to commence the statute of limitations in workers'  compensation cases at the time of the accident resulting in injury in cases in which the injury arises on or after January 1, 2005, as provided in T.C.A. § 50-6-203(b)(1). Gerdau Ameristeel, Inc. v. Ratliff, 368 S.W.3d 503, 2012 Tenn. LEXIS 401 (Tenn. June 7, 2012).

5. Consistency of Subdivisions.

There is no inconsistency between subdivisions (1) and (2). Southern R. Co. v. Grigsby, 155 Tenn. 285, 292 S.W. 3, 1926 Tenn. LEXIS 46 (1927).

6. Effect of Other Limitations.

Section 28-3-109, providing six year statute of limitations for suits on contracts not otherwise covered, was inapplicable to a proceeding for further compensation under Workers' Compensation Law, in view of the limitations provided in the compensation statute. Phillips v. Memphis Furniture Mfg. Co., 168 Tenn. 481, 79 S.W.2d 576, 1934 Tenn. LEXIS 80 (1935).

7. Time from Which Statute Runs.

The statute of limitations commences to run from the occurrence of the injury and not from the occurrence of the accident. Graham v. J. W. Wells Brick Co., 150 Tenn. 660, 266 S.W. 770, 1924 Tenn. LEXIS 35 (1924); Ogle v. Tennessee Eastman Corp., 185 Tenn. 527, 206 S.W.2d 909, 1947 Tenn. LEXIS 366 (1947); Burcham v. Carbide & Carbon Chemicals Corp., 188 Tenn. 592, 221 S.W.2d 888, 1949 Tenn. LEXIS 379 (1949); Griffitts v. Humphrey, 199 Tenn. 528, 288 S.W.2d 1, 1955 Tenn. LEXIS 309 (1955).

Claimant whose eyes became irritated and inflamed as result of gas and fumes from an explosion on July 1, 1945, and who was placed under treatment until February 10, 1947, when he was advised by company physician that he had lost the sight in one eye and who filed claim for compensation within 30 days thereafter, was not barred from relief on the ground that period of limitations had expired, since limitation period did not start to run until February 10, 1947, when he was advised of his disability. Ogle v. Tennessee Eastman Corp., 185 Tenn. 527, 206 S.W.2d 909, 1947 Tenn. LEXIS 366 (1947).

Where phlebitis resulted from accidental blow to stomach on June 15, 1949, which gradually grew worse, and petitioner fell when her leg collapsed under her on December 14, 1951, but suit for compensation was not filed until after second accident, the claim could not be based on first injury as action would be barred by one year limitation period. Workman v. General Shoe Corp., 196 Tenn. 290, 265 S.W.2d 883, 1954 Tenn. LEXIS 377 (1954).

Where employee knew of injuries to his back within four days after he was injured, although he was not X-rayed until about two and one half years after the injury, suit commenced nearly three years after the date of the injury was barred by statute of limitations. Bradford v. Dixie Mercerizing Co., 199 Tenn. 170, 285 S.W.2d 136, 1955 Tenn. LEXIS 442 (1955).

Where workers' compensation suit was instituted within one year of the resulting disability but not within one year from the time of the accident, the suit was not barred by the statute of limitations. Griffitts v. Humphrey, 199 Tenn. 528, 288 S.W.2d 1, 1955 Tenn. LEXIS 309 (1955).

Where evidence was to the effect that condition of employee grew progressively worse from the time of injury until time suit for compensation was instituted three and one half years thereafter, action of chancellor in sustaining plea of statute of limitations was proper and statute was not suspended pending an examination and final report by medical experts as to the percentage of injured employee's disability. Pittman v. City Stores, Inc., 204 Tenn. 650, 325 S.W.2d 249, 1959 Tenn. LEXIS 323 (1959).

Where employee had headaches after injury but did not suspect that such headaches were the result of such injury until after he had an eye examination and found that there was nothing wrong with his eyes, the period of limitations did not begin to run until such time. Mathes v. Blue Ridge Glass Corp., 206 Tenn. 19, 330 S.W.2d 342, 1959 Tenn. LEXIS 418 (1959).

Where disability to left eye resulted from two injuries occurring while employee was employed by different employers but injury did not become apparent until more than one year after first injury, action against first employer was not barred by the statute. J. E. Greene Co. v. Bennett, 207 Tenn. 635, 341 S.W.2d 751, 1960 Tenn. LEXIS 503 (1960), overruled in part, Indiana Lumberman's Mut. Ins. Co. v. Ray, 596 S.W.2d 816, 1980 Tenn. LEXIS 434 (Tenn. 1980).

Where at time of accident employee knew that he had suffered injury, statute of limitations commenced to run from date of accident and not date when his injuries caused him to be disabled to such extent that he was unable to carry on his regular employment. Wilson v. Vestal Lumber & Mfg. Co., 214 Tenn. 157, 378 S.W.2d 780, 1964 Tenn. LEXIS 459 (1964).

Where, after injury to back, such injury was treated at various times by heat treatments and otherwise, and employee continued working but the pain became progressively greater and after a period of two years the condition was diagnosed as a ruptured disc the period of limitation for such injury began at the time of such diagnosis and not the time of the injury. Imperial Shirt Corp. v. Jenkins, 217 Tenn. 602, 399 S.W.2d 757, 1966 Tenn. LEXIS 615, 1966 Tenn. LEXIS 658 (1966).

The statute of limitations commences to run from the occurrence of the injury. Watkins v. Home Indem. Co., 219 Tenn. 276, 409 S.W.2d 359, 1966 Tenn. LEXIS 527 (1966).

Where nurse who hurt her back, turning patients in bed on January 6, 1965, and consulted a physician on January 15, 1965, and in view of her training and experience should have been aware at that time that she had suffered a compensable injury, suit filed on February 21, 1966 would be barred. Watkins v. Home Indem. Co., 219 Tenn. 276, 409 S.W.2d 359, 1966 Tenn. LEXIS 527 (1966).

Where plaintiff suffered ruptured disc two years previously but was never advised as to the nature of his injury, and the doctor only advised heat treatments and he worked until after aggravation of the injury he consulted another doctor, who advised him of the nature of the injury, the limitation period began to run from the latter time. Ward v. Consolidation Coal Co., 406 F.2d 676, 1969 U.S. App. LEXIS 9054 (6th Cir. Tenn. 1969).

Where employee began suit under Workers' Compensation Law within one year after informed by doctor he was under disability, his suit was not barred by statute of limitations. Lawson v. Employers Ins. of Wausau, 330 F. Supp. 321, 1971 U.S. Dist. LEXIS 15071 (E.D. Tenn. 1971); Murray Ohio Mfg. Co. v. Vines, 498 S.W.2d 897, 1973 Tenn. LEXIS 463 (Tenn. 1973).

Where an employee sustained an eye injury resulting in immediate pain, impairment of vision and irritation, and three months later when he consulted a physician was advised that he had suffered a detached retina, the statute of limitations began to run, at the latest, from the date of this advice from the physician. Reed v. Genesco, Inc., 512 S.W.2d 1, 1974 Tenn. LEXIS 474 (Tenn. 1974).

The statute of limitations begins to run from the date the disability manifests itself, disability being used synonymously with injury, and the running of the statute is suspended until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained. Reed v. Genesco, Inc., 512 S.W.2d 1, 1974 Tenn. LEXIS 474 (Tenn. 1974).

Where claimant, after an injury, suffered severe pain requiring home remedies from the time of the injury, but lost no time from work, and did not file suit until 22 months afterward, after learning she had suffered a cervical spine injury, the court held that the suit was barred by the statute of limitations under this section and § 50-6-103, since the running of the statute is tolled only until, by reasonable care and diligence, a claimant should have known or discovered that a compensable injury had been sustained. Taylor v. Clayton Mobile Homes, Inc., 516 S.W.2d 72, 1974 Tenn. LEXIS 440 (Tenn. 1974).

Period of limitation on claim for compensation for herniated disc ran from date of diagnosis after employee had previously suffered much pain and was treated by several physicians, none of whom had advised her that she suffered from a herniated disc or other permanent disability. Union Carbide Corp., Food Products Div. v. Cannon, 523 S.W.2d 360, 1975 Tenn. LEXIS 603 (Tenn. 1975).

It is the date of the last voluntary payment of medical bills rather than the date of last medical treatment which starts the running of the statute of limitations. Union Carbide Corp., Food Products Div. v. Cannon, 523 S.W.2d 360, 1975 Tenn. LEXIS 603 (Tenn. 1975).

The running of the statute of limitations is suspended until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained. Union Carbide Corp., Food Products Div. v. Cannon, 523 S.W.2d 360, 1975 Tenn. LEXIS 603 (Tenn. 1975).

Where rock quarry worker was granted disability retirement on basis of hypertension and arthritis and at time of retirement had been advised that his difficulty in breathing was due to bronchitis, and where there was no evidence that at that time he knew he was suffering from an occupational disease, period of limitation on claim for compensation for silicosis did not commence to run until he was finally so diagnosed and advised. Cash v. Ideal Cement Co., 524 S.W.2d 644, 1975 Tenn. LEXIS 671 (Tenn. 1975).

This section is an “injury” type of statute rather than an “accident” type of statute so that the running of the period of limitation is suspended until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained. Cash v. Ideal Cement Co., 524 S.W.2d 644, 1975 Tenn. LEXIS 671 (Tenn. 1975).

Where employee and his doctor thought he had a complete recovery from injury to his eye in June 1975, and that doctor and a specialist found nothing to reverse that opinion on January 5, 1976, and January 14, 1976, respectively, an action filed on January 11, 1977, was within the statute. Davidson & Graham Constr. Co. v. McKee, 562 S.W.2d 426, 1978 Tenn. LEXIS 589 (Tenn. 1978).

Evidence supported a determination that employee had no reason to know that she had sustained a compensable injury until two years after the injury occurred. Hibner v. St. Paul Mercury Ins. Co., 619 S.W.2d 109, 1981 Tenn. LEXIS 462 (Tenn. 1981).

Where plaintiff was injured on July 30 or 31, 1979, and up until the second week of November, 1979, when her back and leg pain began to increase, her pain had lessened due to shots and medication prescribed by her physician to the extent that plaintiff was able to return to work and believed that her condition had improved, and plaintiff did not file suit until August 25, 1980, it could not be said that there was no genuine issue of material fact regarding the bar of the one-year statute of limitations, or that defendant was entitled to judgment as a matter of law. Jones v. Home Indem. Ins. Co., 651 S.W.2d 213, 1983 Tenn. LEXIS 661 (Tenn. 1983).

An action against the Second Injury Fund under T.C.A. § 50-6-208(a) must be commenced within one year after the occurrence of the injury, as required by paragraph (1) of T.C.A. § 50-6-224 or, if the employer has made voluntary payment of compensation benefits within that period, within one year after the cessation of benefits as required by T.C.A. § 50-6-203. Pearson v. Day Int'l, 951 S.W.2d 375, 1996 Tenn. LEXIS 464 (Tenn. Special Workers' Comp. App. Panel 1996).

8. —Occupational Diseases.

The established rule is that the statute of limitations does not begin to run in cases of occupational disease until the disease manifests itself in an incapacity for work by the employee, and the employee acquires actual or constructive knowledge from a medical expert that he in fact suffers from the occupational disease and that it arose out of and in the course of his employment. McKinney v. Feldspar Corp., 612 S.W.2d 157, 1981 Tenn. LEXIS 405 (Tenn. 1981).

9. —Tolling of Statute.

Where an employer makes a voluntary payment of medical bills of an injured employee, this tolls the running of the statute of limitations. Brewer v. Pocahontas Fuel Co., 221 Tenn. 130, 425 S.W.2d 582, 1968 Tenn. LEXIS 452 (1968).

Although payment to a physician by an employer solely for examination of the nature and extent of an employee's injuries will not operate to toll the statute of limitations, where the payment made for that purpose included also payment for medical services rendered for the benefit of the employee, this amounted to a payment of compensation and tolled the running of the statute to the date of the last payment made, although not to the date of the last treatment given subsequent to the payment. Reed v. Genesco, Inc., 512 S.W.2d 1, 1974 Tenn. LEXIS 474 (Tenn. 1974).

Voluntary payments of compensation by the employer or the insurance carrier tolls the statute of limitations. Union Carbide Corp., Food Products Div. v. Cannon, 523 S.W.2d 360, 1975 Tenn. LEXIS 603 (Tenn. 1975).

Payment of medical bills by employer's medical and hospitalization insurer was not a voluntary payment of compensation so as to toll the running of the statute of limitations on compensation claim. Union Carbide Corp., Food Products Div. v. Cannon, 523 S.W.2d 360, 1975 Tenn. LEXIS 603 (Tenn. 1975).

Medical payments made more than one year after the statute of limitations commenced to run could not toll the statute. Union Carbide Corp., Food Products Div. v. Cannon, 523 S.W.2d 360, 1975 Tenn. LEXIS 603 (Tenn. 1975).

Payment of bills of physician who examined employee for purpose of ascertaining whether she was able to return to work did not constitute payment of compensation so as to toll running of statute of limitations. Union Carbide Corp., Food Products Div. v. Cannon, 523 S.W.2d 360, 1975 Tenn. LEXIS 603 (Tenn. 1975).

The special workers' compensation appeals panel concluded that, pursuant to T.C.A. § 50-6-224, the statute of limitations was suspended or tolled during the period of time between the request for assistance which amounted to a request for a benefit review conference, and the date the employee's claim was denied; therefore, the period for filing employee's suit for benefits was extended. Welsh v. Universal Fasteners, Inc., 51 S.W.3d 196, 2000 Tenn. LEXIS 659 (Tenn. 2000).

10. Proceedings for Readjustment of Compensation.

Where employer's petition for readjustment of compensation was pending when compensation due was defaulted, the employee's petition for execution and enforcement of compensation decree was not barred by the one year limitation. Butterbaugh v. Loew's, Inc., 168 Tenn. 284, 77 S.W.2d 644, 1934 Tenn. LEXIS 54, 96 A.L.R. 973 (1935).

The one year statute of limitations against compensation proceedings is not applicable to a proceeding for increase of compensation because of subsequent increase of incapacity of the applicant, resulting from the original injury, right to bring which was reserved in the judgment granting the original award. Phillips v. Memphis Furniture Mfg. Co., 168 Tenn. 481, 79 S.W.2d 576, 1934 Tenn. LEXIS 80 (1935).

11. Renewal of Dismissed Action.

Where over a year has elapsed, since insurer's notice, suit by employee's widow for compensation under this statute was barred, though a year has not elapsed since dismissal of common-law action for damages for negligence against employer, where the two suits are not based on the same cause of action, and the employer in suit first begun did nothing to mislead widow but pleaded application of compensation statute. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

The statute authorizing renewal of an action after dismissal on grounds not concluding the rights applies to compensation cases; so that a petition, filed within the required period, may be renewed within one year after its dismissal for inconclusive grounds. Rye v. Dupont Rayon Co., 163 Tenn. 95, 40 S.W.2d 1041, 1931 Tenn. LEXIS 92 (1931).

12. Refusal to Undergo Operation or Treatment.

Where trial court dismissed the petition of a worker for compensation upon the finding that the refusal of the worker to undergo an operation for hernia was unreasonable and the order dismissing the suit recited that “recovery should be denied until such time as petitioner would submit to said surgical operation to have said hernia repaired,” a second suit within one year after such dismissal but more than one year after the accident was not barred by the statute of limitations but fell within the clause of § 28-1-106, which provides that a new action may be brought within one year after an inconclusive judgment of dismissal. Blevins v. Pearson Hardwood Flooring Co., 176 Tenn. 606, 144 S.W.2d 781, 1940 Tenn. LEXIS 107 (1940).

Statute of limitations is not tolled by nonfraudulent action by employer's doctors in alleged failure to warn claimant of true conditions where he knows or should have known extent of predisposed injury after hospitalization but continues to work in pain in order to receive salary higher than workers' compensation. Johnson v. United States Fidelity & Guaranty Co., 126 F. Supp. 84, 1954 U.S. Dist. LEXIS 2448 (D. Tenn. 1954).

13. Acts of Employer or Employer's Representatives as Tolling Statute.

Petition for compensation for injured left eye filed more than two years after accident caused loss of right eye was not subject to demurrer on the ground that claim was barred by one year limitation period where petition alleged that servants of employer led her to believe that injury to left eye was not due to accident but by an hereditary cataract, and that she had no knowledge that injury was causally connected with accident. Watson v. Proctor & Gamble Defense Corp., 188 Tenn. 494, 221 S.W.2d 528, 1949 Tenn. LEXIS 365 (1949).

Where claimant is advised by employer's doctor that he has suffered no disability the period of limitations is tolled and does not start to run until he discovers that he has sustained a disability as the result of an accident. Burcham v. Carbide & Carbon Chemicals Corp., 188 Tenn. 592, 221 S.W.2d 888, 1949 Tenn. LEXIS 379 (1949).

Although payment to a physician by an employer solely for examination of the nature and extent of an employee's injuries will not operate to toll the statute of limitations, where the payment made for that purpose included also payment for medical services rendered for the benefit of the employee, this amounted to a payment of compensation and tolled the running of the statute to the date of the last payment made, although not to the date of the last treatment given subsequent to the payment. Reed v. Genesco, Inc., 512 S.W.2d 1, 1974 Tenn. LEXIS 474 (Tenn. 1974).

14. Estoppel of Insurer to Urge Bar.

Employer's insurer waived or estopped itself to rely on the one year statute or on the employee's failure to give his employer notice of accident within 30 days by its promise to employer to waive any question of failure to give notice and all technical questions in suit to determine whether injury was compensable, made to prevent cancellation of policy. Hartford Acci. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904, 1928 Tenn. LEXIS 76 (1929).

Where plaintiff was led to believe by the defendant insurance company that his claim would be honored, the doctrine of equitable estoppel was applied to prevent the insurance company from asserting the statute of limitations. Giles County Board of Education v. Hickman, 547 S.W.2d 944, 1977 Tenn. LEXIS 577 (Tenn. 1977).

15. Estoppel of Employer.

Where employer's agent induced employee to believe and rely on representations that employer would not plead statute of limitations, employer was estopped to plead the statute. American Mut. Liability Ins. Co. v. Baxter, 210 Tenn. 242, 357 S.W.2d 825, 1962 Tenn. LEXIS 429 (1962).

16. Right to Amend After Statutory Period.

In a proceeding begun by administrator of a deceased employee to recover compensation for his minor dependents, where after more than 12 months the administrator sought to sue as next friend for such dependents, the amendment, introducing no new cause of action, should have been allowed, there being no bar. Cooper v. Blue Diamond Coal Co., 165 Tenn. 315, 54 S.W.2d 711, 1932 Tenn. LEXIS 53 (1932).

17. Actions or Proceedings of Dependents.

18. —Separate Suits by Dependents.

Where the mother of a deceased employee litigated the question of the employer's liability to her as a dependent of the deceased, and obtained a judgment for compensation, with knowledge of the claim of her grandniece as a dependent of decedent and to whom she stood in loco parentis, a subsequent suit by the grandniece for compensation as a dependent was properly dismissed, since separate suits by dependents are not contemplated by the statute. Berry v. Kroger Grocery & Baking Co., 169 Tenn. 519, 89 S.W.2d 344, 1935 Tenn. LEXIS 78 (1936).

19. —Right of Employer to Invoke Statute After Notice of Willingness to Pay.

After giving notice of the employer's willingness to pay compensation, its right to invoke the statutory limitation is in no way dependent on any action on the part of the division of workers' compensation. Berry v. Kroger Grocery & Baking Co., 169 Tenn. 519, 89 S.W.2d 344, 1935 Tenn. LEXIS 78 (1936).

20. —Failure to File Notice — Effect.

In order to start one year statute of limitations of Tennessee running it is necessary that the employer notify the bureau of workshop and factory inspection of the accident and express willingness to pay compensation when and if it is shown that the injury is covered by workers' compensation. Whitehead v. Aluminum Co., 239 F. Supp. 415, 1965 U.S. Dist. LEXIS 7060 (E.D. Tenn. 1965), aff'd, Whitehead v. Aluminum Co. of America, 361 F.2d 620, 1966 U.S. App. LEXIS 5862 (6th Cir. Tenn. 1966).

21. —Sufficiency of Notice.

Notice under subdivision (2) need not refer by name to the dependents of the deceased worker. They may be unknown to the employer. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

Notice signed by one as “adjuster” and written on printed letterhead of claim department of insurer shows on its face that it was filed by the adjuster as agent of the insurer and as the act of the insurer. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

Where the employer, John Oman, Jr., had previously filed a report of the accident with the department, reference in the notice under subdivision (2) to the case of “John Oman, Jr., — Joe Delius” was a clear designation of the case in which the notice was filed. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

Reference in the notice to subdivision (1) instead of subdivision (2), being an obvious clerical error since no such notice could be applicable to subdivision (1), will not destroy the efficacy of the notice. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

Employer who wrote division of workers' compensation through its insurer that it had offered settlement to dependent was a sufficient notice, as it expressed willingness to pay compensation though dependent was not identified. Berry v. Kroger Grocery & Baking Co., 169 Tenn. 519, 89 S.W.2d 344, 1935 Tenn. LEXIS 78 (1936).

22. —Notice by Insurer.

In view of the definition of employer in § 50-6-102 as including his insurer, notice by employer's insurer, otherwise sufficient, will satisfy the requirements of subdivision (2). Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

23. Proceedings Upon Default of Payments Under Settlement or Determination.

An action by employee for additional compensation brought within one year after employer's default was not barred by employee's settlement with an agent of employer's insurance company which was not approved by the circuit court. Vester Gas Range & Mfg. Co. v. Leonard, 148 Tenn. 665, 257 S.W. 395, 1923 Tenn. LEXIS 53 (1923).

A petition filed by employee for enforcement of former court order decreeing compensation was not a “proceeding to obtain judgment.” Butterbaugh v. Loew's, Inc., 168 Tenn. 284, 77 S.W.2d 644, 1934 Tenn. LEXIS 54, 96 A.L.R. 973 (1935).

Payment of compensation and medical bills for hernia occurring on September 12, 1930, and for recurrence of hernia on May 20, 1932, did not estop employer from pleading one year statute of limitations as to original injury where suit for compensation was brought April 11, 1933, as action of employer was not a recognition of any liability beyond that assured and did not amount to a new promise so as to prevent the running of the statute. Gaines v. Du Pont Rayon Co., 168 Tenn. 361, 79 S.W.2d 40, 1934 Tenn. LEXIS 65 (1935).

Agreement between insurance carrier and injured worker as to the payment of compensation which was not approved by the court was not binding on the insurer, employer, nor employee but was sufficient to prevent the running of the statute of limitations until default of such settlement or determination. Moore v. Hines, 170 Tenn. 456, 95 S.W.2d 928, 1936 Tenn. LEXIS 15 (1936).

In order to render this section applicable, there must have been a prior settlement or determination between the employee and the employer, whereby an obligation to pay further compensation to the employee was assumed. Klinke Bros. Dairy Co. v. Maharrey, 171 Tenn. 397, 104 S.W.2d 418, 1937 Tenn. LEXIS 118 (1937).

Agreement between the employer's insurer and injured employee not approved by the court to the effect that certain compensation previously paid employee was in full and final settlement of employee's claim would not have been sufficient to bar employee's claim within the period of one year following the injury but was sufficient to refute any claim that there was any settlement or determination between the employee and the employer or insurer whereby any obligation to pay future compensation was assumed and so there could have been no default under subdivision (3). Klinke Bros. Dairy Co. v. Maharrey, 171 Tenn. 397, 104 S.W.2d 418, 1937 Tenn. LEXIS 118 (1937).

Where a written settlement was made between the widow of a deceased employee and the employer, and periodical payments were made to her up to a date within less than a year of the time in which she filed an intervening petition in general creditors' proceedings against employer, the settlement, although not approved by the court, amounted to a new promise on the part of the employer, and the 12 months' statute did not begin to run against the widow until payments due to her ceased and the contract of settlement was breached. Pennington v. Webb-Hammock Coal Co., 182 Tenn. 33, 184 S.W.2d 47, 1944 Tenn. LEXIS 298 (1944).

Voluntary payment of medical expenses by insurer while claimant was undergoing medical treatment did not toll limitation period where there was no agreement between the parties concerning amount of compensation payable. Stephens v. American Mut. Liability Ins. Co., 188 Tenn. 560, 221 S.W.2d 803, 1949 Tenn. LEXIS 374 (1949).

Voluntary payment of compensation for period of time following medical examinations did not toll limitation period where there was no agreement between parties as to payment of compensation. White v. Travelers Ins. Co., 188 Tenn. 651, 222 S.W.2d 1, 1949 Tenn. LEXIS 385 (1949).

Suit for compensation was barred where it was filed 15 months after lump settlement was paid. Trobaugh v. Harper, 191 Tenn. 409, 234 S.W.2d 829, 1950 Tenn. LEXIS 451 (1950).

24. Suit After Settlement Agreement Carried Out.

Suit filed over two years after accident for compensation for injured left eye was barred though filed within one year after last payment of compensation under agreement for payment of compensation for loss of right eye where there was no default and compensation agreement was carried out. Watson v. Proctor & Gamble Defense Corp., 188 Tenn. 494, 221 S.W.2d 528, 1949 Tenn. LEXIS 365 (1949).

Where compensation claim has been fully paid, a reopening of such claim cannot be had under this section because of an increase in incapacity, the provision providing for bringing an action within one year after occurrence of injury having no application, but such reopening must be made under § 50-6-231. American Snuff Co. v. Helms, 201 Tenn. 622, 301 S.W.2d 348, 1957 Tenn. LEXIS 342 (1957).

25. Void Remarriage of Widow — Suit for Compensation.

Where widow remarried and employer stopped payment of compensation, a suit filed three years later for recovery of compensation was barred though remarriage of widow was void. Oliver v. Perkins Oil Co., 168 Tenn. 278, 77 S.W.2d 454, 1934 Tenn. LEXIS 52 (1935).

26. Physical or Mental Incapacity.

Since § 50-6-102 expressly includes a minor within the definition of an employee and this section expressly excludes minors from those entitled to extension of the statute of limitations for reasons of physical or mental incapacity to assert their rights, a minor is subject to the one year statute of limitations with reference to making his claim under the Workers' Compensation Law. Franse v. Knox Porcelain Corp., 171 Tenn. 49, 100 S.W.2d 647, 1936 Tenn. LEXIS 59 (1937).

There is nothing in subdivision (4) limiting the incapacity to one continuous from the date of the accident. McBrayer v. Dixie Mercerizing Co., 176 Tenn. 560, 144 S.W.2d 764, 1940 Tenn. LEXIS 101 (1940).

Subdivision (4) is an exception to § 50-6-203. McBrayer v. Dixie Mercerizing Co., 176 Tenn. 560, 144 S.W.2d 764, 1940 Tenn. LEXIS 101 (1940).

Where injured employee's petition for compensation alleged that notice of the injury was given within 30 days after the discovery of the injury although several months after the accident and further that from the date of the notice until the date of the filing of the petition she “had been continually confined to her bed and physically unable to look after and manage her affairs and her disability was such that she was physically incapacitated from instituting suit to recover compensation,” such allegation placed petitioner within the exception provided by subdivision (4) so as to excuse her from filing the petition within one year. McBrayer v. Dixie Mercerizing Co., 176 Tenn. 560, 144 S.W.2d 764, 1940 Tenn. LEXIS 101 (1940).

Absence of claimant from work for three weeks following injury to eye did not stop running of statute from date of injury, as he had sufficient time thereafter to institute claim within remaining 11 months and one week before claim was barred. Taylor v. J. W. Carter Co., 196 Tenn. 138, 264 S.W.2d 586, 1954 Tenn. LEXIS 353 (1954).

27. Costs Where Right Barred.

In an action under the statute for compensation in which the right to recover is admitted except for the bar of the statutory limitation, costs may be adjudged against the successful employer on appeal to the supreme court. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

28. Pleadings.

Where claimant raised issue of statute of limitations in workers' compensation claim against second injury fund by averring proposition which claimant contended tolled the statute and custodian of fund joined issue on the plea, facts sufficient to show that a party was relying on the statute were set forth in the pleadings. Travelers Ins. Co. v. Austin, 521 S.W.2d 783, 1975 Tenn. LEXIS 695 (Tenn. 1975).

29. Voluntary Termination.

Action was not time barred where permanent disability did not manifest itself until almost 20 years after the employer-employee relationship, which was the basis for liability, had been voluntarily terminated by the employee to seek other employment. Oliver v. State, 762 S.W.2d 562, 1988 Tenn. LEXIS 250 (Tenn. 1988).

Collateral References.

Computation of period for filing death claim under compensation statutes. 119 A.L.R. 1158.

Date of accident or date when injury becomes manifest as time from which period for filing claim commences to run. 108 A.L.R. 316.

Effect of fraud to toll the period for bringing actions to enforce workers' compensation benefits. 15 A.L.R.2d 500.

Effect of injured employee's proceeding for workers' compensation benefits on running of statute of limitations governing action for personal injury arising from same incident. 71 A.L.R.3d 849.

Occupational or industrial disease, when prescriptive period begins to run. 86 A.L.R. 572.

Payments, or furnishing medical or hospital services, or burial, by employer or his insurer, to employee after injury, as affecting time for filing claim under compensation act. 144 A.L.R. 606.

Requirements as to time of notice. 78 A.L.R. 1239, 92 A.L.R. 505, 107 A.L.R. 816, 145 A.L.R. 1263.

War as suspending time for notice or filing of claim under Workers' Compensation Act. 137 A.L.R. 1465, 140 A.L.R. 1518, 141 A.L.R. 1511.

When limitation period begins to run against claim under Workers' Compensation or Occupational Diseases Act for contracting of disease. 11 A.L.R.2d 277.

When limitations period begins to run as to claim for disability benefits for contracting of disease under workers' compensation or occupational diseases act. 86 A.L.R.5th 295.

When time period commences as to claim under Workers' Compensation or Occupational Diseases Act for death of worker due to contraction of disease. 100 A.L.R.5th 567

50-6-225. Appeal if dissatisfied or aggrieved by judgment.

    1. Any party to the proceedings in the court of workers' compensation claims may, if dissatisfied or aggrieved by the judgment of that court, appeal to the supreme court, where the cause shall be heard and determined as provided in the Tennessee Rules of Appellate Procedure.
    2. Review of the workers' compensation court's findings of fact shall be de novo upon the record of the workers' compensation court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise.
    3. The supreme court may, by order, refer workers' compensation cases to a panel known as the special workers' compensation appeals panel. This panel shall consist of three (3) judges designated by the chief justice, at least one (1) of whom shall be a member of the supreme court.
    4. Any case that the supreme court by order or rule refers to the special workers' compensation appeals panel shall be briefed, and oral argument shall be heard pursuant to the Tennessee Rules of Appellate Procedure as if the appeal were being heard by the entire supreme court.
      1. The special workers' compensation appeals panel shall reduce to writing its findings and conclusions in all cases. The decision of the panel shall become the judgment of the supreme court thirty (30) days after it is issued unless:
        1. Any member of the supreme court files with the clerk a written request within the thirty-day period that the case be heard by the entire supreme court, in which event a final judgment will not be entered until the supreme court, after due consideration of the case, enters final judgment; or
        2. Any party to the appeal files a motion requesting review by the entire supreme court within fifteen (15) days after issuance of the decision by the panel, in which event a final judgment will not be entered:
          1. Until the motion is denied; or
          2. If the motion is granted, until the supreme court enters final judgment after its consideration of the case.
      2. For purposes of this subsection (a), a decision of the panel shall be deemed to be issued on the day it is mailed to the parties, which date shall be noted on the decision by the clerk. Section 27-1-122 applies to all motions made pursuant to this subsection (a).
  1. Appeal of all cases under this chapter shall be expedited by:
    1. Giving the cases priority over all cases on the appellate dockets; and
    2. Allowing any case on appeal in the supreme court to be on motion of either party transferred to the bureau where the supreme court is then or will next be in session.
    1. If the judgment or decree is appealed pursuant to subsection (a), interest on the judgment or decree shall be computed from the date that the judgment is entered by the court of workers' compensation claims at an annual rate as defined in § 47-14-121. For purposes of calculating the accrual of interest pursuant to this subdivision (c)(1), the average prime loan rate on the day the judgment or decree is entered by the trial court shall be used.
    2. Total judgment awarded is computed by the total number of weeks multiplied by the benefit rate without any reduction.
  2. When a reviewing court determines pursuant to motion or sua sponte that the appeal of an employer or insurer is frivolous, or taken for purposes of delay, a penalty may be assessed by the court, without remand, against the appellant for a liquidated amount.
  3. When a reviewing court determines pursuant to motion or sua sponte that the appeal of an employee is frivolous, a penalty may be assessed by the court, without remand, against the appellant for a liquidated amount.

Acts 1919, ch. 123, § 32; Shan. Supp. § 3608a182½; Code 1932, § 6885; Acts 1941, ch. 90, § 9; C. Supp. 1950, § 6885; Acts 1969, ch. 311, § 1; 1981, ch. 449, § 2; T.C.A. (orig. ed.), § 50-1018; Acts 1985, ch. 393, §§ 14, 15, 23; 1988, ch. 630, §§ 1, 2; 1992, ch. 952, §§ 7, 8; 1996, ch. 944, § 16; 1997, ch. 150, § 1; 1998, ch. 1024, § 14; 1999, ch. 336, §§ 1, 2; 1999, ch. 520, § 41; 2000, ch. 678, § 1; 2000, ch. 739, § 1; 2000, ch. 852, §§ 7, 8; 2001, ch. 117, § 1; 2004, ch. 962, §§ 16, 49; 2005, ch. 28, § 1; 2006, ch. 703, § 1; 2008, ch. 1183, §§ 5, 6; 2012, ch. 1030, § 1; 2013, ch. 289, § 60; 2015, ch. 341, § 15.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2004, ch. 962, § 51 provided, in part, that § 16 of the act shall apply to accidents or injuries occurring on or after January 1, 2005.

Acts 2006, ch. 703, § 2 provided that the act shall apply to any claim or incident arising on or after July 1, 2006.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, rewrote the section which read: “(a)(1) Notwithstanding any provisions of this chapter to the contrary, in case of a dispute over or failure to agree upon compensation under this chapter, between the employer and employee or the dependent or dependents of the employee, the parties shall first submit the dispute to the benefit review conference process provided by the division of workers' compensation.“(2)(A) In the event the parties are unable to reach an agreement at the benefit review conference as to all issues related to the claim or the benefit review conference process is otherwise exhausted pursuant to rules promulgated by the commissioner, either party may file a civil action as provided in § 50-6-203 in the circuit or chancery court in the county in which the employee resided at the time of the alleged injury or in which the alleged injury occurred. In instances where the employee resides outside of the state and where the injury occurs outside of the state, the complaint shall be filed in any county where the employer maintains an office.“(B) If the parties are unable to reach an agreement at the benefit review conference as to all issues related to the claim or the benefit review conference process is otherwise exhausted pursuant to rules promulgated by the commissioner, and if the employer is a county or a municipal corporation that has accepted the provisions of this chapter, either party may file a civil action in the county in which the governmental entity is located or in the county in which the incident occurred from which the civil action arises.“(3) Neither party in a civil action filed pursuant to this section shall have the right to demand a jury.“(b) The Tennessee Rules of Civil Procedure and the Tennessee Rules of Evidence apply to all civil actions filed pursuant to this section.“(c) Unless required to be filed by an earlier date as a result of discovery requests pursuant to the Tennessee Rules of Civil Procedure, within sixty (60) days after the filing of an answer in an action under this section, the employer shall file with the court a wage statement detailing the employee's wages for the previous fifty-two (52) weeks, unless the employer stipulates that the maximum weekly workers' compensation rate applies in the particular action.“(d) Whenever any civil action is brought pursuant to this section, the judge or chancellor may, if the judge or chancellor so desires, visit the scene of the accident and examine the surroundings.“(e)(1) Any party to the proceedings in the circuit or chancery court may, if dissatisfied or aggrieved by the judgment or decree of that court, appeal to the supreme court, where the cause shall be heard and determined as provided in the Tennessee Rules of Appellate Procedure.“(2) Review of the trial court's findings of fact shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise.“(3) The supreme court may, by order, refer workers' compensation cases to a panel known as the special workers' compensation appeals panel. This panel shall consist of three (3) judges designated by the chief justice, at least one (1) of whom shall be a member of the supreme court.(4) Any case that the supreme court by order or rule refers to the special workers' compensation appeals panel shall be briefed, and oral argument shall be heard pursuant to the Tennessee Rules of Appellate Procedure as if the appeal were being heard by the entire supreme court.“(5)(A) The special workers' compensation appeals panel shall reduce to writing its findings and conclusions in all cases. The decision of the panel shall become the judgment of the supreme court thirty (30) days after it is issued unless:“(i) Any member of the supreme court files with the clerk a written request within the thirty-day period that the case be heard by the entire supreme court, in which event a final judgment will not be entered until the supreme court, after due consideration of the case, enters final judgment; or“(ii) Any party to the appeal files a motion requesting review by the entire supreme court within fifteen (15) days after issuance of the decision by the panel, in which event a final judgment will not be entered:“(a ) Until the motion is denied; or“(b ) If the motion is granted, until the supreme court enters final judgment after its consideration of the case.“(B) For purposes of this subsection (e), a decision of the panel shall be deemed to be issued on the day it is mailed to the parties, which date shall be noted on the decision by the clerk. Section § 27-1-122 applies to all motions made pursuant to this subsection (e).“(6) If the entire supreme court, on its own motion or after granting the motion of a party, reviews an opinion of the special workers' compensation appeals panel, its review will be limited to the record and the briefs on file before the special workers' compensation appeals panel; provided, that the supreme court may, in its discretion, order the parties to further brief the issues or appear at oral argument.“(f) The trial of all cases under this chapter shall be expedited by:“(1) Giving the cases priority over all cases on the trial and appellate dockets; and“(2) Allowing any case on appeal in the supreme court to be on motion of either party transferred to the division where the supreme court is then or will next be in session.“(g)(1) If the judgment or decree of a court is appealed pursuant to subsection (e), interest on the judgment or decree shall be computed from the date that the judgment or decree is entered by the trial court at an annual rate of interest five (5) percentage points above the average prime loan rate for the most recent week for which such an average rate has been published by the board of governors of the federal reserve system on the total judgment awarded by the supreme court. For purposes of calculating the accrual of interest pursuant to this subdivision (g)(1), the average prime loan rate on the day the judgment or decree is entered by the trial court shall be used.“(2) Total judgment awarded is computed by the total number of weeks multiplied by the benefit rate without any reduction.“(3) For purposes of determining the amount of interest that has accrued on a judgment or decree, the commissioner of financial institutions shall maintain a listing of the average prime loan rate as it becomes available each month, and the commissioner of financial institutions shall respond to inquiries concerning what the average prime rate was on a given month and year. If the person making the inquiry so requests, the commissioner shall send the person a letter certifying what the average prime rate was on the month and year requested. The commissioner is authorized to charge a reasonable fee not to exceed ten dollars ($10.00) for preparing and sending the letter.“(4) For purposes of this subsection (g), “judgment” and “decree” includes any discretionary costs awarded pursuant to this chapter.(h) When a reviewing court determines pursuant to motion or sua sponte that the appeal of an employer or insurer is frivolous, or taken for purposes of delay, a penalty may be assessed by the court, without remand, against the appellant for a liquidated amount.“(i) When a reviewing court determines pursuant to motion or sua sponte that the appeal of an employee is frivolous, a penalty may be assessed by the court, without remand, against the appellant for a liquidated amount.“(j) If an employer wrongfully fails to pay an employee's claim for temporary total disability payments, the employer shall be liable, in the discretion of the court, to pay the employee, in addition to the amount due for temporary total disability payments, a sum not exceeding twenty-five percent (25%) of the temporary total disability claim; provided, that it is made to appear to the court that the refusal to pay the claim was not in good faith and that the failure to pay inflicted additional expense, loss or injury upon the employee; and provided, further, that the additional liability shall be measured by the additional expense thus entailed.“(k) If, on request by the specialist, a party fails to produce documents, to cooperate in scheduling a conference or to provide a representative authorized to settle a matter in attendance at a conference, then a specialist may declare an impasse and file the report on unresolved issues with a court. On the motion of either party or on the court's own motion, a court is authorized, but not required, to hold a hearing on the failure to produce documents requested by the specialist, to cooperate in scheduling or to provide a representative who possessed settlement authority. If the court determines that the failure lacked good cause or resulted from bad faith, then the court may assess the offending party who failed to take the requested action with attorney's fees and costs related only to the trial. The commissioner is authorized to promulgate rules to effectuate the purposes of this subsection (k) in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.“(l ) If an employee receives a settlement, judgment or decree under this chapter that includes the payment of medical expenses and the employer or workers' compensation carrier wrongfully fails to reimburse an employee for any medical expenses actually paid by the employee within sixty (60) days of the settlement, judgment or decree, or fails to provide reasonable and necessary medical expenses and treatment, including failure to reimburse for reasonable and necessary medical expenses, in bad faith after receiving reasonable notice of their obligation to provide the medical treatment, the employer or workers' compensation carrier shall be liable, in the discretion of the court, to pay the employee, in addition to the amount due for medical expenses paid, a sum not exceeding twenty-five percent (25%) of the expenses; provided, that it is made to appear to the court that the refusal to pay the claim was not in good faith and that the failure to pay inflicted additional expense, loss or injury upon the employee.”

The 2015 amendment substituted “bureau” for “division” in (b)(2).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

NOTES TO DECISIONS

1. Review.

Prior to his injuries, an employee who worked as a crew chief on a salvage crew could anticipate earning a minimum of $560.00 in a 40 hour week without regard to overtime, while after his placement in the sales department, the employee could anticipate earning the lesser amount of $500.00 per week without regard to commissions. Accordingly, the trial court correctly found that the employee did not have a meaningful return to work and that his award of disability benefits was not limited to one and one-half times his medical impairment. Corso v. Accident Fund Ins. Co., — S.W.3d —, 2016 Tenn. LEXIS 630 (Tenn. Sept. 2, 2016), aff'd, Corso v. Accident Fund Ins. Co., — S.W.3d —, 2016 Tenn. LEXIS 631 (Tenn. Sept. 2, 2016).

Evidence did not preponderate against a trial court's finding that an injured employee was not permanently and totally disabled because the final judgment of the trial court reflected a greater weight given to the testimony of doctors over the testimony of the employee and a vocational evaluator's opinion. Thompson v. UPS, — S.W.3d —, 2017 Tenn. LEXIS 86 (Tenn. Feb. 17, 2017).

Statutes creating the Workers'  Compensation Appeals Board do not violate the constitutional separation of powers requirement because the appellate review exercised by the Appeals Board primarily serves an intra-agency purpose of ensuring that initial agency decisions comply with law and procedure and are supported by substantial evidence, and that function does not frustrate or interfere with the adjudicative function of the courts; Tennessee's workers'  compensation statutory scheme still provides two avenues for judicial review; and a party aggrieved by a decision of the Court of Workers'  Compensation Claims may still appeal directly to the Tennessee Supreme Court rather than filing an appeal with the Appeals Board. Pope v. Nebco of Cleveland, Inc., — S.W.3d —, 2018 Tenn. LEXIS 146 (Tenn. Jan. 16, 2018).

Employer was not required to provide a panel of pain management physicians to an employee because the finding of the trial court that the employee's treating physician did not make a referral for pain management, despite the employee's contention otherwise, was supported by a preponderance of the evidence—including the testimony of the physician that the physician did not believe the pain medicine sought by the employee was indicated, saw no reason to send the employee for pain management, and did not make a referral for pain management. Brantley v. Brantley, — S.W.3d —, 2019 Tenn. LEXIS 504 (Tenn. Nov. 6, 2019).

2. Reversal.

Chancery court erred in finding that a deceased employee's death was compensable because the employee's failure to consume his medication in accordance with his doctor's instructions was an independent intervening cause; because the employee failed to take his pain medication in accordance with his physician's instructions, which ultimately caused his demise, his death was no longer causally related to his work-related injury, and his overdose was an independent intervening cause. Kilburn v. Granite State Ins. Co., 522 S.W.3d 384, 2017 Tenn. LEXIS 198 (Tenn. Apr. 10, 2017).

Evidence supported a trial court's decision that the decedent's illness and death arose out of his employment as a mechanic where the treating physicians, which included specialists in infectious disease, internal medicine, pulmonary medicine and critical care, opined that his death, more likely than not, was due to workplace exposure, the decedent reported breathing in grout and epoxy type substances at work prior to his illness, and lay witnesses confirmed dusty work conditions and a rapid decline in the decedent's health. Holbert v. JBM Inc., — S.W.3d —, 2017 Tenn. LEXIS 709 (Tenn. Nov. 1, 2017).

50-6-225. Submission of claim to court upon failure to agree on compensation — Special workers' compensation appeals panel — Impasse. [Applicable to injuries occurring prior to July 1, 2014.]

    1. Notwithstanding any provisions of this chapter to the contrary, in case of a dispute over or failure to agree upon compensation under this chapter, between the employer and employee or the dependent or dependents of the employee, the parties shall first submit the dispute to the benefit review conference process provided by the division of workers' compensation.
      1. In the event the parties are unable to reach an agreement at the benefit review conference as to all issues related to the claim or the benefit review conference process is otherwise exhausted pursuant to rules promulgated by the commissioner, either party may file a civil action as provided in § 50-6-203 in the circuit or chancery court in the county in which the employee resided at the time of the alleged injury or in which the alleged injury occurred. In instances where the employee resides outside of the state and where the injury occurs outside of the state, the complaint shall be filed in any county where the employer maintains an office.
      2. If the parties are unable to reach an agreement at the benefit review conference as to all issues related to the claim or the benefit review conference process is otherwise exhausted pursuant to rules promulgated by the commissioner, and if the employer is a county or a municipal corporation that has accepted the provisions of this chapter, either party may file a civil action in the county in which the governmental entity is located or in the county in which the incident occurred from which the civil action arises.
    2. Neither party in a civil action filed pursuant to this section shall have the right to demand a jury.
  1. The Tennessee Rules of Civil Procedure and the Tennessee Rules of Evidence apply to all civil actions filed pursuant to this section.
  2. Unless required to be filed by an earlier date as a result of discovery requests pursuant to the Tennessee Rules of Civil Procedure, within sixty (60) days after the filing of an answer in an action under this section, the employer shall file with the court a wage statement detailing the employee's wages for the previous fifty-two (52) weeks, unless the employer stipulates that the maximum weekly workers' compensation rate applies in the particular action.
  3. Whenever any civil action is brought pursuant to this section, the judge or chancellor may, if the judge or chancellor so desires, visit the scene of the accident and examine the surroundings.
    1. Any party to the proceedings in the circuit or chancery court may, if dissatisfied or aggrieved by the judgment or decree of that court, appeal to the supreme court, where the cause shall be heard and determined as provided in the Tennessee Rules of Appellate Procedure.
    2. Review of the trial court's findings of fact shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise.
    3. The supreme court may, by order, refer workers' compensation cases to a panel known as the special workers' compensation appeals panel. This panel shall consist of three (3) judges designated by the chief justice, at least one (1) of whom shall be a member of the supreme court.
    4. Any case that the supreme court by order or rule refers to the special workers' compensation appeals panel shall be briefed, and oral argument shall be heard pursuant to the Tennessee Rules of Appellate Procedure as if the appeal were being heard by the entire supreme court.
      1. The special workers' compensation appeals panel shall reduce to writing its findings and conclusions in all cases. The decision of the panel shall become the judgment of the supreme court thirty (30) days after it is issued unless:
        1. Any member of the supreme court files with the clerk a written request within the thirty-day period that the case be heard by the entire supreme court, in which event a final judgment will not be entered until the supreme court, after due consideration of the case, enters final judgment; or
        2. Any party to the appeal files a motion requesting review by the entire supreme court within fifteen (15) days after issuance of the decision by the panel, in which event a final judgment will not be entered:
          1. Until the motion is denied; or
          2. If the motion is granted, until the supreme court enters final judgment after its consideration of the case.
      2. For purposes of this subsection (e), a decision of the panel shall be deemed to be issued on the day it is mailed to the parties, which date shall be noted on the decision by the clerk. Section 27-1-122 applies to all motions made pursuant to this subsection (e).
    5. If the entire supreme court, on its own motion or after granting the motion of a party, reviews an opinion of the special workers' compensation appeals panel, its review will be limited to the record and the briefs on file before the special workers' compensation appeals panel; provided, that the supreme court may, in its discretion, order the parties to further brief the issues or appear at oral argument.
  4. The trial of all cases under this chapter shall be expedited by:
    1. Giving the cases priority over all cases on the trial and appellate dockets; and
    2. Allowing any case on appeal in the supreme court to be on motion of either party transferred to the division where the supreme court is then or will next be in session.
    1. If the judgment or decree of a court is appealed pursuant to subsection (e), interest on the judgment or decree shall be computed from the date that the judgment or decree is entered by the trial court at an annual rate of interest five (5) percentage points above the average prime loan rate for the most recent week for which such an average rate has been published by the board of governors of the federal reserve system on the total judgment awarded by the supreme court. For purposes of calculating the accrual of interest pursuant to this subdivision (g)(1), the average prime loan rate on the day the judgment or decree is entered by the trial court shall be used.
    2. Total judgment awarded is computed by the total number of weeks multiplied by the benefit rate without any reduction.
    3. For purposes of determining the amount of interest that has accrued on a judgment or decree, the commissioner of financial institutions shall maintain a listing of the average prime loan rate as it becomes available each month, and the commissioner of financial institutions shall respond to inquiries concerning what the average prime rate was on a given month and year. If the person making the inquiry so requests, the commissioner shall send the person a letter certifying what the average prime rate was on the month and year requested. The commissioner is authorized to charge a reasonable fee not to exceed ten dollars ($10.00) for preparing and sending the letter.
    4. For purposes of this subsection (g), “judgment” and “decree” includes any discretionary costs awarded pursuant to this chapter.
  5. When a reviewing court determines pursuant to motion or sua sponte that the appeal of an employer or insurer is frivolous, or taken for purposes of delay, a penalty may be assessed by the court, without remand, against the appellant for a liquidated amount.
  6. When a reviewing court determines pursuant to motion or sua sponte that the appeal of an employee is frivolous, a penalty may be assessed by the court, without remand, against the appellant for a liquidated amount.
  7. If an employer wrongfully fails to pay an employee's claim for temporary total disability payments, the employer shall be liable, in the discretion of the court, to pay the employee, in addition to the amount due for temporary total disability payments, a sum not exceeding twenty-five percent (25%) of the temporary total disability claim; provided, that it is made to appear to the court that the refusal to pay the claim was not in good faith and that the failure to pay inflicted additional expense, loss or injury upon the employee; and provided, further, that the additional liability shall be measured by the additional expense thus entailed.
  8. If, on request by the specialist, a party fails to produce documents, to cooperate in scheduling a conference or to provide a representative authorized to settle a matter in attendance at a conference, then a specialist may declare an impasse and file the report on unresolved issues with a court. On the motion of either party or on the court's own motion, a court is authorized, but not required, to hold a hearing on the failure to produce documents requested by the specialist, to cooperate in scheduling or to provide a representative who possessed settlement authority. If the court determines that the failure lacked good cause or resulted from bad faith, then the court may assess the offending party who failed to take the requested action with attorney's fees and costs related only to the trial. The commissioner is authorized to promulgate rules to effectuate the purposes of this subsection (k) in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  9. If an employee receives a settlement, judgment or decree under this chapter that includes the payment of medical expenses and the employer or workers' compensation carrier wrongfully fails to reimburse an employee for any medical expenses actually paid by the employee within sixty (60) days of the settlement, judgment or decree, or fails to provide reasonable and necessary medical expenses and treatment, including failure to reimburse for reasonable and necessary medical expenses, in bad faith after receiving reasonable notice of their obligation to provide the medical treatment, the employer or workers' compensation carrier shall be liable, in the discretion of the court, to pay the employee, in addition to the amount due for medical expenses paid, a sum not exceeding twenty-five percent (25%) of the expenses; provided, that it is made to appear to the court that the refusal to pay the claim was not in good faith and that the failure to pay inflicted additional expense, loss or injury upon the employee.

Acts 1919, ch. 123, § 32; Shan. Supp. § 3608a182½; Code 1932, § 6885; Acts 1941, ch. 90, § 9; C. Supp. 1950, § 6885; Acts 1969, ch. 311, § 1; 1981, ch. 449, § 2; T.C.A. (orig. ed.), § 50-1018; Acts 1985, ch. 393, §§ 14, 15, 23; 1988, ch. 630, §§ 1, 2; 1992, ch. 952, §§ 7, 8; 1996, ch. 944, § 16; 1997, ch. 150, § 1; 1998, ch. 1024, § 14; 1999, ch. 336, §§ 1, 2; 1999, ch. 520, § 41; 2000, ch. 678, § 1; 2000, ch. 739, § 1; 2000, ch. 852, §§ 7, 8; 2001, ch. 117, § 1; 2004, ch. 962, §§ 16, 49; 2005, ch. 28, § 1; 2006, ch. 703, § 1; 2008, ch. 1183, §§ 5, 6; 2012, ch. 1030, § 1.

Compiler's Notes. Acts 1992, ch. 952, § 15 provided that the amendments by that act apply to all matters as to which a notice of appeal is filed from and after May 1, 1992.

Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2000, ch. 739, § 2 provided that subdivision (g)(3) shall apply to any judgment or decree entered on or after July 1, 2000.

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2004, ch. 962, § 51 provided, in part, that § 16 of the act shall apply to accidents or injuries occurring on or after January 1, 2005.

Acts 2006, ch. 703, § 2 provided that the act shall apply to any claim or incident arising on or after July 1, 2006.

The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

Cross-References. Inapplicability to claims filed against state, § 9-8-307.

Rule Reference. This section is referred to in Rule 37 of the Rules of the Supreme Court of Tennessee.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 8, 535-537.

Tennessee Jurisprudence, 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 16; 24 Tenn. Juris., Venue, § 4; 26 Tenn. Juris., Workers' Compensation, §§ 46, 47, 57.

Law Reviews.

Conflict of Laws — Workmen's Compensation — Forum's Use of Foreign State's Tort Law for Recovery Against Third Party Does Not Require Forum's Use of Foreign State's Election Provision in Workmen's Compensation Suit, 16 Vand. L. Rev. 401 (1963).

Tennessee Workers' Compensation — Where Is the Proper Venue? (D. Andrew Byrne, Ted C. Raynor), 20 Mem. St. U. L. Rev. 189 (1990).

NOTES TO DECISIONS

1. Constitutionality.

The provision in this section giving fees to judges in office was declared unconstitutional in view of Tenn. Const., art. VI, § 7, that judges' compensation shall not be increased or diminished during the time for which they are elected. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

The invalidity of the provision in this section of a fee did not render the whole compensation act invalid, since the invalid part could be elided. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

Denial of jury trial does not render the statute unconstitutional, the statute being elective so that the parties waived jury by voluntary acceptance of the statute. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute does not violate Tenn. Const., art. I, § 8, providing that no man shall be taken or disseized of his property but by the judgment of his peers or the law of the land. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This section did not have the effect of closing, to an employee, courts that were open to him prior to its passage nor of denying him a remedy by due process of law, contrary to the constitution. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute does not deprive the employee of his property without due process of law in violation of U.S. Const., amend. 14. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

There was no merit in the contention that T.C.A. § 50-6-225 is unconstitutional because it provides a different rate of interest from that ordinarily applicable to money judgments nor does the statute unfairly penalize the insurance carrier when the employee appeals. Underwood v. Liberty Mut. Ins. Co., 782 S.W.2d 175, 1989 Tenn. LEXIS 542 (Tenn. 1989).

Workers'  compensation claimants failed to establish that the benefit review conference in T.C.A. § 50-6-203(a), T.C.A. § 50-6-225(a)(1), and T.C.A. § 50-6-239(b) was unconstitutional; because injured workers are free to file suit and have rights judicially determined upon exhausting the review process, they are not deprived of right to be heard by judge. Lynch v. City of Jellico, 205 S.W.3d 384, 2006 Tenn. LEXIS 759 (Tenn. 2006), cert. denied, 549 U.S. 1280, 127 S. Ct. 1830, 167 L. Ed. 2d 320, 2007 U.S. LEXIS 3049 (2007).

2. Scope.

This section only covers controversies between employer and employee and not suit by a physician against an employer to recover for services to injured employee under contract therefor, which suit may be brought before a justice. Knox Stove Works v. Hodge, 154 Tenn. 187, 289 S.W. 505, 1926 Tenn. LEXIS 115 (1926).

3. Construction.

Though the supreme court will effectuate the legislative intent that technicalities of common-law pleading are not to be needlessly observed in proceedings under the statute to the prejudice of substantive rights, it will not rule counter to a positive mandate of the statute in order to save a particular case from its proscription. Minor v. E. I. Du Pont De Nemours & Co., 164 Tenn. 226, 47 S.W.2d 748, 1931 Tenn. LEXIS 26 (1932).

4. Nature of Actions.

Actions under this statute cannot be classified as in either tort or contract. They are personal, not local, and are inherently transitory. Chambers v. Sanford & Treadway, 154 Tenn. 134, 289 S.W. 533, 1926 Tenn. LEXIS 111 (1926), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993), superseded by statute as stated in, Ferguson v. Ram Enters., 900 S.W.2d 19, 1995 Tenn. LEXIS 268 (Tenn. 1995).

In view of this section, all compensation cases must be tried and reviewed as law cases regardless of whether they are heard in the circuit, criminal or chancery court. Bailey v. American Glanzstoff Corp., 163 Tenn. 206, 42 S.W.2d 347, 1931 Tenn. LEXIS 100 (1931).

An action under the workers' compensation statute is transitory. Felty v. Chillicothe Realty Co., 175 Tenn. 315, 134 S.W.2d 153, 1939 Tenn. LEXIS 44 (1939).

A compensation suit is for all intents and purposes related to and almost identical with a suit in chancery. Bowling v. Whitley, 208 Tenn. 657, 348 S.W.2d 310, 1961 Tenn. LEXIS 337 (1961).

Judgments in workers' compensation cases are frequently termed awards in the statute and such awards lack the finality ordinarily characteristic of judgments, being subject to review and modification and even of complete suspension of further liability upon a proper showing. Rhea v. Park, 211 Tenn. 589, 366 S.W.2d 765, 1963 Tenn. LEXIS 382 (1963).

No action for punitive damages is allowable in a workers' compensation case. Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963).

An employee's claim for compensation benefits does not survive to his personal representative after his death. Travelers Ins. Co. v. Wing, 584 S.W.2d 789, 1979 Tenn. LEXIS 473 (Tenn. 1979).

5. Single Action and Judgment Contemplated.

This statute which creates liability for the award contemplates a single action for the determination of a claimant's right to benefits and a single judgment for the award granted. Aetna Casualty & Surety Co. v. Flowers, 330 U.S. 464, 67 S. Ct. 798, 91 L. Ed. 1024, 1947 U.S. LEXIS 2550 (1947).

The employee may sue the insurer alone or jointly with the employer, however only one recovery is contemplated in the amount to which the employee is entitled by the statute and such employee is not entitled to a judgment in one amount against the employer and for a different amount against the insurer. Bituminous Casualty Corp. v. Smith, 200 Tenn. 13, 288 S.W.2d 913, 1956 Tenn. LEXIS 372 (1956).

6. Jurisdiction and Venue.

Provision of this section touching venue, providing for filing petition where petitioner resides or where accident happens are not exclusive, and do not preclude bringing action in court in county where employer has his office and place of business, under code provisions. Chambers v. Sanford & Treadway, 154 Tenn. 134, 289 S.W. 533, 1926 Tenn. LEXIS 111 (1926), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993), superseded by statute as stated in, Ferguson v. Ram Enters., 900 S.W.2d 19, 1995 Tenn. LEXIS 268 (Tenn. 1995).

The venue is not governed exclusively by this section. Where a corporate employer was located in Davidson County and the injury occurred there, the venue was in Davidson County, notwithstanding the injured employee lived in De Kalb County, when there was no corporate office, agent or resident director in this last mentioned county. Redman v. Dupont Rayon Co., 165 Tenn. 585, 56 S.W.2d 737, 1932 Tenn. LEXIS 90 (1932), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Rights under the Workers' Compensation Law are contractual in nature, an action thereunder is transitory, and the circuit court has jurisdiction of an action against the employer although the rights of the parties are to be determined by the laws of the state of Kentucky. Employers' Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837, 1937 Tenn. LEXIS 89 (1938).

Employer cannot question jurisdiction of the lower court for the first time on appeal on the grounds that contract of employment was entered into in Kentucky, and that employer and employee were operating under compensation law of Kentucky. Employers' Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837, 1937 Tenn. LEXIS 89 (1938).

Under this section the local jurisdiction of cases involving disputes over or failure to agree on compensation between employer and employee is in the county where the accident occurred. Borden Mills, Inc. v. Manis, 173 Tenn. 440, 121 S.W.2d 523, 1938 Tenn. LEXIS 25 (1938).

No jurisdictional rights have been taken from the employee when he is brought into the county where his injury was suffered, and where his employer resides and operates, since he is exactly where he would be if and when he should institute an action seeking recovery. Borden Mills, Inc. v. Manis, 173 Tenn. 440, 121 S.W.2d 523, 1938 Tenn. LEXIS 25 (1938).

Circuit court had jurisdiction of proceedings for workers' compensation since it is not only a court of general jurisdiction, but it has jurisdiction of suits brought to recover under the compensation act by the terms of this section. Standard Sur. & Cas. Co. v. Sloan, 180 Tenn. 220, 173 S.W.2d 436, 1943 Tenn. LEXIS 20, 149 A.L.R. 407 (1943).

Suit could not be filed for compensation in Smith County, residence of employee for accident occurring in Anderson County, if employing corporation did not have an agent or office in Smith County, even though insurer had authorized commissioner of insurance (now commissioner of commerce and insurance) to accept service for it in all cases arising in the state. Brown v. Stone & Webster Engineering Corp., 181 Tenn. 293, 181 S.W.2d 148, 1944 Tenn. LEXIS 373 (1944), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

This section clearly classifies the proceeding as a suit of a civil nature and the actions are inherently transitory. Flowers v. Aetna Casualty & Surety Co., 163 F.2d 411, 1947 U.S. App. LEXIS 3215 (6th Cir. Tenn. 1947).

Injured employee could sue insurer without joining employer, in the county of the employee's residence, although it was different from the county in which the accident occurred and in which the employer maintained an office, where the insurer was a nonresident corporation with no designated agent for service and service was had on the state commissioner of insurance (now commissioner of commerce and insurance). T. H. Mastin & Co. v. Loveday, 202 Tenn. 589, 202 Tenn. 598, 308 S.W.2d 385, 1957 Tenn. LEXIS 444 (1957), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

In workers' compensation proceeding where accident occurred in one county and employer, a foreign corporation, had its place of business in such county but employee brought suit against employer and its supposed insurance carrier in another county where nonresident carrier had office, but it developed that another insurance company, also nonresident, was the carrier and such carrier had no office in county where suit was brought, employee could not substitute carrier and continue suit in county where originally brought. General Acci. Fire & Life Assurance Corp. v. Kirkland, 207 Tenn. 72, 338 S.W.2d 549, 1960 Tenn. LEXIS 428 (1960).

Workers' compensation cases must be brought: (1) In the county of petitioner's residence; or (2) In the county in which the accident happened, if the defendant is subject to service of process in either of those counties, and if the insurance company alone is being sued, and service of process can be obtained on the insurance commissioner, venue is restricted to the county of petitioner's residence or where the accident occurred; or (3) The petition may be filed in any county of the state where the defendant maintains an office or agent for service of process only if the defendant is not servable in either of the above counties in keeping with the act. Insurance Co. of North America v. Lane, 215 Tenn. 376, 386 S.W.2d 513, 1965 Tenn. LEXIS 626 (1965), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Where workers' compensation claimant was temporarily in Davidson County and was injured at employer's plant in Davidson County and thereafter returned to Fentress County which was the county of his residence and commenced action in Fentress County against his employer's insurance carrier, a foreign corporation licensed to do business in Tennessee and having an office in Davidson County but not in Fentress County, by service of process on commissioner of insurance and banking (now commissioner of commerce and insurance) under § 56-2-504, trial court properly sustained plea in abatement on ground that venue was not in Fentress County. Human v. Liberty Mut. Ins. Co., 219 Tenn. 335, 409 S.W.2d 536, 1966 Tenn. LEXIS 533 (1966), superseded by statute as stated in, Sikes v. Colonial Rubber Co., 575 S.W.2d 275, 1978 Tenn. LEXIS 691 (Tenn. 1978).

Where employer and employee filed suits in different courts having concurrent jurisdiction of same workers' compensation matter, jurisdiction of court in which first suit was filed was exclusive. American Lava Corp. v. Savena, 476 S.W.2d 639, 1972 Tenn. LEXIS 383 (Tenn. 1972).

Dismissal for lack of venue is not a dismissal on the merits. Burton v. Borden Foods Co., 494 S.W.2d 775, 1972 Tenn. LEXIS 309 (Tenn. 1972).

As long as the court where the original suit was filed retained jurisdiction, another court was precluded from assuming jurisdiction in action for modification under § 50-6-231. Gould, Inc., Century Electric Div. v. Barnes, 498 S.W.2d 623, 1973 Tenn. LEXIS 461 (Tenn. 1973).

Waiver of question of venue in original suit resulted in waiver in modification suit under § 50-6-231. Gould, Inc., Century Electric Div. v. Barnes, 498 S.W.2d 623, 1973 Tenn. LEXIS 461 (Tenn. 1973).

Employer in workers' compensation action, a foreign corporation with a manufacturing plant in the county in which the accident occurred, was not subject to suit in the county in which the claimant resided. Sikes v. Colonial Rubber Co., 575 S.W.2d 275, 1978 Tenn. LEXIS 691 (Tenn. 1978), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Proper venue for a workers' compensation action against the insurance company is established in the county of the employee's residence, under the “unless venue is otherwise expressly provided for” clause in the general venue statute, § 20-4-101, by the amendment adding the last sentence of § 56-2-103(3) (now (a)(3)), which provides the qualifications of an insurance company to do business in the state. Sikes v. Colonial Rubber Co., 575 S.W.2d 275, 1978 Tenn. LEXIS 691 (Tenn. 1978), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Under this section, venue of a workers' compensation action lies in the county in which the petitioner resides, or in the county in which the accident or injury was incurred, but subject to the general rules relating to transitory actions, including the requirement that the defendant be servable with process in the county where the suit was brought, as in other civil cases. Sikes v. Colonial Rubber Co., 575 S.W.2d 275, 1978 Tenn. LEXIS 691 (Tenn. 1978), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993); Turpin v. Conner Bros. Excavating Co., 761 S.W.2d 296, 1988 Tenn. LEXIS 242 (Tenn. 1988), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Where a workers' compensation action instituted by an employer and its insurance carrier was brought in the county of residence of the employee, an individual, venue was properly laid, even though the accident happened in a different county where the employer had its principal place of business. Volner v. Davis, 624 S.W.2d 555, 1981 Tenn. LEXIS 504 (Tenn. 1981), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

The court of appeals has intermediate appellate jurisdiction of appeals from orders relating to suits for negligence, even though the existence or nonexistence of workers' compensation coverage may affect the right to recover for negligence. Hill v. King, 663 S.W.2d 435, 1983 Tenn. App. LEXIS 650 (Tenn. Ct. App. 1983).

Venue in worker's compensation cases is to be determined exclusively by subdivision (c)(1) of T.C.A. § 50-6-225 in isolation, without regard to T.C.A. § 20-4-101, the statute providing for venue in general transitory actions. Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

Where a Tennessee forum is in fact available to a workers' compensation claimant, T.C.A. § 50-6-225 controls the issue of venue; however, where a Tennessee forum is not available under that section, venue would be determined pursuant to T.C.A. § 20-4-101, the general venue statute for transitory actions, and the claimant would be free to bring the action in the county in which the employer resides or is found. Ferguson v. Ram Enters., 900 S.W.2d 19, 1995 Tenn. LEXIS 268 (Tenn. 1995).

An insurer cannot choose to have a workers' compensation case tried in any county wherein the insurer may have a legal presence. Lumbermen's Mut. Cas. Co. v. Guerrero, 939 S.W.2d 574, 1997 Tenn. LEXIS 110 (Tenn. Special Workers' Comp. App. Panel 1997).

Pursuant to T.C.A. § 50-6-225(e)(5), the 15-day period for filing a motion for review is jurisdictional and the appellate court therefore was without jurisdiction to consider a motion that was not timely filed; the special workers' compensation appeals panel's decision was issued, and the parties therefore had 15 days within which to file a motion for review. Young v. Nashville Elec. Serv., 142 S.W.3d 292, 2004 Tenn. LEXIS 629 (Tenn. 2004).

Denial of the municipal corporation's motion to dismiss or transfer the claimant's workers'  compensation action was affirmed because the corporation was subject to the venue provisions of the Workers'  Compensation Act when it voluntarily entered into the workers'  compensation system pursuant to an express grant of authority from the Tennessee General Assembly, which thus effected a waiver of its sovereign immunity; the specific venue provisions of the Workers'  Compensation Act controlled venue and applied and the corporation could be sued in the claimant's county of residence. Lanius v. Nashville Elec. Serv., 181 S.W.3d 661, 2005 Tenn. LEXIS 1047 (Tenn. 2005).

When the time stamp on an employee's complaint seeking workers'  compensation benefits was two minutes earlier than the time stamp on a benefit review conference report (report), a trial court had no jurisdiction to consider the complaint because (1) T.C.A. § 50-6-225(a)(2)(A) required the parties to exhaust the benefit review process before seeking judicial review, (2) while the statute did not state exactly when a benefit review conference was deemed exhausted, Tenn. Comp. R. & Regs. 0800-2-5-.09 stated the date and time noted on the report determined when that process was exhausted, (3) this regulation had the force of law, since the legislature authorized the division (now bureau) of workers'  compensation to create a benefit review conference process in T.C.A. § 50-6-233(a)(3) and (c)(2), and (4) extrinsic evidence could not be used to impeach the time stamp on the complaint, absent fraud, inevitable accident, or surprise, which were not shown, as that time stamp was unambiguous, so the complaint was filed before the time noted on the report, and, as a result, the complaint did not invoke the trial court's jurisdiction. Word v. Metro Air Servs., 377 S.W.3d 671, 2012 Tenn. LEXIS 510 (Tenn. Aug. 21, 2012).

When a trial court's subject matter jurisdiction over a workers'  compensation case, pursuant to T.C.A. § 50-6-225(a)(2)(A), is premised on the issuance of a benefit review report (report), as specified by Tenn. Comp. R. § Regs. 0800-2-5-.09(1), a complaint may not be filed until the time noted on the report, and, when a complaint bears an unambiguous time stamp, the complaint shall be deemed filed at the time indicated, and the time stamp may not be impeached by extrinsic evidence. Word v. Metro Air Servs., 377 S.W.3d 671, 2012 Tenn. LEXIS 510 (Tenn. Aug. 21, 2012).

7. Submission to Jurisdiction.

Inclusion in defendant's motion to dismiss for want of jurisdiction of reference to relative liability of principal, intermediate or subcontractors, and denial that act covered them under the facts, was not such a defense as would amount to a general appearance and a submission to the local jurisdiction of the court. Chambers v. Sanford & Treadway, 154 Tenn. 134, 289 S.W. 533, 1926 Tenn. LEXIS 111 (1926), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993), superseded by statute as stated in, Ferguson v. Ram Enters., 900 S.W.2d 19, 1995 Tenn. LEXIS 268 (Tenn. 1995).

8. Jurisdiction of Federal Court.

This statute is court administered, therefore a suit under the statute is a suit of a civil nature and the federal district court may have jurisdiction if there is diversity of citizenship and the required amount in controversy. Flowers v. Aetna Casualty & Surety Co., 163 F.2d 411, 1947 U.S. App. LEXIS 3215 (6th Cir. Tenn. 1947).

General assembly intended that workers' compensation cases should be tried by the state courts as soon as possible as close to the claimant's residence as possible, but if the claim exceeds $3,000 and diversity of citizenship exists, either party may have the case removed to the proper federal court. Johnson v. United States Fidelity & Guaranty Co., 126 F. Supp. 84, 1954 U.S. Dist. LEXIS 2448 (D. Tenn. 1954).

9. Proceedings by Employer.

Though an employer, under this section, has filed a petition and had the amount of his compensation fixed, the employee is not bound to collect the compensation so fixed, and until he does collect it he does not lose his right to proceed against the third party, notwithstanding provision in § 50-6-112 permitting employer to sue third party as soon as the employer becomes liable for compensation. Mitchell v. Usilton, 146 Tenn. 419, 242 S.W. 648, 1921 Tenn. LEXIS 24 (1921).

Right of an employer to an autopsy may be enforced by instituting proceedings under this section. Lenoir Car Works v. Hill, 163 Tenn. 578, 44 S.W.2d 321, 1931 Tenn. LEXIS 151 (1931).

The employer's right to file suit and “submit the entire matter for determination” by the court could be asserted as a counterclaim under Tenn. R. Civ. P. 41.01. Blake v. Plus Mark, Inc., 952 S.W.2d 413, 1997 Tenn. LEXIS 428 (Tenn. 1997).

Trial court had two differing accounts of the crucial events before it, and had the opportunity to observe the demeanor of the witnesses, and thus the trial court's determination that the employee was credible, and its acceptance of his description of events was entitled to deference; the evidence did not preponderate against the finding that the employee did not voluntarily resign and that he was unable to return to work as a result of his injury. Collier v. McEvoy Funeral Home, Inc., — S.W.3d —, 2014 Tenn. LEXIS 1042 (Tenn. Dec. 29, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 1041 (Tenn. Dec. 29, 2014).

10. Proceedings for Greater Award.

Where parties to a compensation proceeding have not agreed to the modification of a prior award, and more than six months have lapsed from the date of the award, petitioner was entitled to make application to the court for a greater award because of increased incapacity of the injured employee, due wholly to the injury of the employee. Ledford v. Johnson City Foundry & Machine Co., 169 Tenn. 430, 88 S.W.2d 804, 1935 Tenn. LEXIS 66 (1935).

Supreme court overruled motion to dismiss appeal in error for failure to file motion for new trial where motion had been made below to correct judgment and only question presented was of law. Baine v. Queen Ins. Co., 217 Tenn. 143, 395 S.W.2d 805, 1965 Tenn. LEXIS 527 (1965).

11. Commencement of Action.

The practice prescribed by this section for commencement of action is substantially the same as the practice in equity cases in the chancery court. Minor v. E. I. Du Pont De Nemours & Co., 164 Tenn. 226, 47 S.W.2d 748, 1931 Tenn. LEXIS 26 (1932).

12. Summons.

In neither chancery court nor circuit court is clerk empowered to issue summons in an action for compensation except upon and after filing of petition containing statement of claim for compensation, and summons issued prior to filing petition or claim is void and cannot be treated as commencement of action for compensation so as to toll running of prescriptive period. Minor v. E. I. Du Pont De Nemours & Co., 164 Tenn. 226, 47 S.W.2d 748, 1931 Tenn. LEXIS 26 (1932).

The summons authorized to be issued is only authorized to be issued upon filing of the petition under the Workers' Compensation Law and is similar in form and substance to a summons issued by the clerk of the chancery court upon the filing of a bill in equity. Bowling v. Whitley, 208 Tenn. 657, 348 S.W.2d 310, 1961 Tenn. LEXIS 337 (1961).

13. Pleading.

By construction, the court inclines from technicalities in pleading to simplicity, as far as possible. R. W. Hartwell Motor Co. v. Hickerson, 160 Tenn. 513, 26 S.W.2d 153, 1929 Tenn. LEXIS 127 (1930).

Pleading alleging speech defect resulting from accident was sufficient to allow trial judge to base award on aggravation of preexisting speech defect. F. Perlman & Co. v. Ellis, 219 Tenn. 373, 410 S.W.2d 166, 1966 Tenn. LEXIS 536 (1966).

14. —Allegations.

Petition must allege, when county is sued, that it had accepted the provisions of the statute. Bohannon v. Putnam County, 157 Tenn. 170, 7 S.W.2d 58, 1927 Tenn. LEXIS 62 (1928).

Petitioner does not have to allege notice or excuse for not giving it. R. W. Hartwell Motor Co. v. Hickerson, 160 Tenn. 513, 26 S.W.2d 153, 1929 Tenn. LEXIS 127 (1930).

Petition need not allege that the parties were operating under the statute, nor that five men were regularly employed. Bragg's Quarry v. Smith, 161 Tenn. 682, 33 S.W.2d 87, 1930 Tenn. LEXIS 55 (1930).

Declaration for compensation for disease as accidental injury is demurrable in absence of averment of a determinate, single occurrence, identified in time and space, to which the injury is assignable. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931).

The petition should state the nature of the injury so as to advise the employer of the nature of the claim and enable him to prepare to meet it. Phillips v. Diamond Coal Mining Co., 175 Tenn. 191, 133 S.W.2d 476, 1939 Tenn. LEXIS 29 (1939); Ledford v. Miller Bros. Co., 194 Tenn. 467, 253 S.W.2d 552, 1952 Tenn. LEXIS 405 (1952).

An allegation of injury to the leg by reason of a specified accident is sufficiently broad to let in proof that the accident aggravated a preexisting injury of that leg. Ledford v. Miller Bros. Co., 194 Tenn. 467, 253 S.W.2d 552, 1952 Tenn. LEXIS 405 (1952).

Even though the employee alleges that he is permanently and totally disabled, the trial court is not precluded from finding a different kind of disability from that alleged on the basis of the evidence in the case. Yates v. Superior Supply Co., 224 Tenn. 151, 451 S.W.2d 686, 1969 Tenn. LEXIS 382, 1969 Tenn. LEXIS 383 (1969).

15. — —Matters Not Alleged.

Under the rule of liberality of construction, recovery may be had for aggravation of a preexisting condition where such issue is raised by the evidence, even though the employee does not allege such ground in his pleading or seek at the outset to recover under this theory. Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 315 S.W.2d 245, 1958 Tenn. LEXIS 230 (1958).

16. — —Amendment.

Amendment cured failure to name a dependent sister as party plaintiff. Bohlen-Huse Coal & Ice Co. v. McDaniel, 148 Tenn. 628, 257 S.W. 848, 1923 Tenn. LEXIS 48 (1924).

Amended petition bringing in new parties which was filed before any answer, demurrer or other pleading had been entered was filed as a matter of right and tolled the running of the statute of limitations as to new parties. Bowling v. Whitley, 208 Tenn. 657, 348 S.W.2d 310, 1961 Tenn. LEXIS 337 (1961).

17. —Answer.

Though the minute entry of the lower court fails to show that motion of employer, in compensation case to amend its answer to set up defense of failure to give notice, was ever granted, defense of lack of notice must be considered as properly presented in view of recital in final judgment of lower court that the amended answer was considered by the court. Patten Hotel Co. v. Milner, 145 Tenn. 632, 238 S.W. 75, 1921 Tenn. LEXIS 101 (1921).

Proceeding under this statute being equitable in nature under the express provisions of the statute, every essential averment of fact in the petition not admitted by the answer is treated as denied. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

Since a suit follows the course of equity, a defendant cannot avail of special defense not stated in his answer, though it should appear in the proof. Sears-Roebuck & Co. v. Starnes, 160 Tenn. 504, 26 S.W.2d 128, 1929 Tenn. LEXIS 126 (1930). See King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

The proper practice is for the employer to plead want of notice in his answer. The burden is then on the claimant to prove that notice was given or to satisfy the court that he is excusable for not giving it. R. W. Hartwell Motor Co. v. Hickerson, 160 Tenn. 513, 26 S.W.2d 153, 1929 Tenn. LEXIS 127 (1930).

18. Evidence.

Broadly, the rules of evidence applicable in trials of nonjury cases in circuit court are applicable in compensation cases. Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717, 1928 Tenn. LEXIS 177 (1929).

Injured person may testify as to extent of impairment of vision over objection that his evidence embodied an opinion. Black Diamond Collieries v. Gibbs, 161 Tenn. 413, 32 S.W.2d 1041, 1930 Tenn. LEXIS 21 (1930).

A claimant may be permitted without any corroborating evidence, medical or otherwise, to evaluate his alleged disability, notwithstanding medical evidence to the contrary. Hamlin & Allman Iron Works v. Jones, 200 Tenn. 242, 292 S.W.2d 27, 1956 Tenn. LEXIS 402 (1956).

Admission of testimony of doctor adduced by permission of chancellor after original hearing was within discretion of chancellor. Nashville Pure Milk Co. v. Rychen, 204 Tenn. 575, 322 S.W.2d 432, 1958 Tenn. LEXIS 277 (1958).

The same rules of evidence apply to workers' compensation cases as to other nonjury cases heard by the circuit court. Maryland Casualty Co. v. Young, 211 Tenn. 1, 362 S.W.2d 241, 1962 Tenn. LEXIS 331 (1962).

A lay witness may testify as to his own physical condition or that of another person provided such witness first states the detailed facts and then gives his conclusions. American Surety Co. v. Kizer, 212 Tenn. 328, 369 S.W.2d 736, 1963 Tenn. LEXIS 426 (1963).

Testimony of injured employee as to the extent of his injuries may be accepted over testimony of medical experts. Fidelity & Casualty Co. v. Treadwell, 212 Tenn. 1, 367 S.W.2d 470, 1963 Tenn. LEXIS 393 (1963).

In a proceeding under § 50-6-231, lay testimony of employee and husband was not sufficient to establish that increased incapacity of employee resulted solely from original injury. Magnavox Co. of Tennessee v. Shepherd, 214 Tenn. 321, 379 S.W.2d 791, 1964 Tenn. LEXIS 480 (1964).

While lay testimony, including that of the claimant, is of probative value in establishing such simple matters as existence of pain, its location, petitioner's inability to work, etc., there are areas in which expert testimony is necessary and lay testimony is obviously incompetent. Magnavox Co. of Tennessee v. Shepherd, 214 Tenn. 321, 379 S.W.2d 791, 1964 Tenn. LEXIS 480 (1964).

Lay testimony is competent to establish simple but important matters such as the existence of pain, its location, inability to work and the like, but it may not be received and relied on to prove matters requiring scientific knowledge. American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W.2d 643, 1965 Tenn. LEXIS 573 (1965); Neas v. Snapp, 221 Tenn. 325, 426 S.W.2d 498, 1968 Tenn. LEXIS 468 (1968); Tom Still Transfer Co. v. Way, 482 S.W.2d 775, 1972 Tenn. LEXIS 358 (Tenn. 1972).

Character witnesses were properly permitted to testify for employee where employer raised issue that employee was malingering. Pocahontas Fuel Co. v. Orick, 218 Tenn. 514, 404 S.W.2d 500, 1966 Tenn. LEXIS 648 (1966).

Trial court may base its findings upon all the evidence, medical and lay, with respect to extent of disability. Industrial Coated Products, Inc. v. Buchanan, 224 Tenn. 69, 450 S.W.2d 566, 1970 Tenn. LEXIS 302 (1970).

The trial court is not bound to accept the doctors' opinion concerning the degree of disability but is entitled to determine the same from all evidence, expert and nonexpert. A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141, 1970 Tenn. LEXIS 329 (1970).

Since negligence is not involved in workers' compensation proceedings, evidence of negligence of employer or of employer's staff nurse in treating employee in clinic was irrelevant and inadmissible in compensation proceeding to recover for death of employee. Poe v. E. I. Dupont Denemours & Co., 224 Tenn. 683, 462 S.W.2d 480, 1970 Tenn. LEXIS 392 (1970).

Worker could by her own testimony establish temporary total disability because of back pains but could not establish permanent partial disability from such injury in absence of medical testimony. Floyd v. Tennessee Dickel Distilling Co., 225 Tenn. 65, 463 S.W.2d 684, 1971 Tenn. LEXIS 277 (1971).

Where medical testimony establishes the permanency of an injury, lay testimony becomes admissible and relevant on the issue of the extent of the work disability. Smith v. Hale, 528 S.W.2d 543, 1975 Tenn. LEXIS 626 (Tenn. 1975).

Evidence did not preponderate against the trial court's finding of twenty-two and one half percent permanent partial disability because, by assigning a medical impairment rating and imposing physical limitations, the treating physician credited the claimant's subjective complaints of pain; more importantly, the trial court observed the claimant in the courtroom and heard her testify and the court was well aware that the claimant had provided false deposition testimony concerning her employment status. Bryant v. Baptist Health Sys. Home Care of East Tennessee, 213 S.W.3d 743, 2006 Tenn. LEXIS 1144 (Tenn. Dec. 21, 2006).

Evidence did not preponderate against the trial court's decision to award an employee benefits because the trial court considered the lay and expert testimony, the factors for assessing vocational disability, and reached a result consistent with the proof, and the employee established that his injuries had a rational, causal connection to the work; due to his injuries, the employee was unable to continue working, and a doctor testified that because of the injury, he was almost crippled. Wilcutt v. Cam Elec. Sys., — S.W.3d —, 2014 Tenn. LEXIS 595 (Tenn. July 28, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 594 (Tenn. July 28, 2014).

Doctor testified that the employee's symptoms were out of proportion to the physical findings, and it could be inferred that the trial court did not place great weight on the employee's description of his physical condition, to which the court deferred. Permenter v. Briggs & Stratton Corp., — S.W.3d —, 2015 Tenn. LEXIS 713 (Tenn. Sept. 8, 2015).

19. —Circumstantial Evidence.

Accidental death may be proved by circumstantial evidence. Tennessee Chemical Co. v. Smith, 145 Tenn. 532, 238 S.W. 97, 1921 Tenn. LEXIS 93 (1922).

The rule of reasonable inference where evidence is circumstantial is recognized. R. W. Hartwell Motor Co. v. Hickerson, 160 Tenn. 513, 26 S.W.2d 153, 1929 Tenn. LEXIS 127 (1930).

A finding or award under the statute may be based on circumstantial evidence and inferences drawn therefrom. Riley v. Knoxville Iron Co., 178 Tenn. 107, 156 S.W.2d 398, 1941 Tenn. LEXIS 37 (1941).

20. —Expert Opinions.

Where the cause of an existing condition or injury is in dispute, an expert's opinion may be admitted to the effect that a certain cause could or might produce the condition, but to permit him to testify as to what in his opinion probably did produce it would be error. Sanders v. Blue Ridge Glass Corp., 161 Tenn. 535, 33 S.W.2d 84, 1930 Tenn. LEXIS 40 (1930).

Where three medical witnesses introduced by defendant testified that the cause of cancer was purely speculative, that the idea that a blow could cause cancer had been advanced but never proven true and where medical witness for petitioner testified that medical science did not know that cancer will result from certain conditions or that it results from traumatic conditions, finding of the trial judge that the proof did not establish that cancer from which deceased worker died was caused by a blow on her breast sustained in the course of employment was proper. McBrayer v. Dixie Mercerizing Co., 178 Tenn. 135, 156 S.W.2d 408, 1941 Tenn. LEXIS 41 (1941).

If the trial judge in a workers' compensation case reaches a decision based upon the opinions of medical experts, there is no reason for the supreme court to disregard it as having no probative value. Boyd v. Young, 193 Tenn. 272, 246 S.W.2d 10, 1951 Tenn. LEXIS 354, 1951 Tenn. LEXIS 355 (1951).

An expert's opinion to the effect that a certain cause could or might aggravate a preexisting abnormal condition is competent evidence and exclusion of such testimony was prejudicial error. Ledford v. Miller Bros. Co., 194 Tenn. 467, 253 S.W.2d 552, 1952 Tenn. LEXIS 405 (1952).

Trial court may rely on testimony of one general practitioner as against the testimony of several experts, and supreme court must accept such finding of the trial court on appeal. General Shale Products Corp. v. Casey, 202 Tenn. 219, 303 S.W.2d 736, 1957 Tenn. LEXIS 383 (1957).

Trial judge is not obligated to accept statements of doctors but is entitled to examine all evidence in the case, both expert and nonexpert, to determine the extent of the disability. J. E. Greene Co. v. Bennett, 207 Tenn. 635, 341 S.W.2d 751, 1960 Tenn. LEXIS 503 (1960), overruled in part, Indiana Lumberman's Mut. Ins. Co. v. Ray, 596 S.W.2d 816, 1980 Tenn. LEXIS 434 (Tenn. 1980); Ward v. North American Rayon Corp., 211 Tenn. 535, 366 S.W.2d 134, 1963 Tenn. LEXIS 378 (1963); Fidelity & Casualty Co. v. Treadwell, 212 Tenn. 1, 367 S.W.2d 470, 1963 Tenn. LEXIS 393 (1963).

An expert's opinion that a certain accident “could or might” produce the injury for which compensation was sought is competent. Combustion Engineering Co. v. Blanks, 210 Tenn. 233, 357 S.W.2d 625, 1962 Tenn. LEXIS 428 (1962); Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964).

Testimony by physician as to possible ulceration of scar tissue on employee's forehead and as to possible inability of employee to lift his eyelids if this occurred was based on conjecture and should not have been considered in making award for head injuries. Maryland Casualty Co. v. Young, 211 Tenn. 1, 362 S.W.2d 241, 1962 Tenn. LEXIS 331 (1962).

The testimony of a physician as to the probable effect of an injury is admissible, but it must be shown that such result is reasonably certain and not a mere likelihood or possibility. Maryland Casualty Co. v. Young, 211 Tenn. 1, 362 S.W.2d 241, 1962 Tenn. LEXIS 331 (1962).

Chiropractor was competent to testify as to nerve interference in employee's spine, the subluxations of his vertebrae, the abnormal curvature of the spine and to express an opinion as to the probable causes and effects of these injuries but was not competent to testify as an expert as to occupational diseases or as to whether employee had silicosis. Ward v. North American Rayon Corp., 211 Tenn. 535, 366 S.W.2d 134, 1963 Tenn. LEXIS 378 (1963).

Testimony of optometrist as to vision of employee before and after acid was allegedly splashed in employee's eye was of probative value in measuring sight before and after accident but optometrist's testimony was not material evidence to support contention that loss of sight was due to accident since training of optometrist was in measuring of sight and not in diseases and injuries to the eye. American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W.2d 643, 1965 Tenn. LEXIS 573 (1965).

The question of whether or not trauma to worker's leg caused or contributed to a degenerative disease of the spinal cord would carry the finder of fact into a realm properly and peculiarly within the province of medical experts, and lay testimony on issue would be of no probative value. Ferguson v. Tennessee-Carolina Transp. Co., 221 Tenn. 557, 428 S.W.2d 783, 1968 Tenn. LEXIS 484 (1968).

Testimony by optometrist in workers' compensation suit that upon examination of employee's eye he found cloudiness of the retina, that such condition could cause reduction in vision and such cloudiness could result from acid burn such as employee had suffered in course of employment was properly admissible. Bowser-Briggs, Inc. v. Bennett, 224 Tenn. 565, 458 S.W.2d 792, 1970 Tenn. LEXIS 356 (1970).

The trial courts should give great weight to the testimony of the family doctor. A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141, 1970 Tenn. LEXIS 329 (1970).

Hypertension as a compensable condition must be established, if at all, by expert medical testimony. Floyd v. Travelers Ins. Co., 225 Tenn. 38, 463 S.W.2d 407, 1970 Tenn. LEXIS 376 (1970).

Chiropractor was not competent to testify outside the scope of his profession. Tom Still Transfer Co. v. Way, 482 S.W.2d 775, 1972 Tenn. LEXIS 358 (Tenn. 1972).

The fact that a chiropractor admitted that treatment of a fractured collar bone was beyond the scope of his profession did not affect the admissibility or relevance of his testimony with respect to the condition of employee's spine and the cause and effect of such condition. Smith v. Hale, 528 S.W.2d 543, 1975 Tenn. LEXIS 626 (Tenn. 1975).

A chiropractor is competent to testify as an expert as to matters within the limited scope of his profession. Smith v. Hale, 528 S.W.2d 543, 1975 Tenn. LEXIS 626 (Tenn. 1975).

It was harmless error to exclude testimony of doctor who testified that he was not an expert in that area of diagnosis and had little or no familiarity with the condition from which the employee was suffering, especially when a letter from such doctor explaining his conclusions as to the employee's illness was introduced without objection. Patterson v. Tucker Steel Co., 584 S.W.2d 792, 1979 Tenn. LEXIS 474 (Tenn. 1979).

Trial court erred when it found that an injured worker had not carried his burden of proving by a preponderance of the evidence that his back injury was work-related where the worker gave detailed testimony concerning the violent nature of the heavy equipment that he operated and that his pain began approximately 90 minutes after he began operating the compactor; and the worker's orthopedic surgeon stated that the injury was work-related; and where the surgeon's detailed history should have been given greater weight than the ER records. Conner Bros. Excavating Co. v. Long, 98 S.W.3d 656, 2003 Tenn. LEXIS 162 (Tenn. 2003).

Trial court did not err in granting an employer's motion for involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02 because an employee failed to sustain his burden of proof; the employee did not present expert medical testimony as to the causation and permanency of his injury. Douglas v. Ledic Realty Serv., — S.W.3d —, 2012 Tenn. LEXIS 964 (Tenn. Dec. 6, 2012), review denied, — S.W.3d —, 2013 Tenn. LEXIS 131 (Tenn. Feb. 13, 2013).

Evidence did not preponderate against the trial court's decision to base the award of permanent disability benefits on a doctor's impairment rating, and thus the award, based on the finding that the claimant suffered a seven percent permanent medical impairment as the result of her work-related injury, was affirmed; the doctor was certified in orthopedics and spoke annually on how to use certain guides in performing medical evaluations, he based his opinion initially on a review of the claimant's records, but altered his opinion after a personal examination of her, and the trial court had the chance to compare the findings of each medical expert. Payne v. UPS, — S.W.3d —, 2014 Tenn. LEXIS 1112 (Tenn. Dec. 30, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 1109 (Tenn. Dec. 30, 2014).

Both doctors opined that the employee's cubital tunnel syndrome was related to his work, the employer presented no countervailing evidence, and there was no basis to support a conclusion that the evidence preponderated against the trial court's finding on this issue. Permenter v. Briggs & Stratton Corp., — S.W.3d —, 2015 Tenn. LEXIS 713 (Tenn. Sept. 8, 2015).

Based on the record as a whole, the trial court did not abuse its discretion by adopting one doctor's cubital tunnel impairment rating over that of another doctor. Permenter v. Briggs & Stratton Corp., — S.W.3d —, 2015 Tenn. LEXIS 713 (Tenn. Sept. 8, 2015).

21. —Res Gestae.

Statements of deceased employee to his wife on returning home at night on date of accident and those to fellow employee a day or two thereafter are not admissible as part of the res gestae. Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717, 1928 Tenn. LEXIS 177 (1929).

Declarations, in action by dependents, subsequent to the accident, unless part of the res gestae, are inadmissible. Kennedy v. Columbian Casualty Co., 163 Tenn. 312, 43 S.W.2d 201, 1931 Tenn. LEXIS 118 (1931).

In proceedings for compensation for death of employee who died as a result of burns, testimony as to statements of worker when he ran from the building of his employer with his clothing on fire were admissible as part of the res gestae as showing how the accident occurred. Johnson v. Copeland, 178 Tenn. 431, 158 S.W.2d 986, 1941 Tenn. LEXIS 74 (1942).

22. —Hearsay.

Hearsay evidence, such as statements of what employee told witnesses as to cause of injuries, is inadmissible in compensation case. Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717, 1928 Tenn. LEXIS 177 (1929).

Employee's statement that he had no business at place of accident is inadmissible, in suit against liability insurer under the compensation statute for compensation for his death, such declaration, not part of res gestae, being mere hearsay and not a declaration against interest, since dependents and not insured have vested interest. Kennedy v. Columbian Casualty Co., 163 Tenn. 312, 43 S.W.2d 201, 1931 Tenn. LEXIS 118 (1931).

Clearly, if the finding of the trial judge in a compensation case was based on hearsay evidence, the case should be reversed. An injured employee must prove his case as any other lawsuit is proven. However, when hearsay evidence creeps in, but the finding of the trial judge is based on competent legal evidence, at most it is harmless error, and under § 27-1-117 (repealed; see T.R.A.P. 36 and Tenn. R. Crim. P. 52) a reversal should not be granted. Gulch Lumber Co. v. Fields, 193 Tenn. 365, 246 S.W.2d 47, 1952 Tenn. LEXIS 300 (1952); Fidelity & Casualty Co. v. Treadwell, 212 Tenn. 1, 367 S.W.2d 470, 1963 Tenn. LEXIS 393 (1963).

The general rule is that testimony of medical experts based on information obtained from blood tests, X-ray tests and the like not offered in evidence and made by third parties not appearing as witnesses has been considered inadmissible, but such technical rule is subject to many fluctuations depending on how the trial is conducted. Fidelity & Casualty Co. v. Treadwell, 212 Tenn. 1, 367 S.W.2d 470, 1963 Tenn. LEXIS 393 (1963).

23. —Dying Declarations.

Dying declarations of employee as to cause of accident are inadmissible in proceedings for compensation, the action being civil. Milne v. Sanders, 143 Tenn. 602, 228 S.W. 702, 1920 Tenn. LEXIS 48 (1921).

24. —Record in Criminal Case.

In suit for compensation, transcript of record in criminal case offered by employer to show that the accident involved was caused intentionally by fellow worker was inadmissible where petitioners were not parties thereto. Milne v. Sanders, 143 Tenn. 602, 228 S.W. 702, 1920 Tenn. LEXIS 48 (1921).

25. —Testimony as to Injuries Not Alleged.

The chancellor properly excluded testimony relating to injuries not alleged in the petition in a suit to recover compensation. Phillips v. Diamond Coal Mining Co., 175 Tenn. 191, 133 S.W.2d 476, 1939 Tenn. LEXIS 29 (1939).

26. —Sufficiency of Evidence.

Testimony of employee as to total loss of use of one ear is sufficient to support finding of 50 percent loss of the power of hearing. Diamond Coal Co. v. Jackson, 156 Tenn. 179, 299 S.W. 802, 1927 Tenn. LEXIS 100 (1927).

Injured employee's testimony, “Well I claim my eye is destroyed 50 percent of what it was, that is what I claim my eye is destroyed,” was sufficient to support a finding to the effect. Black Diamond Collieries v. Gibbs, 161 Tenn. 413, 32 S.W.2d 1041, 1930 Tenn. LEXIS 21 (1930).

Where there was ample evidence to sustain the finding of the trial court as to the bona fides of the relationship to and dependency on the deceased of those in favor of whom the award was made, the supreme court would not consider such question upon appeal. Johnson v. Copeland, 178 Tenn. 431, 158 S.W.2d 986, 1941 Tenn. LEXIS 74 (1942).

Where plaintiff injured his lower chest through fall in manhole and six days later developed high fever and went to physician and after being off work a week worked intermittently for a month and was thereafter operated upon for removal of his gall bladder, and was short of breath because of chest condition which could have resulted from gall bladder condition, evidence was sufficient to show connection between injury and disability where there was medical testimony that injury could have caused preexisting gall stones to be crushed against inside wall of gall bladder. Kitts v. American Mut. Liability Ins. Co., 133 F. Supp. 937, 1955 U.S. Dist. LEXIS 2971 (D. Tenn. 1955).

In action for death benefits, mere fact that deceased worker had been working in barge in temperature of over 100 degrees and complained of upset stomach was not sufficient to establish that deceased who died shortly after leaving work died as result of heat stroke, heat exhaustion or heart attack arising out of and in course of employment. Nashville Bridge Co. v. Todd, 199 Tenn. 311, 286 S.W.2d 861, 1956 Tenn. LEXIS 327 (1956).

Evidence supported verdict of trial court that complainant contracted silicosis while working in defendant's mine, that his condition grew progressively worse and that he was entitled to award of permanent total disability under § 50-6-207. Eggert v. Tennessee Products & Chemical Corp., 199 Tenn. 341, 286 S.W.2d 874, 1956 Tenn. LEXIS 331 (1956).

Evidence supported finding of trial court that worker was 50 percent disabled where employee described his physical condition in detail and made his own estimate that he was 75 percent disabled, notwithstanding that there was medical testimony to the contrary. Hamlin & Allman Iron Works v. Jones, 200 Tenn. 242, 292 S.W.2d 27, 1956 Tenn. LEXIS 402 (1956).

Where there were no witnesses to fall, evidence of defendant to show that fall was result of seizure instead of accident was insufficient and constituted no evidence whatsoever where doctor testifying for defendant stated that the probability was about 50-50 that the deceased suffered a seizure. Bledsoe County Highway Dep't v. Pendergrass, 205 Tenn. 697, 330 S.W.2d 313, 1959 Tenn. LEXIS 410 (1959).

If upon undisputed proof it is conjectural whether death resulted from a cause operating within decedent's employment or a cause operating without his employment there can be no award. Neas v. Snapp, 221 Tenn. 325, 426 S.W.2d 498, 1968 Tenn. LEXIS 468 (1968).

Compensation will not be awarded where the cause of death is a matter of speculation. Neas v. Snapp, 221 Tenn. 325, 426 S.W.2d 498, 1968 Tenn. LEXIS 468 (1968).

Where the only medical evidence offered was the report of a court-appointed physician which stated that patient had no objective signs of permanent disability, the court considered the evidence insufficient and the claim frivolous. Bishop Baking Co. v. Forgey, 538 S.W.2d 602, 1976 Tenn. LEXIS 493 (Tenn. 1976).

Weight of the evidence supported chancellor's finding that employee was not taking his pain medication prescribed for work-related back injury in accordance with directions; and hence, employee's death from medication overdose was not causally related to his employment. Simpson v. H.D. Lee Co., 793 S.W.2d 929, 1990 Tenn. LEXIS 281 (Tenn. 1990).

Trial court's finding of causation was supported by the evidence where two medical experts testified the back injury could have been work-related. Livingston v. Shelby Williams Industries, Inc., 811 S.W.2d 511, 1991 Tenn. LEXIS 138 (Tenn. 1991).

The presence of a long-standing diagnosis of one hearing loss condition and a very recent diagnosis of a different condition resulting from exposure to loud noise for many years was puzzling to the court; therefore, the evidence was insufficient to conclude that employee's hearing problem was “more probably than not” work related. Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 2000 Tenn. LEXIS 686 (Tenn. 2000).

Where the employee testified that she was injured while flipping a piece of wood and the medical records reflected her doctor's opinion that her back condition was work-related, the evidence was sufficient to establish a causal relationship between the employee's work activities and her back injury. Glisson v. Mohon Int'l, Inc., 185 S.W.3d 348, 2006 Tenn. LEXIS 180 (Tenn. 2006).

Evidence was sufficient to support the trial court's award of fifty percent to the left arm and forty-five percent to the right arm under T.C.A. § 50-6-225(e)(2) where the trial court considered surgeons'  deposition testimony, and a permanent weight-lifting restriction. A functional capacity evaluation was also considered, and a vocational expert opined that the claimant had a vocational disability of ninety-five percent. Cantrell v. Carrier Corp., 193 S.W.3d 467, 2006 Tenn. LEXIS 447 (Tenn. May 30, 2006).

Limitations period contained in T.C.A. § 50-6-203 did not bar an employee's claim for workers'  compensation benefits because the evidence did not preponderate against the trial court's finding that an employee could not have reasonably known or discovered that his post-traumatic stress disorder symptoms were related to work activities until his diagnosis. Gerdau Ameristeel, Inc. v. Ratliff, 368 S.W.3d 503, 2012 Tenn. LEXIS 401 (Tenn. June 7, 2012).

Evidence was sufficient to support a finding of permanent total disability because the trial court specifically accredited the employee's testimony as to his own limitations and the statements he made to the vocational experts, who agreed that the employee was unable to return to any of his previous employment positions; because the employee and vocational experts testified at trial, the trial court had a firsthand opportunity to assess their credibility. Hamilton v. Pemberton Truck Lines, Inc., — S.W.3d —, 2014 Tenn. LEXIS 564 (Tenn. July 16, 2014), aff'd, Hamilton v. Pemberton Trucking Lines, Inc., — S.W.3d —, 2014 Tenn. LEXIS 563 (Tenn. July 16, 2014).

Trial court did not err in awarding an employee additional permanent partial disability benefits because its findings complied with subsection(d)(2)(B) and provided a sufficient basis for the award; the trial court found that the employee was not terminated for misconduct, he could not perform physical labor, he had limited range of motion and periodic discomfort, since his termination the employee was employed for four months, earning less than half what he was making with the employer. Clay v. AT&T Mobility Servs., LLC, — S.W.3d —, 2014 Tenn. LEXIS 606 (Tenn. Aug. 8, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 605 (Tenn. Aug. 8, 2014).

Evidence did not preponderate against the trial court's finding that an employee's hip injury was compensable because the record did not support a conclusion that a requisite causal relationship existed between the employee's subsequent jobs and any change in her condition; the employee testified that her duties for each of her subsequent employers did not include the full gamut of potential activities for an electrician. Mattox v. Lawson Elec. Co., — S.W.3d —, 2014 Tenn. LEXIS 674 (Tenn. Sept. 25, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 673 (Tenn. Sept. 25, 2014).

Trial court did not err in granting an employee's motion for partial summary judgment concerning the reason for his termination and in awarding additional permanent disability benefits because the minutes of the employer's board meeting were conclusive evidence of the reason for the employee's termination, the parol testimony of some of the board members did not create a genuine issue of fact on the subject, and the evidence did not preponderate against the trial court's finding on the issue of disability. Hensley v. Cocke Farmers Coop., — S.W.3d —, 2015 Tenn. LEXIS 351 (Tenn. Apr. 27, 2015), aff'd, — S.W.3d —, 2015 Tenn. LEXIS 352 (Tenn. Apr. 27, 2015).

Evidence did not preponderate against the trial court's finding that an employee sustained a compensable injury to her hip where a treating physician provided a form stating that the hip condition was related to her work injury, the evaluating physician testified that the work injury caused a worsening of preexisting labral damage, and the employer presented no evidence that the work injury caused only a temporary aggravation of the hip. Alford v. HCA Health Servs., — S.W.3d —, 2015 Tenn. LEXIS 1057 (Tenn. Dec. 15, 2015).

Although the employee's proof of causation was uncertain, the evidence did not preponderate against the finding that a nerve dysfunction was related to the surgery and subsequent nerve blocks where the trial court specifically accredited the employee's testimony that her symptoms began after two nerve block injections and continued to the day of trial, her reports of the symptoms to the various physicians were consistent over time, and the evaluating physician found that the symptoms followed certain dermatomes, and he considered it unlikely that even a sophisticated patient could have deliberately misrepresented such symptoms. Alford v. HCA Health Servs., — S.W.3d —, 2015 Tenn. LEXIS 1057 (Tenn. Dec. 15, 2015).

27. Notice to Employer.

Where injured employee testified that she knew that she was required to give notice of an on-the-job injury, her failure to give notice until she was assured of the seriousness of her injury was reasonable. Talley v. Virginia Ins. Reciprocal, 775 S.W.2d 587, 1989 Tenn. LEXIS 344 (Tenn. 1989), rehearing denied, 775 S.W.2d 587, 1989 Tenn. LEXIS 406 (Tenn. 1989).

Trial court properly dismissed an employee's workers'  compensation claim because the employee failed to provide notice of her injury; there was nothing to suggest that any of the officials present knew or should have known that the employee had sustained an injury, and the evidence did not preponderate against the trial court's implicit finding that a telephone call the employee's her primary care physician made to the employer failed to provide the employer with actual knowledge of the injury. Nuchols v. Blount County, — S.W.3d —, 2014 Tenn. LEXIS 667 (Tenn. Sept. 19, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 672 (Tenn. Sept. 19, 2014).

28. Presumptions.

One presumption cannot be deduced from another but only from facts. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928).

In favor of petitioner there is a presumption of honesty and fidelity as against the contrary. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928).

Evidence did not preponderate against the trial court's findings that an employee's heart attack resulted from his employment because although the trial court erred in its application of the presumption contained in T.C.A. § 7-51-201(a)(1), its determination as to causation was unaffected by its consideration of the presumption; the trial court concluded that the employee had established causation through his testimony that the cardiac symptoms developed while he was engaged in an emotionally stressful and physically demanding arrest of a drug dealer on or about the date of the confrontation. Cunningham v. City of Savannah, — S.W.3d —, 2012 Tenn. LEXIS 145 (Tenn. Feb. 28, 2012), aff'd, — S.W.3d —, 2012 Tenn. LEXIS 146 (Tenn. Feb. 28, 2012).

29. Burden of Proof.

The burden is upon petitioner to prove averment that employer had the requisite number of employees to bring it within the application of this act. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927); Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

The burden of proof is on the employer to show that status of alleged employee was that of an independent contractor. Sledge v. Hunt, 157 Tenn. 606, 12 S.W.2d 529, 1928 Tenn. LEXIS 227 (1928).

The burden of proof is on the employer to show that injury was due to willful misconduct or intoxication. Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W.2d 860, 1928 Tenn. LEXIS 119 (1928).

The burden of proof is on the petitioner to show that his injury arose out of and in the course of his employment. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928); Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717, 1928 Tenn. LEXIS 177 (1929); Home Ice Co. v. Franzini, 161 Tenn. 395, 32 S.W.2d 1032, 1930 Tenn. LEXIS 18 (1930); Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87, 1947 Tenn. LEXIS 316 (1947).

Where failure to give notice of injury is pleaded, burden is on employee to prove that it was given. R. W. Hartwell Motor Co. v. Hickerson, 160 Tenn. 513, 26 S.W.2d 153, 1929 Tenn. LEXIS 127 (1930).

The burden of proof is on petitioner to show the extent of his disability. Sanders v. Blue Ridge Glass Corp., 161 Tenn. 535, 33 S.W.2d 84, 1930 Tenn. LEXIS 40 (1930).

There is a distinction between cases in which it appears that the employee can do light work of a general nature and those in which he is fitted to do odd jobs or special work not generally available. In the former, the burden is on petitioner to show inability to obtain employment, in the latter, on the employer to show that special work was available to petitioner. White v. Tennessee Consol. Coal Co., 162 Tenn. 380, 36 S.W.2d 902, 1930 Tenn. LEXIS 101 (1931).

Where petitioner, whose usual work is ordinary manual labor, has been permanently disabled for doing such usual strenuous work but not for doing light work of a general nature, the burden of proof is not on the employer to show that petitioner can procure such suitable work. Walker v. Blue Ridge Glass Corp., 165 Tenn. 287, 54 S.W.2d 722, 1932 Tenn. LEXIS 48 (1932); Lunsford v. A.C. Lawrence Leather Co., 189 Tenn. 293, 225 S.W.2d 66, 1949 Tenn. LEXIS 428 (1949).

It is a universal rule in workers' compensation cases, as in common-law actions for personal injuries and in civil actions generally, that the burden is on the claimant to prove his case in all its parts by a preponderance of the evidence. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

In action for death benefits, the burden of proof rests upon the petitioner to establish both that the death arose out of and in the course of the employment of the deceased. Nashville Bridge Co. v. Todd, 199 Tenn. 311, 286 S.W.2d 861, 1956 Tenn. LEXIS 327 (1956).

In order to recover, the claimant must prove that he is an employee, that he sustained an accidental injury and that the accident and injury grew out of and in the course of his employment. Travelers Ins. Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 1965 Tenn. LEXIS 543 (1965).

Independent review of the medical evidence led to the conclusion that the employee failed to sustain his burden of proof that a causal relationship existed between his work for the employer during the period of January through April of 2008 and the carpal tunnel syndrome diagnosed in April 2009. Permenter v. Briggs & Stratton Corp., — S.W.3d —, 2015 Tenn. LEXIS 713 (Tenn. Sept. 8, 2015).

30. —Proof Sustaining Burden.

Burden of showing death from accident arising out of and in course of employment is not sustained by proof that coal miner died from rupture of branch of one of coronary or anterior arteries of heart, which might have taken place under any circumstances. Battle Creek Coal & Coke Co. v. Martin, 155 Tenn. 34, 290 S.W. 18, 1926 Tenn. LEXIS 16 (1927).

31. —Shift of Burden.

Where employee has shown that a fire suddenly appeared in the workroom, which burned deceased, the burden is then shifted to the employer to show that it was intentionally set by a fellow servant. Milne v. Sanders, 143 Tenn. 602, 228 S.W. 702, 1920 Tenn. LEXIS 48 (1921).

The usual rules as to the shifting of the burden of proof apply. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928).

Circumstantial evidence of giving of notice shifts burden to employer to rebut such evidence. Roehl v. Graw, 161 Tenn. 461, 32 S.W.2d 1049, 1930 Tenn. LEXIS 30 (1930).

32. Questions of Fact.

Extent of disability resulting from injury is ordinarily a question of fact. Diamond Coal Co. v. Jackson, 156 Tenn. 179, 299 S.W. 802, 1927 Tenn. LEXIS 100 (1927); Fidelity & Casualty Co. v. Treadwell, 212 Tenn. 1, 367 S.W.2d 470, 1963 Tenn. LEXIS 393 (1963); Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

The filing of specific findings of fact in a compensation case is not mandatory on the part of chancery, circuit and criminal courts. Murray Ohio Mfg. Co. v. Vines, 498 S.W.2d 897, 1973 Tenn. LEXIS 463 (Tenn. 1973).

33. Examination of Injury by Judge.

Examination of petitioner's injury by trial judge not error. Wilkinson v. Johnson City Shale Brick Corp., 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1927 Tenn. LEXIS 130 (1928), modified, 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1928 Tenn. LEXIS 243 (1928).

The conclusions of the trial judge as to the condition of the injured employee as based upon his personal examination and observation of such employee at the trial are entitled to especial weight. United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184, 1937 Tenn. LEXIS 112 (Tenn. Mar. 7, 1938).

34. Hearing on Oral Testimony.

Chancery court properly heard compensation case on oral evidence. Income Life Ins. Co. v. Mitchell, 168 Tenn. 471, 79 S.W.2d 572, 1934 Tenn. LEXIS 79 (1935).

35. Matters Finally Determined by Trial Court.

The weight of evidence and the credibility of the witnesses are finally determined in the trial court. Benjamin F. Shaw Co. v. Musgrave, 189 Tenn. 1, 222 S.W.2d 22, 1949 Tenn. LEXIS 394 (1949); Graybeal v. Smith, 189 Tenn. 412, 225 S.W.2d 556, 1949 Tenn. LEXIS 447 (1949).

The credibility of a witness in a workers' compensation case is to be determined by the trial judge, and discrepancies in testimony are deemed settled by judgment unless there is something to show that such discrepancies originated in willful falsehood. Atlas Powder Co. v. Leister, 197 Tenn. 491, 274 S.W.2d 364, 1954 Tenn. LEXIS 514 (1954).

While medical causation and permanency of injury must be established by expert medical testimony, once they are established the trier of fact is not required to accept the medical opinion as to the extent of disability, but determines disability from all evidence, both expert and nonexpert. Holder v. Liberty Mut. Ins. Co., 587 S.W.2d 372, 1979 Tenn. LEXIS 503 (Tenn. 1979).

36. Amount of Award.

The trial court had no authority to limit an award or reconsider it based upon the result of employee's claim based on the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.). Black v. Liberty Mut. Ins. Co., 4 S.W.3d 182, 1999 Tenn. LEXIS 436 (Tenn. Special Workers' Comp. App. Panel 1999), aff'd, Black v. Liberty Mut. Ins. Co., 1999 Tenn. LEXIS 438 (Tenn. Sept. 24, 1999).

Trial court erred in ruling that weeks an injured employee spent on strike should be excluded from the employee's average weekly wage because time spent away from work due to a strike was a voluntary absence. Goodman v. HBD Indus., 208 S.W.3d 373, 2006 Tenn. LEXIS 991 (Tenn. 2006), cert. denied, 550 U.S. 918, 127 S. Ct. 2130, 167 L. Ed. 2d 863, 2007 U.S. LEXIS 4558 (2007).

Capping a workers'  compensation award of one and one-half times the medical impairment rating pursuant to T.C.A. § 50-6-241(d)(1)(A) was error because the employer neither returned the employee to work after the injury, nor offered him opportunity to return to work, nor ended his employment for misconduct; the inherently temporary nature of the employment was not relevant to the determination of which multiplier applied, because the statutory language neither drew a distinction between permanent and temporary employees nor permitted or required consideration of the employer's business practices. Britt v. Dyer's Empl. Agency, Inc., 396 S.W.3d 519, 2013 Tenn. LEXIS 82 (Tenn. Jan. 22, 2013).

36.5. Credits.

Employee was totally disabled by his spinal injuries from August 12, 2011 through February 6, 2012, and thus the evidence preponderated in favor of the trial court's determination that the employer was not entitled to the requested credit for the temporary total disability payments made after August 22, 2011. Collier v. McEvoy Funeral Home, Inc., — S.W.3d —, 2014 Tenn. LEXIS 1042 (Tenn. Dec. 29, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 1041 (Tenn. Dec. 29, 2014).

37. Interest on Award.

Interest on award of compensation from date of judgment is proper. A. G. S. R. Co. v. Wright, 175 Tenn. 138, 133 S.W.2d 457, 1939 Tenn. LEXIS 23 (1939).

Where the insurance carrier obtains an order that the funds be held in court pending the appeal, or where it otherwise obtains a formal or informal stay of execution, then interest should accrue on the unpaid judgment until the case is disposed of in the appellate court, unless the parties agree otherwise. Underwood v. Liberty Mut. Ins. Co., 782 S.W.2d 175, 1989 Tenn. LEXIS 542 (Tenn. 1989).

Where insurer paid amount of judgment into court, intending the funds to be held pending employee's appeal and final determination of insurer's liability, insurer's payment was not in satisfaction of the judgment and amounted to an informal attempt to stay the judgment, making the insurer liable for interest accruing on the funds at the rate specified in T.C.A. § 50-6-225. Underwood v. Liberty Mut. Ins. Co., 782 S.W.2d 175, 1989 Tenn. LEXIS 542 (Tenn. 1989).

When a workers' compensation case is appealed to the supreme court, interest is to be calculated from the date that the judgment or decree is entered, rather than from the date of the supreme court's modifying the award. McClain v. Henry I. Siegel Co., 834 S.W.2d 295, 1992 Tenn. LEXIS 471 (Tenn. 1992).

The interest on a workers' compensation judgment, pursuant to subsection (h) of T.C.A. § 50-6-225, is computed only on the amount of the judgment awarded for permanent partial and temporary total disability benefits which have accrued, and not amounts awarded for unaccrued permanent partial disability benefits and unpaid medical benefits. West Am. Ins. Co. v. Montgomery, 861 S.W.2d 230, 1993 Tenn. LEXIS 320 (Tenn. 1993).

Interest on the workers' compensation judgment should have been computed from the date judgment was entered, except there was no right to interest on the portion of the judgment represented by the installment payments until the date such installment was due. Woodall v. Hamlett, 872 S.W.2d 677, 1994 Tenn. LEXIS 47 (Tenn. 1994).

Neither T.C.A. § 50-6-225 nor T.C.A. §§ 47-14-121 and 47-14-122 authorize the payment of postjudgment interest to an employee on medical expenses initially paid by a third-party health insurance carrier and reimbursed to that carrier by the employer. Staggs v. National Health Corp., 924 S.W.2d 79, 1996 Tenn. LEXIS 354 (Tenn. 1996).

Nothing reflected that any dispute regarding post-judgment interest was raised in the trial court, and if such a dispute was to arise, it was to be presented to and addressed by the trial court. Collier v. McEvoy Funeral Home, Inc., — S.W.3d —, 2014 Tenn. LEXIS 1042 (Tenn. Dec. 29, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 1041 (Tenn. Dec. 29, 2014).

38. Costs.

In a suit under this act for compensation in which the right to recover is admitted except for the bar of the statutory limitation, costs may be adjudged against the successful employer on appeal to the supreme court. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

On appeal by insurer in which such insurer was for the most part successful on its appeal but where the question involved was one of basic construction of the statute in which the insurer was substantially interested, the costs of the appeal were adjudged against the insurer rather than the employee. Bituminous Casualty Corp. v. Smith, 200 Tenn. 13, 288 S.W.2d 913, 1956 Tenn. LEXIS 372 (1956).

The statute does not authorize the payment by the employer for the charges made by a person because of his testimony as an expert witness and such charge against the employer is not authorized in absence of statute. American Casualty Ins. Co. v. White, 207 Tenn. 294, 339 S.W.2d 15, 1960 Tenn. LEXIS 458 (1960).

39. New Trial.

The question whether recovery can be had for injury under the compensation statute is properly presented in motion for new trial under assignment that there was no evidence to sustain the judgment. Meade Fiber Corp. v. Starnes, 147 Tenn. 362, 247 S.W. 989, 1922 Tenn. LEXIS 48 (1923).

Where findings of fact in record in compensation case fail to show that defendant employed at least five at time of accident and show inferentially that application of the compensation statute to the contract of employment was not contested or controverted, new trial is required on reversal of judgment denying compensation. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

Employee's contention that he was infected by squeezing pimple affords no basis for claim of surprise warranting grant of new trial to permit introduction of medical testimony where petition avers that infection began in that way. Hartford Acci. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904, 1928 Tenn. LEXIS 76 (1929).

Issues as to amount of burial expenses of deceased employee and as to whether or not wife of employee was living separate and apart were distinct and severable from issue of liability, and it was within the discretion of trial court to grant a rehearing limited to those two issues alone. Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940, 1964 Tenn. LEXIS 454 (1964).

It would not be error for a trial judge, while the case remained in the bosom of the court, to grant a new trial upon newly discovered evidence which was cumulative and only strengthened prior testimony; however, it was not reversible error for the trial judge to refuse to do so. Freemon v. VF Corp., Kay Windsor Div., 675 S.W.2d 710, 1984 Tenn. LEXIS 844 (Tenn. 1984).

40. Motion For New Trial.

The 1969 amendment abolishing the requirement of a motion for a new trial as condition precedent to an appeal was applied to a case filed prior to its effective date since such amendment was procedural in nature and did not affect vested rights of the parties. Escue v. Lux Time Div., 225 Tenn. 533, 472 S.W.2d 228, 1971 Tenn. LEXIS 321 (1971).

A motion for new trial in a workers' compensation case may be summarily disposed of in the discretion of the trial judge, with or without a hearing. De Long v. Pans Hans Properties, 626 S.W.2d 697, 1982 Tenn. LEXIS 376 (Tenn. 1982).

41. Appeal and Review.

Court of appeals has jurisdiction of appeal of employer from judgment for physician for services to employee under contract, such case not involving workers' compensation. Knox Stove Works v. Hodge, 154 Tenn. 187, 289 S.W. 505, 1926 Tenn. LEXIS 115 (1926).

Discretionary appeal from the overruling of a demurrer to petitioner's pleadings was improvidently granted since the policy of the law is for a speedy trial on the issues of liability. Stovall v. General Shoe Corp., 204 Tenn. 358, 321 S.W.2d 559, 1959 Tenn. LEXIS 288 (1959).

Where there is conflicting evidence, the appellate court must view the evidence in the light most favorable to the party that prevailed in the trial court. Bearden v. Memphis Dinettes, Inc., 690 S.W.2d 862, 1984 Tenn. LEXIS 818 (Tenn. 1985); Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Since the trial court awarded claimant compensation for 100 percent permanent and total disability and medical care, the insurer's appeal was not frivolous or taken solely for the purpose of delay as the issues regarding the claimant's emotional problems were very close. Batson v. Cigna Prop. & Cas. Cos., 874 S.W.2d 566, 1994 Tenn. LEXIS 332 (Tenn. Special Workers' Comp. App. Panel 1994).

The supreme court rejected the special worker's compensation panel's recommendation to reduce the trial court's award of compensation where the evidence did not preponderate against the trial court's assessment. Collins v. Howmet Corp., 970 S.W.2d 941, 1998 Tenn. LEXIS 343 (Tenn. 1998).

In a workers' compensation appeal, the employer contended that because the statistical data (SD1) form was not filed “contemporaneously” with the judgment, the time for filing the notice of appeal began when the SD1 form was filed (November 7, 2001) and not July 13, 2001, the date the judgment was entered. The appellate court held that while the statistical data (SD1) form had to be filed in accordance with T.C.A. § 50-6-244(a), to the extent T.C.A. § 50-6-244(a) conflicted with the 30-day time limit prescribed by T.R.A.P. 4, T.R.A.P. 4 controlled; therefore, the workers' compensation judgment was final on the date of entry stamped by the trial court clerk whether or not it was filed contemporaneously with the SD1 form, and the employer's appeal, filed 34 days after the judgment was entered, was untimely. Corum v. Holston Health & Rehab. Ctr., 104 S.W.3d 451, 2003 Tenn. LEXIS 338 (Tenn. 2003).

In an appeal from the denial of an employee's motion to set aside a judgment approving a workers'  compensation settlement, the employer was not entitled to damages for a frivolous appeal because the employee's argument was not so devoid of merit that it had no reasonable chance of succeeding and was not taken solely for the purpose of delay. Henderson v. Saia, Inc., 318 S.W.3d 328,  2010 Tenn. LEXIS 678 (Tenn. Aug. 24, 2010), rehearing denied, Henderson v. SAIA, Inc., — S.W.3d —, 2010 Tenn. LEXIS 866 (Tenn. Sept. 8, 2010).

Workers'  compensation award based on a claimant's workplace smoke inhalation was error because the claimant suffered from bulla emphysema from his cigarette smoking, and the evidence preponderated against a finding that the workplace smoke inhalation advanced the claimant's preexisting bulla emphysema; there was no evidence that the claimant's breathing limits were the direct result of damage to his remaining lung tissue caused by smoke he inhaled at the workplace and the plain meaning of the expert testimony was that the surgery was performed to treat the bullous emphysema and not the smoke inhalation. Although one doctor stated that the smoke inhalation contributed to and aggravated the claimant's emphysema, he did not state that the smoke inhalation itself advanced the severity of the claimant's preexisting condition or cause a new distinct injury. McGowan v. State, — S.W.3d —, 2012 Tenn. LEXIS 65 (Tenn. Feb. 15, 2012), review denied, — S.W.3d —, 2012 Tenn. LEXIS 70 (Tenn. Feb. 15, 2012).

Finding that an employee established causation for his injury arising from a spinal infection was proper based on the expert medical testimony; the claimant's treating surgeon stated that trauma could have been a “participating” or “contributing” factor in the development of infection and that the claimant's medical history made him more vulnerable to an infection. A second doctor testified unequivocally that the claimant's injury at work led to a hematoma, which then served as a “breeding ground” for his spinal infection, and, although the second doctor's testimony was more equivocal as to causation, he testified that the work-related injury “more likely” aggravated an ongoing infection. Stewart v. Westfield Ins. Co., — S.W.3d —, 2012 Tenn. LEXIS 66 (Tenn. Feb. 16, 2012), aff'd, — S.W.3d —, 2012 Tenn. LEXIS 67 (Tenn. Feb. 16, 2012).

Finding for a claimant on a notice issue in a workers'  compensation case was proper because the claimant testified that he told the employer's apartment manager of his injury immediately after it happened and that she told him she would notify her supervisor; although the manager disputed this, the trial court accredited the claimant's testimony and the evidence did not preponderate against the trial court's finding on the notice issue. Stewart v. Westfield Ins. Co., — S.W.3d —, 2012 Tenn. LEXIS 66 (Tenn. Feb. 16, 2012), aff'd, — S.W.3d —, 2012 Tenn. LEXIS 67 (Tenn. Feb. 16, 2012).

Worker's compensation award arising out of an employee's fall at work was affirmed because the evidence did not preponderate against the trial court's conclusion that the employee sustained a compensable injury arising out of her employment for purposes of T.C.A. § 50-6-103(a); the employee stated that her foot “stuck” and that her inability to lift her foot interrupted her gait, causing her to fall, and, although the employee conceded that it was “speculation” as to what, if any, substance was on the floor, the trial court accredited her testimony that the fall had occurred as she described and found that the hazard was incident to her employment. Although the employer's witnesses testified that they found no substance on the floor or any irregularity in the floor, the trial court concluded that the nursing staff could have tracked away whatever substance was present on the floor. Vandall v. Aurora Healthcare, LLC, 401 S.W.3d 28, 2013 Tenn. LEXIS 426 (Tenn. Apr. 24, 2013).

In a workers' compensation case, the trial court did not err in entering a judgment in the employer's favor finding that the employee did not sustain a compensable injury but only aggravated a pre-existing condition because the record clearly reflected that the employee had end-stage arthritis of both knees; knee replacement surgery had been recommended to her as early as 2005, nearly four years before the event at issue in the current case; the condition was not asymptomatic, as she had received medical treatment for it; and two doctors both expressed the opinion that the work accident caused only a temporary exacerbation of the pre-existing arthritic condition. Poindexter v. Roadway Express, — S.W.3d —, 2014 Tenn. LEXIS 695 (Tenn. Sept. 29, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 678 (Tenn. Sept. 29, 2014).

Evidence did not preponderate against the trial court's finding that the employee did not suffer a compensable injury, as there was no objective evidence that he suffered an acute injury on either of two dates that aggravated or exacerbated his preexisting degenerative disc disease. Gamble v. Mid-State Indus. Supply, — S.W.3d —, 2015 Tenn. LEXIS 733 (Tenn. Sept. 3, 2015), aff'd, Gamble v. Mid-State Indus. Supply, — S.W.3d —, 2015 Tenn. LEXIS 732 (Tenn. Sept. 3, 2015).

42. —Errors of Law.

Errors of law are reviewable in the supreme court without limitation. Smith v. Norris, 218 Tenn. 329, 403 S.W.2d 307, 1966 Tenn. LEXIS 571 (1966).

43. —Written Findings of Trial Judge — Use on Appeal.

Where evidence introduced in circuit court was not preserved by bill of exceptions in compensation case, the merits of the assignments of error are to be tested on appeal by written findings of fact and written opinion of trial judge showing conclusions of law on facts found. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

When a trial court has heard the medical proof but intends to rule in the employer's favor on a ground precluding all recovery, the court should also make contingent findings concerning the extent the employee would otherwise be entitled to recover. By so doing, the necessity for a remand is obviated in the event the appellate court strikes the employer's defense. Braden v. Sears, Roebuck & Co., 833 S.W.2d 496, 1992 Tenn. LEXIS 537 (Tenn. 1992).

44. —Matters Not Raised in Trial Court — Status on Appeal.

The trial court will not be put in error for matters not called to his attention and which he was given no opportunity to correct. Mullins v. Tennessee Stave & Lumber Co., 155 Tenn. 132, 290 S.W. 975, 1926 Tenn. LEXIS 27 (1927).

An award under the compensation statute cannot be increased on appeal where no such question was presented for the consideration of the trial court and where the appeal was not on behalf of the petitioner below. International Harvester Co. v. Scott, 163 Tenn. 516, 43 S.W.2d 1065, 1931 Tenn. LEXIS 142 (1931).

Contention by defendant that he never had as many as five employees in his business could not be passed upon by supreme court where it was not made a defense in suit below in defendant's answer to petition. Jones v. Corder, 196 Tenn. 478, 268 S.W.2d 359, 1954 Tenn. LEXIS 409 (1954).

45. —Amendment in Appellate Court.

On appeal, supreme court in compensation case had no power to permit amendment in that court of answer filed in circuit court so as to aver that notice of injury was not given. Central Franklin Process Co. v. Gann, 175 Tenn. 267, 133 S.W.2d 503, 1939 Tenn. LEXIS 38 (1939).

46. —Judgment on Appeal or Reversal and Remand.

Where chancellor's dismissal of petition for compensation is reversed by the supreme court, and there is no controversy as to the amount of wages earned by the deceased employee, the supreme court may enter judgment, but if it sees that injustice will be done thereby, and the case so requires, there will be reversal and remand. Sledge v. Hunt, 157 Tenn. 606, 12 S.W.2d 529, 1928 Tenn. LEXIS 227 (1928).

Where insurer appealed compensation award and obtained a modification thereof, supreme court could modify judgment against employer to such extent as was necessary to prevent the insurer from paying by reason of such judgment an amount in excess of that to which the insurer was liable under the decision of the supreme court, even though employer did not join in the appeal. Bituminous Casualty Corp. v. Smith, 200 Tenn. 13, 288 S.W.2d 913, 1956 Tenn. LEXIS 372 (1956).

Where an employee injured her shoulder while participating in races during an employer-sponsored company picnic, the injury did not occur in the course of her employment; the picnic was held on a Saturday, outside of work hours, at a public park off of the company's premises; the trial court erred by awarding her claim for benefits under the workers'  compensation law. Phyllis A. Young v. Taylor-white, LLC., 181 S.W.3d 324, 2005 Tenn. LEXIS 853 (Tenn. Oct. 20, 2005).

47. —Remand.

Where complete justice could not be done in workers' compensation case in absence of medical testimony as to employee's permanent disability, the case would be remanded for proof on issue of permanence of disability and since that issue was so inextricably entwined with that of the extent of any permanent disability the later issue would also be reopened on remand. Floyd v. Tennessee Dickel Distilling Co., 225 Tenn. 65, 463 S.W.2d 684, 1971 Tenn. LEXIS 277 (1971).

Since permanent partial disability would not begin until temporary total disability ended, the two issues were so inextricably entwined that to reopen one on remand necessarily amounted to reopening of the other. P. R. Mallory & Co. v. Ramsey, 566 S.W.2d 859, 1978 Tenn. LEXIS 562 (Tenn. 1978).

48. —Standard of Review.

The 1985 amendment to T.C.A. § 50-6-225 replaced the “material evidence” standard of appellate review with a new standard, that review of the findings of fact by the trial court shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Alley v. Consolidation Coal Co., 699 S.W.2d 147, 1985 Tenn. LEXIS 562 (Tenn. 1985); Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989); Landers v. Fireman's Fund Ins. Co., 775 S.W.2d 355, 1989 Tenn. LEXIS 347 (Tenn. 1989), rehearing denied, 775 S.W.2d 355, 1989 Tenn. LEXIS 411 (Tenn. 1989); Sims v. Bituminous Casualty Corp., 798 S.W.2d 751, 1990 Tenn. LEXIS 409 (Tenn. 1990); Whiteside v. Morrison, Inc., 799 S.W.2d 213, 1990 Tenn. LEXIS 424 (Tenn. 1990); Elmore v. Travelers Ins. Co., 824 S.W.2d 541, 1992 Tenn. LEXIS 44 (Tenn. 1992).

The new standard of review embraced in the 1985 amendment to T.C.A. § 50-6-225, relating to de novo review and a presumption of correctness, is to be applied prospectively, that is, to workers' compensation causes of action which arise on and after July 1, 1985. Alley v. Consolidation Coal Co., 699 S.W.2d 147, 1985 Tenn. LEXIS 562 (Tenn. 1985).

For case arising prior to July 1, 1985, the standard of review is whether there is any material evidence to support the findings of the trial court. Helton v. Food Lion, Inc., 738 S.W.2d 626, 1987 Tenn. LEXIS 995 (Tenn. 1987).

The new standard of review differs from that previously provided and requires the supreme court to weigh in more depth factual findings and conclusions of trial judges in workers' compensation cases. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 1988 Tenn. LEXIS 9 (Tenn. 1988); Bradford v. Travelers Indem. Co., 762 S.W.2d 572, 1988 Tenn. LEXIS 254 (Tenn. 1988); Landers v. Fireman's Fund Ins. Co., 775 S.W.2d 355, 1989 Tenn. LEXIS 347 (Tenn. 1989), rehearing denied, 775 S.W.2d 355, 1989 Tenn. LEXIS 411 (Tenn. 1989).

For work-related injury occurring after July 1, 1985, review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Simpson v. H.D. Lee Co., 793 S.W.2d 929, 1990 Tenn. LEXIS 281 (Tenn. 1990).

A worker's compensation appeal from a summary judgment order is not controlled by the de novo standard of review provided by subsection (e) of T.C.A. § 50-6-225; rather, it is governed by Rule 56, Tenn.R.Civ.P.Downen v. Allstate Ins. Co., 811 S.W.2d 523, 1991 Tenn. LEXIS 196 (Tenn. 1991).

The standard of review by the supreme court in workers' compensation cases requires it to examine in depth a trial court's factual findings and conclusions and it is not bound by a trial court's factual findings, but instead conducts an independent examination to determine where the preponderance of the evidence lies. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Trial court's award of workers' compensation must be affirmed unless the evidence preponderates against the ruling of the trial court. White v. Werthan Industries, 824 S.W.2d 158, 1992 Tenn. LEXIS 27 (Tenn. 1992).

The scope of review by the state supreme court pursuant to subsection (e) of T.C.A. § 50-6-225 is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings below, unless the preponderance of the evidence is otherwise. Perry v. Knoxville, 826 S.W.2d 114, 1991 Tenn. LEXIS 431 (Tenn. 1991).

A workers' compensation case appealed from a summary judgment order is not controlled by the de novo standard of review contained in T.C.A. § 50-6-225; rather, it is governed by the standard of review for summary judgment disposition under Tenn.R.Civ.P., Rule 56. Clevinger v. Burlington Motor Carriers, 925 S.W.2d 518, 1996 Tenn. LEXIS 462 (Tenn. Special Workers' Comp. App. Panel 1996).

Under the de novo standard of review by the state supreme court pursuant to subsection (e) of T.C.A. § 50-6-225, the supreme court is no longer strictly bound by the findings of the trial court in workers' compensation cases, and it is obliged to review the record on its own to determine where the preponderance of the evidence lies. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 2000 Tenn. LEXIS 298 (Tenn. 2000).

The Tennessee supreme court may draw its own conclusions about the weight and credibility of expert testimony when the medical proof is presented by deposition since it is in the same position as the trial judge to evaluate such testimony; however, when issues regarding credibility of witnesses and the weight to be given their testimony are before a reviewing court, considerable deference must be accorded the trial court's factual findings. Houser v. Bi-Lo, Inc., 36 S.W.3d 68, 2001 Tenn. LEXIS 54 (Tenn. 2001).

When a special master was appointed to preside over workers' compensation cases, but did not preside over the hearings, and drafted orders for the chancellor's signature that were not in accordance with the chancellor's notes, the appellate court applied a de novo review before reversing the orders. Reece v. Findlay Indus., 83 S.W.3d 713, 2002 Tenn. LEXIS 378 (Tenn. 2002).

Workers' compensation cases are reviewed de novo upon the record of the trial court accompanied by a presumption of correctness unless the evidence preponderates otherwise, under T.C.A. § 50-6-225(e)(2); under this standard a reviewing court is required to weigh in more depth the factual findings and conclusions of a trial court in workers' compensation cases. Additionally, the supreme court is not bound by the factual findings of the trial court, but may review the record on its own to determine where the preponderance of the evidence lies. Conner Bros. Excavating Co. v. Long, 98 S.W.3d 656, 2003 Tenn. LEXIS 162 (Tenn. 2003).

Evidence preponderated against an award of 11 percent permanent partial disability and preponderated in favor of an award of 70 percent permanent partial disability to the whole body, because: (1) The employee was 50-years old at the time of trial and testified that all of his prior work experience had involved maintenance engineering, a field that required frequent and often strenuous physical exertion and that he was no longer able to work in this field; (2) It was undisputed that the employee never returned to work at a wage equal to or greater than the wage he was receiving at the time of his injury; and (3) A vocational expert opined that the employee was permanently and totally disabled, but that the employee would be able to work in some capacity. Hickman v. Cont'l Baking Co., 143 S.W.3d 72, 2004 Tenn. LEXIS 703 (Tenn. 2004).

Appellate court affirmed thirty weeks of permanent disability for the loss of an employee's right, great toe following an injury pursuant to a de novo review with a presumption of correctness because an injury to the toe was controlled by T.C.A. § 50-6-207(3)(A)(ii)(h), and the employee did not present evidence that the injury went beyond the toe. Price v. Tipton Steel Erectors, Inc., — S.W.3d —, 2006 Tenn. LEXIS 600 (Tenn. July 7, 2006).

Appellate court conducted a de novo review of the trial court's decision pursuant to T.C.A. § 50-6-225(e)(2) and affirmed the trial court's order as, inter alia, the pain in the employee's shoulder had steadily increased since the initial injury, and the employee had had no other injuries to his shoulder since the original injury. Fitzgerald v. Btr Sealing Sys. North America-Tennessee Operations, 205 S.W.3d 400, 2006 Tenn. LEXIS 899 (Tenn. Oct. 12, 2006).

Supreme court of Tennessee held that the standard of review under T.R.A.P. 13(d) is identical to the standard of review provided for workers'  compensation cases, which is set forth in T.C.A. § 50-6-225(e)(2). Bldg. Materials Corp. v. Britt, 211 S.W.3d 706, 2007 Tenn. LEXIS 21 (Tenn. 2007).

Trial court had two differing accounts of the crucial events before it, and had the opportunity to observe the demeanor of the witnesses, and thus the trial court's determination that the employee was credible, and its acceptance of his description of events was entitled to deference; the evidence did not preponderate against the finding that the employee did not voluntarily resign and that he was unable to return to work as a result of his injury. Collier v. McEvoy Funeral Home, Inc., — S.W.3d —, 2014 Tenn. LEXIS 1042 (Tenn. Dec. 29, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 1041 (Tenn. Dec. 29, 2014).

Trial court was presented with conflicting expert medical opinions, all of which were based on a combination of known facts, assumptions, and medical uncertainties, plus the employee had no medical history of pulmonary issues, cigarette smoking, or lung-related illness prior to being exposed to fumes from a chemical fungicide while at work; all reasonable doubts as to the causation of an injury and whether the injury arose out of employment were to be resolved in favor of the employee, and thus the judgment in the employee's favor was affirmed. Peek v. Tri-green Equip., LLC, — S.W.3d —, 2014 Tenn. LEXIS 1111 (Tenn. Dec. 30, 2014), aff'd, Peek v. Tri-Green Equip., LLC, — S.W.3d —, 2014 Tenn. LEXIS 1108 (Tenn. Dec. 30, 2014).

Evidence did not preponderate against the conclusion that the employee sustained a permanent anatomical impairment and vocational disability as a result of high levels of noise, and although the American Medical Association Guides do not address the effect of hearing loss at levels higher than 3000 hertz, there was support for the determination that expert testimony established a means to do so; the trial court accepted both the method the doctor used to ascertain hearing impairment at the higher frequencies and the employee's testimony that his hearing loss affected his ability to hear normal speech, and sufficient evidence supported the award. Lambdin v. Goodyear Tire & Rubber Co., 468 S.W.3d 1, 2015 Tenn. LEXIS 94 (Tenn. Jan. 29, 2015).

Employee claimed that the trial court erred by finding him not credible and consequently finding that there was no exacerbation of his preexisting back injury, but despite the deferential standard of review for live testimony, the court still had to independently assess the preponderance of the evidence, and the evidence did not preponderate against the trial court's findings on the employee's credibility, in part as multiple doctors found signs of symptom magnification or malingering. Gamble v. Mid-State Indus. Supply, — S.W.3d —, 2015 Tenn. LEXIS 733 (Tenn. Sept. 3, 2015), aff'd, Gamble v. Mid-State Indus. Supply, — S.W.3d —, 2015 Tenn. LEXIS 732 (Tenn. Sept. 3, 2015).

49. Judicial Review.

Trial court did not have subject matter jurisdiction over an employer's suit seeking review of an order for medical benefits directing it to provide the employee with additional panels of physicians from which he could choose for treatment because the suit was filed before the administrative review process was exhausted; the employer's complaints had to first be addressed via the benefit review conference process, after which the employer had a right to a judicial hearing. Alstom Power, Inc. v. Head, — S.W.3d —, 2012 Tenn. App. LEXIS 107 (Tenn. Ct. App. Feb. 21, 2012).

50. Exhaustion of Remedies.

Trial court lacked subject matter jurisdiction over a workers'  compensation complaint since an employee failed to exhaust her administrative remedies as required by T.C.A. §§ 50-6-203(a) and 50-6-225(a)(1) as she bypassed the benefit review conference process after the Tennessee Department of Labor (TDOL) did not act promptly on her request for assistance under T.C.A. § 50-6-238; the employee had alternatives other than filing suit to prompt TDOL to act, including additional contact with the specialist, contact with the Administration of the Tennessee Division (now Bureau) of Workers Compensation, or, as a last resort, filing a mandamus action. Chapman v. Davita, Inc., 380 S.W.3d 710, 2012 Tenn. LEXIS 643 (Tenn. Sept. 21, 2012).

Although the Tennessee Workers'  Compensation Act, T.C.A. § 50-6-101 et seq., was a remedial statute and was to be equitably construed under T.C.A. § 50-6-116, an employee's administrative remedies were not effectively exhausted for T.C.A. §§ 50-6-203(a) and 50-6-225(a)(1) purposes by the Tennessee Department of Labor's long period of inaction on the employee's request for assistance under T.C.A. § 50-6-238. Chapman v. Davita, Inc., 380 S.W.3d 710, 2012 Tenn. LEXIS 643 (Tenn. Sept. 21, 2012).

Collateral References.

Admissibility of opinion evidence as to employability on issue of disability in health and accident insurance and workers' compensation cases. 89 A.L.R.3d 783.

“And/or,” used in finding. 118 A.L.R. 1376, 154 A.L.R. 866.

Decision of workers' compensation commission as affected by nonparticipation of one or more members because of death, absence, or resignation. 148 A.L.R. 327.

Matters concluded, in action at law to recover for the same injury, by decision or finding made in workers' compensation proceeding. 84 A.L.R.2d 1036.

Necessity, form, and contents of findings of fact to support administrative determinations relating to workers' compensation. 146 A.L.R. 123.

Neutral physician appointed in proceeding under Workers' Compensation Act, rights as to examination or cross-examination of, and as to opportunity to introduce further testimony to controvert or support his testimony. 109 A.L.R. 598.

Notice of accident or injury, finding as to. 78 A.L.R. 1281, 92 A.L.R. 505, 107 A.L.R. 816, 145 A.L.R. 1263.

Personal injury, effect of finding or order on claim for, in proceedings on claim for compensation for death. 88 A.L.R. 1179.

Recovery for discharge from employment in retaliation for filing worker's compensation claim. 32 A.L.R.4th 1221.

Res judicata as regards decisions under Workers' Compensation Acts. 122 A.L.R. 550.

Rules for examination of witness which obtain in court trials, disregard of, as affecting conclusiveness of decision of commissioner or arbitrator. 87 A.L.R. 777.

Workers' compensation: law enforcement officer's recovery for injury sustained during exercise or physical recreation activities. 44 A.L.R.5th 569.

50-6-226. Fees of attorneys and physicians, and hospital charges.

    1. The fees of attorneys for services to employees under this chapter, shall be subject to the approval of the workers' compensation judge before which the matter is pending, as appropriate; provided, that no attorney's fees to be charged employees shall be in excess of twenty percent (20%) of the amount of the recovery or award to be paid by the party employing the attorney. The department shall deem the attorney's fee to be reasonable if the fee does not exceed twenty percent (20%) of the award to the injured worker, or, in cases governed by § 50-6-207(4), twenty percent (20%) of the first four hundred fifty (450) weeks of the award. All attorney's fees for attorneys representing employers shall be subject to review for reasonableness of the fee and shall be subject to approval by a workers' compensation judge when the fee exceeds ten thousand dollars ($10,000).
      1. Medical costs that have been voluntarily paid by the employer or its insurer shall not be included in determining the award for purposes of calculating the attorney's fee.
      2. [Deleted by 2013 amendment, effective July 1, 2014.]
      3. In cases that proceed to trial, an employee’s attorney shall file an application for approval of a proposed attorney’s fee. Where the award of an attorney’s fee exceeds ten thousand dollars ($10,000), the court shall make specific findings as to the factors that justify the fee as provided in Tennessee Supreme Court Rule 8, RPC 1.5.
      4. The final order or settlement in all workers' compensation cases shall set out the attorney portion of the award in both dollar and percentage terms and the required findings.
    2. In accident cases that result in death of an employee, the plaintiff's attorney's fees shall not exceed reasonable payment for actual time and expenses incurred when the employer makes a voluntary settlement offer in writing to dependents or survivors eligible under § 50-6-210 within thirty (30) days of the employee's death if the employer offers to provide the dependents or survivors with all the benefits provided under this chapter. The approving authority shall review and approve the settlements on an expedited basis.
    3. The fees of physicians and charges of hospitals for services to employees under this chapter, shall be subject to the approval of the administrator or the court before which the matter is pending, as appropriate, as provided in this subdivision (a)(4). Unless a medical fee or charge is contested, the department shall deem it to be reasonable. If a fee or charge is contested, the department shall permit a party to seek review only of the contested fee or charge in any court with jurisdiction to hear a matter pursuant to § 50-6-237. A court may review the case solely for the purpose of approving the fees and charges that are reasonable.
  1. The charging or receiving of any fee by an attorney in violation of subsection (a) shall be deemed unlawful practice and render the attorney liable to disbarment; and, further, the attorney shall forfeit double the entire amount retained by the attorney, to be recovered as in case of debt by the injured person or the injured person's creditor.
    1. The fees charged to the claimant by the treating physician or a specialist to whom the employee was referred for giving testimony by oral deposition relative to the claim shall, unless the interests of justice require otherwise, be considered a part of the costs of the case, to be charged against the employer when the employee is the prevailing party.
    2. The workers' compensation judge shall have the discretion to determine the reasonableness of the fee charged by any physician pursuant to this subsection (c).
    3. This subsection (c) applies only to workers' compensation actions arising on or after July 1, 1988.
    1. In addition to attorneys' fees provided for in this section, the court of workers' compensation claims may award reasonable attorneys' fees and reasonable costs, including, but not limited to, reasonable and necessary court reporter expenses and expert witness fees for depositions and trials, incurred when the employer:
      1. Fails to furnish appropriate medical, surgical, and dental treatment or care, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus to an employee provided for in a settlement, expedited hearing order, compensation hearing order, or judgment under this chapter; or
      2. Wrongfully denies a claim or wrongfully fails to timely initiate any of the benefits to which the employee or dependent is entitled under this chapter, including medical benefits under § 50-6-204, temporary or permanent disability benefits under § 50-6-207, or death benefits under § 50-6-210 if the workers' compensation judge makes a finding that the benefits were owed at an expedited hearing or compensation hearing. For purposes of this subdivision (d)(1)(B), “wrongfully” means erroneous, incorrect, or otherwise inconsistent with the law or facts.
    2. Subdivision (d)(1)(B) shall apply to injuries that occur on or after July 1, 2016, but shall not apply to injuries that occur after June 30, 2020.
  2. A health care provider shall not employ a collection agency or make a report to a credit bureau concerning a private claim against an employer for all or part of the costs of medical care provided to an employee that are not paid by the employer's workers' compensation insurer without having first given notice of the dispute to the medical payment committee. The medical director may include the insurer in the administrative process.

Acts 1919, ch. 123, § 33; Shan. Supp., § 3608a183; Code 1932, §§ 6886, 6887; Acts 1957, ch. 121, § 1; 1963, ch. 333, § 2; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), §§ 50-1019, 50-1020; Acts 1988, ch. 865, §§ 1-3; 1996, ch. 944, § 17; 1999, ch. 520, § 41; 2003, ch. 112, § 4; 2007, ch. 300, §§ 2, 3; 2013, ch. 282, § 1; 2013, ch. 289, § 61-64; 2016, ch. 816, § 6; 2016, ch. 1056, § 2; 2018, ch. 757, §§ 1-3.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Acts 2016, ch. 1056, § 6 provided that § 2 of the act,  which amended this section, shall apply to injuries that occur on or after July 1, 2016.

Acts 2018, ch. 757, § 4 provided that the act, which amended this section, shall apply to injuries occurring on or after April 18, 2018.

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, substituted “administrator” for “commissioner” in (a)(4).

The 2013 amendment by ch. 289, effective July 1, 2014, in (a)(1), substituted “workers' compensation judge” for “commissioner or the court” in the first sentence, inserted the second sentence, and substituted “workers' compensation judge” for “court” in the last sentence; deleted (a)(2)(B) which read: “For cases submitted to the department for approval pursuant to § 50-6-206(c) that are resolved prior to trial or pursuant to a benefit review conference, the department shall deem the attorney's fee to be reasonable if the fee does not exceed twenty percent (20%) of the award to the injured worker, or, in cases governed by § 50-6-207(4), twenty percent (20%) of the first four hundred (400) weeks of the award.”; substituted “workers' compensation judge” for “trial judge” in (c)(2); and added (d) and (e).

The 2016 amendment by ch. 816 inserted “, expedited hearing order, compensation hearing order, or” near the end of (d).

The 2016 amendment by ch. 1056, in (d), divided and redesignated former (d) as the present introductory language of (1) and as present (1)(A) by substituting “when the employer: (A) Fails to furnish” for “when the employer fails to furnish”; in the present introductory language of (1), deleted “any” preceding the first instance of “attorney’s fees” and inserted “reasonable” preceding “attorney’s fees and reasonable costs”; inserted “, expedited hearing order, compensation hearing order,” near the end of present (1)(A); and added (1)(B) and (2).

The 2018 amendment, in (d), inserted “, but not limited to,” in the introductory language of (1);  rewrote (1)(B) which read: “Wrongfully denies a claim by filing a timely notice of denial, or fails to timely initiate any of the benefits to which the employee is entitled under this chapter, including medical benefits under § 50-6-204 or temporary or permanent disability benefits under § 50-6-207, if the workers' compensation judge makes a finding that such benefits were owed at an expedited hearing or compensation hearing.”; and substituted “June 30, 2020” for “June 30, 2018” at the end of (2).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2016, ch. 816, § 11. April 14, 2016.

Acts 2016, ch. 1056, § 6. July 1, 2016.

Acts 2018, ch. 757, § 4. April 18, 2018.

1. Contested Medical Expenses.

Trial court erred in ordering the employer to pay the decedent's medical expenses into the registry of the court, from which medical providers could seek payment, with the attorneys of the decedent's wife collecting 20 percent of said fund, as such an arrangement was impermissible under T.C.A. § 50-6-226(a) . Holbert v. JBM Inc., — S.W.3d —, 2017 Tenn. LEXIS 709 (Tenn. Nov. 1, 2017).

50-6-226. Fees of attorneys and physicians, and hospital charges. [Applicable to injuries occurring prior to July 1, 2014.]

    1. The fees of attorneys for services to employees under this chapter, shall be subject to the approval of the commissioner or the court before which the matter is pending, as appropriate; provided, that no attorney's fees to be charged employees shall be in excess of twenty percent (20%) of the amount of the recovery or award to be paid by the party employing the attorney. All attorney's fees for attorneys representing employers shall be subject to review for reasonableness of the fee and shall be subject to approval by a court when the fee exceeds ten thousand dollars ($10,000).
      1. Medical costs that have been voluntarily paid by the employer or its insurer shall not be included in determining the award for purposes of calculating the attorney's fee.
      2. For cases submitted to the department for approval pursuant to § 50-6-206(c) that are resolved prior to trial or pursuant to a benefit review conference, the department shall deem the attorney's fee to be reasonable if the fee does not exceed twenty percent (20%) of the award to the injured worker, or, in cases governed by § 50-6-207(4), twenty percent (20%) of the first four hundred (400) weeks of the award.
      3. In cases that proceed to trial, an employee's attorney shall file an application for approval of a proposed attorney's fee. Where the award of an attorney's fee exceeds ten thousand dollars ($10,000), the court shall make specific findings as to the factors that justify the fee as provided in Tennessee Supreme Court Rule 8, RPC 1.5.
      4. The final order or settlement in all workers' compensation cases shall set out the attorney portion of the award in both dollar and percentage terms and the required findings.
    2. In accident cases that result in death of an employee, the plaintiff's attorney's fees shall not exceed reasonable payment for actual time and expenses incurred when the employer makes a voluntary settlement offer in writing to dependents or survivors eligible under § 50-6-210 within thirty (30) days of the employee's death if the employer offers to provide the dependents or survivors with all the benefits provided under this chapter. The approving authority shall review and approve the settlements on an expedited basis.
    3. The fees of physicians and charges of hospitals for services to employees under this chapter, shall be subject to the approval of the commissioner or the court before which the matter is pending, as appropriate, as provided in this subdivision (a)(4). Unless a medical fee or charge is contested, the department shall deem it to be reasonable. If a fee or charge is contested, the department shall permit a party to seek review only of the contested fee or charge in any court with jurisdiction to hear a matter pursuant to § 50-6-225. A court may review the case solely for the purpose of approving the fees and charges that are reasonable.
  1. The charging or receiving of any fee by an attorney in violation of subsection (a) shall be deemed unlawful practice and render the attorney liable to disbarment; and, further, the attorney shall forfeit double the entire amount retained by the attorney, to be recovered as in case of debt by the injured person or the injured person's creditor.
    1. The fees charged to the claimant by the treating physician or a specialist to whom the employee was referred for giving testimony by oral deposition relative to the claim shall, unless the interests of justice require otherwise, be considered a part of the costs of the case, to be charged against the employer when the employee is the prevailing party.
    2. The trial judge shall have the discretion to determine the reasonableness of the fee charged by any physician pursuant to this subsection (c).
    3. This subsection (c) apply only to workers' compensation actions arising on or after July 1, 1988.

Acts 1919, ch. 123, § 33; Shan. Supp., § 3608a183; Code 1932, §§ 6886, 6887; Acts 1957, ch. 121, § 1; 1963, ch. 333, § 2; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), §§ 50-1019, 50-1020; Acts 1988, ch. 865, §§ 1-3; 1996, ch. 944, § 17; 1999, ch. 520, § 41; 2003, ch. 112, § 4; 2007, ch. 300, §§ 2, 3.

Compiler's Notes. Acts 1996, ch. 944, § 57 provided that the amendment by that act shall apply to accidents and injuries occurring on and after January 1, 1997.

Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 55.

Law Reviews.

Attorney's Fees: Where Shall the Ultimate Burden Lie?, 20 Vand. L. Rev. 1216 (1967).

Attorney General Opinions. A properly perfected lien of the Department of Human Services for overdue child support under T.C.A. § 36-5-901(a)(1) is superior to the statutory maximum fee to which an attorney is entitled for services in a workers’ compensation case under T.C.A. § 50-6-226, OAG 07-010 (1/26/07).

NOTES TO DECISIONS

1. Attorney's Fees.

The party employing the attorney pays the attorney's fee, except in the case of recovery against a third-party tortfeasor, provided for in T.C.A. § 50-6-112. Honaker v. Kingsport Press, Inc., 659 S.W.2d 22, 1983 Tenn. LEXIS 729 (Tenn. 1983).

2. —Contested Medical Expenses.

Where medical expenses are a contested issue at trial, they are a part of the “recovery or award” set out in subsection (a) of T.C.A. § 50-6-225 and, therefore, subject to court-approved attorneys' fees. Langford v. Liberty Mut. Ins. Co., 854 S.W.2d 100, 1993 Tenn. LEXIS 184 (Tenn. 1993).

Where the expenses associated with the surgery were at trial, and where awarded to the employee, the employee's attorney was entitled to an award of attorney fees from the expenses related to that surgery. Wilkes v. Resource Auth., 932 S.W.2d 458, 1996 Tenn. LEXIS 591 (Tenn. 1996).

3. Discretionary Costs.

A vocational disability and rehabilitation expert was a “necessary expert” and his fee for appearing and testifying at trial was properly charged to the employer as a discretionary cost. Miles v. Marshall C. Voss Health Care Ctr., 896 S.W.2d 773, 1995 Tenn. LEXIS 147 (Tenn. 1995).

A vocational expert's examination fee should be allowed as discretionary costs in those cases where the trial judge, based on the expert's testimony, makes the required findings and awards more than six times the medical impairment, and the court finds the expert's testimony to have been necessary to such findings. Ingram v. State Indus., 943 S.W.2d 381, 1995 Tenn. LEXIS 623 (Tenn. Special Workers' Comp. App. Panel 1995).

4. Fees Charged to State.

The state may be liable for fees charged to a workers' compensation claimant by a treating physician or specialist, as provided in T.C.A. § 50-6-226 (c)(1). Phillips v. Tennessee Tech. Univ., 984 S.W.2d 217, 1998 Tenn. LEXIS 715 (Tenn. 1998).

Collateral References.

Attorney's fee or other expenses of litigation incurred by employee in action against third party tort-feasor as charge against employer's distributive share. 74 A.L.R.3d 854.

Compensation of attorneys for services in connection with claims. 159 A.L.R. 912.

Handling, preparing, presenting, or trying workers' compensation claims or cases as practice of law. 2 A.L.R.3d 724.

Workers' compensation: availability, rate, or method of calculation of interest on attorney's fees or penalties. 79 A.L.R.5th 201.

50-6-227. Alien dependents of deceased employee — Payment to consular officer or representative — Bond — List of dependents. [Applicable to injuries occurring prior to July 1, 2014.]

      1. In the event compensation is payable due to the death of an employee under this chapter, and the decedent leaves an alien dependent or dependents residing outside of the United States, a workers' compensation specialist is authorized to conduct a benefit review conference to attempt to resolve the issues; provided, that a representative or representatives of the employer and a duly authorized representative or representatives of the consul or other representative of the foreign country in which the dependent or dependents resides are present. In the event a settlement agreement is reached, the commissioner or commissioner's designee is authorized to approve the settlement, and the order of the commissioner or the commissioner's designee shall be entitled to the same standing as a judgment of a court of record for all purposes. In the event the parties are unable to reach an agreement at the benefit review conference, the employer or employee's representative may file a complaint in the circuit or chancery court that would have jurisdiction of the matter pursuant to § 50-6-225 requesting the court to hear and determine the matter.
      2. The commissioner, or commissioner's designee, or the court shall order payment of any compensation due from the employer to be made to the duly accredited consular officer of the country of which the beneficiaries are citizens. The consular officer or the consular officer's representative shall be fully authorized and empowered by this law to settle all claims for compensation and to receive the compensation for distribution to the persons entitled to the compensation.
    1. The distribution of funds in cases described in subdivision (a)(1) shall be made only upon the order of the commissioner, the commissioner's designee, or the court that heard the matter. If required to do so by the commissioner, the commissioner's designee, or the court, the consular officer or the consular officer's representative shall execute a good and sufficient bond to be approved by the commissioner, the commissioner's designee, or the court, conditioned upon the faithful accounting of the moneys so received by the consular officer or the consular officer's representative. Before the bond is discharged a verified statement of receipts and disbursements of the moneys shall be made and filed with the commissioner or the court, as appropriate.
  1. The consular officer or the consular officer's representative shall, before receiving the first payment of the compensation, and at reasonable times thereafter, upon the request of the employer, furnish to the employer a sworn statement containing a list of the dependents with the name, age, residence, extent of dependency and relation to the deceased of each dependent.

Acts 1919, ch. 123, § 34; Shan. Supp. § 3608a184; Code 1932, § 6888; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1021; Acts 2004, ch. 962, § 17.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2013, ch. 289, § 65, effective July 1, 2014, amends  § 50-6-227 by deleting it in its entirety.  However, pursuant to  § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law.  Thus, this section remains in effect as to injuries occurring prior to July 1, 2014. See § 50-6-210(f) for similar provisions under law applicable to injuries occurring on or after July 1, 2014.

NOTES TO DECISIONS

1. Partial Dependents.

Non-resident foreign nationals could qualify as dependents under T.C.A. § 50-6-210 and receive benefits due upon an employee's death but the trial court erred in finding that the deceased employee's parents were actual dependents because the father earned some income of his own at the time of the employee son's death, and thus as a matter of law the parents were partial dependents under § 50-6-210(d). Fusner v. Coop Constr. Co., LLC, 211 S.W.3d 686, 2007 Tenn. LEXIS 7 (Tenn. 2007).

2. Non-resident Dependents.

Tennessee general assembly could not have more clearly expressed its policy determination that non-resident foreign nationals who qualify as dependents must receive the same treatment under the statute as resident United States citizens; therefore, the plain language of T.C.A. § 50-6-227 permits non-resident foreign nationals to receive death benefits as dependents under T.C.A. § 50-6-210 when they meet the statutory definitions of dependency. Fusner v. Coop Constr. Co., LLC, 211 S.W.3d 686, 2007 Tenn. LEXIS 7 (Tenn. 2007).

Collateral References.

Application of workers' compensation laws to illegal aliens. 121 A.L.R.5th 523.

Dependency of alien parent of deceased employee. 30 A.L.R. 1262, 35 A.L.R. 1066, 39 A.L.R. 313, 53 A.L.R. 218, 53 A.L.R. 1066, 62 A.L.R. 160, 86 A.L.R. 865, 100 A.L.R. 1090.

Validity, construction, and application of workers' compensation provisions relating to nonresident alien dependents. 28 A.L.R.5th 547.

50-6-228. Copies of settlements and releases — Filing. [Applicable to injuries occurring prior to July 1, 2014.]

Copies of all settlements and releases shall be filed by the employer with the division of workers' compensation, within ten (10) days after the settlements are made, and shall become part of the permanent records of the division.

Acts 1919, ch. 123, § 35; Shan. Supp., § 3608a185; Acts 1927, ch. 40, § 5; Code 1932, § 6889; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1022; Acts 1999, ch. 520, § 41.

Compiler's Notes. Acts 2013, ch. 289, § 66, effective July 1, 2014, amends  § 50-6-228 by deleting it in its entirety.  However, pursuant to  § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law.  Thus, this section remains in effect as to injuries occurring prior to July 1, 2014.

Cross-References. Inapplicability to claims filed against state, § 9-8-307.

Law Reviews.

Workmen's Compensation in Tennessee: The Second Injury Fund, 6 Mem. St. U.L. Rev. 715 (1976).

50-6-229. Commutation to lump sum payment with consent of court.

  1. The amounts of compensation payable periodically under this chapter may be commuted to one (1) or more lump sum payments. These may be commuted upon motion of any party subject to the approval of the court of workers' compensation claims. No agreed stipulation or order or any agreement by the employer and employee or any other party to the proceeding shall be a prerequisite to the court's approval or disapproval of the award being paid in one (1) or more lump sum payments. In making the commutation, the lump sum payment shall, in the aggregate, amount to a sum of all future installments of compensation. No settlement or compromise shall be made except on the terms provided in this chapter. In determining whether to commute an award, the trial court shall consider whether the commutation will be in the best interest of the employee, and the court shall also consider the ability of the employee to wisely manage and control the commuted award, regardless of whether special needs exist. Attorneys' fees may be paid as a partial lump sum from any award when approved and ordered by the trial judge.
  2. All settlements of compensation by agreement of the parties and all awards of compensation made by the court of workers' compensation claims, when the amount paid or to be paid in settlement or by award does not exceed the compensation for twenty-six (26) weeks of disability, shall be final and not subject to readjustment.
  3. All amounts paid by the employer and received by the employee or the employee's dependents, by lump sum payments, shall be final, but the amount of any award payable periodically for more than twenty-six (26) weeks may be modified as follows:
    1. At any time by agreement of the parties and approval by the court; or
    2. If the parties do not agree, then at any time after twenty-six (26) weeks from the date of the award, either party may file an application to the court of workers' compensation claims, on the ground of increase or decrease of incapacity due solely to the injury.

Acts 1919, ch. 123, § 36; Shan. Supp., § 3608a186; Code 1932, § 6890; Acts 1947, ch. 139, § 12; C. Supp. 1950, § 6890; Acts 1971, ch. 300, § 2; 1979, ch. 295, § 1; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1023; Acts 1983, ch. 217, § 5; 1985, ch. 393, § 16; 1990, ch. 843, § 1; 1992, ch. 900, § 25; 1999, ch. 520, § 41; 2013, ch. 289, §§ 67, 68; 2016, ch. 816, § 7.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which rewrote subsection (b) and added subsection (c), shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, rewrote (b) which read: “(1) Certified copies of the pleadings, orders, judgments and decrees, whereby any lump sum payment settlement has been approved by the court, shall be forwarded to the division of workers' compensation by the employer within ten (10) days after the entry of any final judgment in the proceeding.“(2) The administrator shall have thirty (30) days after the receipt of the certified copies of the proceedings within which to intervene in the lump sum settlement proceedings to secure a readjustment of the lump sum in accordance with the requirements and provisions of this law, whether court shall have adjourned or not, § 50-6-230 to the contrary notwithstanding.”; and added (c).

The 2016 amendment substituted “the court of workers' compensation claims” for “the circuit, chancery or criminal court” at the end of  the second sentence of (a).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2016, ch. 816, § 11. April 14, 2016.

50-6-229. Commutation to lump sum payment with consent of court. [Applicable to injuries occurring prior to July 1, 2014.]

  1. The amounts of compensation payable periodically under this chapter may be commuted to one (1) or more lump sum payments. These may be commuted upon motion of any party subject to the approval of the circuit, chancery or criminal court. No agreed stipulation or order or any agreement by the employer and employee or any other party to the proceeding shall be a prerequisite to the court's approval or disapproval of the award being paid in one (1) or more lump sum payments. In making the commutation, the lump sum payment shall, in the aggregate, amount to a sum of all future installments of compensation. No settlement or compromise shall be made except on the terms provided in this chapter. In determining whether to commute an award, the trial court shall consider whether the commutation will be in the best interest of the employee, and the court shall also consider the ability of the employee to wisely manage and control the commuted award, regardless of whether special needs exist. Attorneys' fees may be paid as a partial lump sum from any award when approved and ordered by the trial judge.
    1. Certified copies of the pleadings, orders, judgments and decrees, whereby any lump sum payment settlement has been approved by the court, shall be forwarded to the division of workers' compensation by the employer within ten (10) days after the entry of any final judgment in the proceeding.
    2. The administrator shall have thirty (30) days after the receipt of the certified copies of the proceedings within which to intervene in the lump sum settlement proceedings to secure a readjustment of the lump sum in accordance with the requirements and provisions of this law, whether court shall have adjourned or not, § 50-6-230 to the contrary notwithstanding.

Acts 1919, ch. 123, § 36; Shan. Supp., § 3608a186; Code 1932, § 6890; Acts 1947, ch. 139, § 12; C. Supp. 1950, § 6890; Acts 1971, ch. 300, § 2; 1979, ch. 295, § 1; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1023; Acts 1983, ch. 217, § 5; 1985, ch. 393, § 16; 1990, ch. 843, § 1; 1992, ch. 900, § 25; 1999, ch. 520, § 41.

Compiler's Notes. The division of workers’ compensation  is now referred to as the  bureau of workers’ compensation.

Cross-References. Inapplicability to claims filed against state, § 9-8-307.

Settlements between parties to be approved by court, § 50-6-206.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 532.

Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 36.

Law Reviews.

Workmen's Compensation in Tennessee: The Second Injury Fund, 6 Mem. St. U.L. Rev. 715 (1976).

NOTES TO DECISIONS

1. In General.

Lump sum awards should only be permitted with a cautious regard for the welfare of the injured worker or his dependents and pursuant to a judicial determination that his, or their, best interests will be served thereby. Valles v. Daniel Constr. Co., 589 S.W.2d 911, 1979 Tenn. LEXIS 515 (Tenn. 1979).

The provisions relative to the payment of workers' compensation awards in a lump-sum cannot be retroactively applied. Armour v. Union Carbide Corp., 594 S.W.2d 690, 1980 Tenn. LEXIS 411 (Tenn. 1980).

A trial judge should always bear in mind and seriously consider before ordering commutation that substantial recoveries have been obtained in a lump sum by a claimant and have been dissipated improperly. Smith v. Gallatin Nursing Home, 629 S.W.2d 683, 1982 Tenn. LEXIS 391 (Tenn. 1982).

Before the trial judge decides to commute an award, he ought to be able to ascribe a good reason therefor arising from the evidence produced before him. The employee bears the burden of showing that it is in his best interest that the award be commuted rather than paid in installments. The reason most commonly advanced for commuting an award is that the plaintiff has some special need for receiving the money in a lump sum. Flowers v. South Cent. Bell Tel. Co., 672 S.W.2d 769, 1984 Tenn. LEXIS 809 (Tenn. 1984).

Lump sum awards are an authorized exception to the general statutory purpose and are not to be awarded as a matter of course. Van Hooser v. Mueller Co., 741 S.W.2d 329, 1987 Tenn. LEXIS 1027 (Tenn. 1987); Williams v. Delvan Delta, Inc., 753 S.W.2d 344, 1988 Tenn. LEXIS 111 (Tenn. 1988).

Under T.C.A. § 50-6-229, the chancellor, in the exercise of his informed discretion, may authorize lump-sum awards in exceptional situations. Williams v. Delvan Delta, Inc., 753 S.W.2d 344, 1988 Tenn. LEXIS 111 (Tenn. 1988).

Ordinarily some special personal, family or property need must be established in order to justify commutation. West v. C.B. Ragland Co., 785 S.W.2d 351, 1990 Tenn. LEXIS 71 (Tenn. 1990).

The import of the 1990 amendment to subsection (a) of T.C.A. § 50-6-229 to eliminate the threshold inquiry into whether the employee has demonstrated a special need. The amendment does not specify what factors are to be considered in meeting the two-prong test (best interest and wise management of the commuted award), so the courts are called upon to exercise their discretion on an ad hoc basis. Clayton v. Cookeville Energy, Inc., 824 S.W.2d 167, 1992 Tenn. LEXIS 43 (Tenn. 1992).

Remand to trial court which had awarded lump sum to employee was necessary where trial court did not make affirmative findings on the record in accordance with applicable law and specifically the 1990 amendment to T.C.A. § 50-6-229. Duckworth v. Globe Business Furniture, Inc., 806 S.W.2d 526, 1991 Tenn. LEXIS 77 (Tenn. 1991).

2. Constitutionality.

T.C.A. § 50-6-229 does not violate the equal protection clause of either the Tennessee or the United States Constitution. Kelley v. 3-M Co., 639 S.W.2d 437, 1982 Tenn. LEXIS 345 (Tenn. 1982).

3. Agreement — Necessity.

This statute implies the presentation of an agreed stipulation or order, and negatives any arbitrary or initiatory action upon the part of the court, and hence requires an agreement between the employer and the employee as a basis of the consent. American Zinc Co. v. Lusk, 148 Tenn. 220, 255 S.W. 39, 1923 Tenn. LEXIS 10 (1923); Knoxville Knitting Mills Co. v. Galyon, 148 Tenn. 228, 255 S.W. 41, 1923 Tenn. LEXIS 11, 30 A.L.R. 976 (1923).

Trial court could not order a lump sum settlement in lieu of weekly payments over the objection of the employer. Kamarad v. Parkes, 201 Tenn. 566, 300 S.W.2d 922, 1957 Tenn. LEXIS 335 (1957).

The statute implies an agreed stipulation or order and requires an agreement between employer and employee as a basis of consent. Fultz v. Union Carbide Corp., 219 Tenn. 345, 409 S.W.2d 541, 1966 Tenn. LEXIS 534 (1966).

In absence of showing of fraud or coercion, supreme court would assume that employee voluntarily accepted lump sum payment. Fultz v. Union Carbide Corp., 219 Tenn. 345, 409 S.W.2d 541, 1966 Tenn. LEXIS 534 (1966).

Workers' compensation awards may be commuted to lump sum payments only by agreement, and where one of several dependents of a deceased employee refuses to consent to a lump sum payment, the death benefits may not be so paid. Williams v. Travelers Ins. Co., 530 S.W.2d 283, 1975 Tenn. LEXIS 563 (Tenn. 1975).

A lump sum award may not be adjudged under this section, as it existed prior to July 1, 1979, without the agreement of both the employer and the insurance carrier in any suit or action wherein both such parties are named parties defendant. Valles v. Daniel Constr. Co., 589 S.W.2d 911, 1979 Tenn. LEXIS 515 (Tenn. 1979).

The trial court erred in ordering a commutation of an employee's workers' compensation benefits to a lump sum where the employer did not consent to such commutation and the amendment to the statute authorizing commutation without the consent of the employer did not take effect until after the employee's accident and injury occurred. CNA Ins. Co. v. Transou, 614 S.W.2d 335, 1981 Tenn. LEXIS 420 (Tenn. 1981).

4. Requisites to Agreement.

The employer and employee cannot make a settlement except upon statutory terms. Ledford v. Johnson City Foundry & Machine Co., 169 Tenn. 430, 88 S.W.2d 804, 1935 Tenn. LEXIS 66 (1935).

Order vacating prior judgment for compensation on the ground that it had been paid in full was not binding on employee where order did not set out terms of settlement and on its face showed that matter had been agreed upon before presentment to court. Ledford v. Johnson City Foundry & Machine Co., 169 Tenn. 430, 88 S.W.2d 804, 1935 Tenn. LEXIS 66 (1935).

5. Single Action Contemplated.

This section and §§ 50-6-209(b), 50-6-230 and 50-6-232 contemplate a single action for the determination of claimant's right to benefits and a single judgment for the award granted. Aetna Casualty & Surety Co. v. Flowers, 330 U.S. 464, 67 S. Ct. 798, 91 L. Ed. 1024, 1947 U.S. LEXIS 2550 (1947).

6. Exception to General Rule.

The general purpose running through the compensation statute is to make the award to the injured payable in weekly installments or as nearly as may be to the manner in which he is accustomed to receiving his wages, with this section being an exception to such general rule. Reece v. York, 199 Tenn. 592, 288 S.W.2d 448, 1956 Tenn. LEXIS 358 (1956).

7. Lump Sum Payments.

Where group health insurance policy provided for monthly payments, such monthly benefit amounts to include all benefits for which employee is eligible from other sources, including workers' compensation, and claimant entered into lump sum settlement for workers' compensation, the monthly amounts he would have received from workers' compensation had he not entered into lump sum agreement could not be deducted from monthly payments under policy. Sturgill v. Life Ins. Co., 62 Tenn. App. 550, 465 S.W.2d 742, 1970 Tenn. App. LEXIS 283 (Tenn. Ct. App. 1970).

It was not an abuse of discretion to approve a statutory lump sum award for the purpose of purchasing a home. Clark v. National Union Fire Ins. Co., 774 S.W.2d 586, 1989 Tenn. LEXIS 322 (Tenn. 1989); North American Royalties, Inc. v. Thrasher, 817 S.W.2d 308, 1991 Tenn. LEXIS 418 (Tenn. 1991).

The 1990 amendment to T.C.A. § 50-6-229 eliminated the necessity of establishing a “special need” in order to secure commutation, and concomitantly imposed upon the worker the burden of establishing, first, that a lump-sum award is in his or her “best interest” and, second, that the worker is capable of “wisely managing and controlling the commuted award.” North American Royalties, Inc. v. Thrasher, 817 S.W.2d 308, 1991 Tenn. LEXIS 418 (Tenn. 1991).

One standard relevant to the “best interest” inquiry, and the one more nearly consistent with the purpose of the workers' compensation statute, is the relevance of commutation to the rehabilitation of the worker seeking a lump sum award. North American Royalties, Inc. v. Thrasher, 817 S.W.2d 308, 1991 Tenn. LEXIS 418 (Tenn. 1991).

Where the record demonstrated, and the defendants conceded, that the plaintiff could wisely manage and control a commuted award, and the record showed a substantial part of the award would be devoted to housing, and there was no documented need for periodic payments, the trial court did not abuse its discretion in commuting the plaintiff's apportioned share to a lump sum. Clayton v. Cookeville Energy, Inc., 824 S.W.2d 167, 1992 Tenn. LEXIS 43 (Tenn. 1992).

Since claimant's financial position could likely be ascertained, and since he also had a potentially valid claim for commutation, the matter was remanded to the trial court for an evidentiary hearing to determine the lump-sum amount due claimant, if any. Brown v. Canterbury Corp., 844 S.W.2d 134, 1992 Tenn. LEXIS 609 (Tenn. 1992).

Trial court did not err in commuting plaintiff's workers' compensation award when plaintiff did not prove the necessity for a lump sum payment during trial, but moved for a hearing on commutation following final judgment and without showing a change in circumstances. Forkum v. Aetna Life & Casualty Ins. Co., 852 S.W.2d 230, 1993 Tenn. LEXIS 151 (Tenn. 1993).

In workers' compensation death case, where decedent left surviving dependents including spouse, child and grandchild and spouse had demonstrated ability to wisely manage family finances, she was entitled to commutation of her apportioned share of death benefits into a lump sum award and the shares of the children commuted into a lump sum award to be paid to the clerk and master with instructions that funds be invested as provided by law with the interest accruing from the childrens' shares paid to the surviving spouse for their use and benefit. Ponder ex rel. Ponder v. Manchester Hous. Auth., 870 S.W.2d 282, 1994 Tenn. LEXIS 8 (Tenn. 1994).

8. —Attorney's Fees.

A trial court does not have the authority to commute periodic payments and order the lump-sum payment of attorney's fees in a workers' compensation case. North American Royalties, Inc. v. Thrasher, 817 S.W.2d 308, 1991 Tenn. LEXIS 418 (Tenn. 1991).

The trial judge was within the law in allowing attorney's fees to the extent of the award commutated. Forkum v. Aetna Life & Casualty Ins. Co., 852 S.W.2d 230, 1993 Tenn. LEXIS 151 (Tenn. 1993).

Lump sum payment of attorney's fees was permissible even if death benefits were not commuted to a lump sum and even though it was possible that benefits might cease or decrease in the future. National Pizza Co. v. Young, 879 S.W.2d 817, 1994 Tenn. LEXIS 166 (Tenn. 1994).

Because the amendment, passed on May 5, 1992 as part of the Workers' Compensation Reform Act of 1992 which took effect on July 1, 1992, permitting lump-sum payment of attorneys fees does not carry a specific effective date and because it does not affect the substantive rights of the parties to litigation, there is nothing to prevent its application to the payment of attorney fees set on or after July 1, 1992. Modine Mfg. Co. v. Patterson, 876 S.W.2d 293, 1993 Tenn. LEXIS 321 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 316 (Tenn. Aug. 23, 1993).

Commutation to a lump sum would be proper in any pending case in which the attorney has made a timely application for the lump-sum payment of fees after the effective date of the amendment (July 1, 1992). Modine Mfg. Co. v. Patterson, 876 S.W.2d 293, 1993 Tenn. LEXIS 321 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 316 (Tenn. Aug. 23, 1993).

The entire balance of attorney fees owed would be commuted to a lump sum where additional administrative burdens and costs associated with paying the fees over a period of years militated against a partial commutation to a lump sum. Spencer v. Towson Moving & Storage, 922 S.W.2d 508, 1996 Tenn. LEXIS 306 (Tenn. 1996).

9. —Best Interest.

While a showing of “special needs” as a threshold matter has been abrogated by the legislature, nothing in the 1990 amendment to T.C.A. § 50-6-229 suggests that “special needs,” like special circumstances, cannot be taken into account in determining what is in the injured employee's “best interest.” Skinner v. CNA Ins. Co., 824 S.W.2d 164, 1992 Tenn. LEXIS 31 (Tenn. 1992).

A shortened life expectancy would not be an appropriate basis, in and of itself, for full commutation of a workers' compensation award. If properly presented, however, it might be one factor, along with others, to be considered in determining what is in the employee's “best interest” when that employee seeks commutation. Skinner v. CNA Ins. Co., 824 S.W.2d 164, 1992 Tenn. LEXIS 31 (Tenn. 1992).

In determining the widow's best interest, the record demonstrated the death of the worker resulted in additional capital from insurance benefits and periodic income from social security benefits, all accruing to the family unit. As a result, the family income was sufficient to cover family expenses, excluding any workers' compensation periodic payments. Accordingly, there was no need for periodic payments as a substitute for wages. Clayton v. Cookeville Energy, Inc., 824 S.W.2d 167, 1992 Tenn. LEXIS 43 (Tenn. 1992).

Where the only proof offered that the partial lump-sum award was in the employee's best interest was that he wanted to pay all of his outstanding debts in full and make some repairs to his home, but claimant's wife testified that the temporary total benefits, together with the permanent disability benefits accrued at the time of trial, would be sufficient to cover any delinquent loan payments, as well as pay for the needed repairs on the home, the partial lump-sum award was not in the employee's best interest. Henson v. Lawrenceburg, 851 S.W.2d 809, 1993 Tenn. LEXIS 147 (Tenn. 1993).

Where it was shown that the employee had sufficient regular income and did not need monthly payments, it was in her best interest to have a lump sum payment to invest on capital improvements to her home, transportation needs, and to draw interest. Newton v. Scott Health Care Ctr., 914 S.W.2d 884, 1995 Tenn. LEXIS 754 (Tenn. Special Workers' Comp. App. Panel 1995).

The employee has the burden of establishing, first, that a lump-sum award is in his or her “best interest” and, second, that the worker is capable of “wisely managing and controlling the commuted award.” Edmonds v. Wilson County, 9 S.W.3d 106, 1999 Tenn. LEXIS 681 (Tenn. 1999).

10. Commutation Inappropriate.

The mere fact that the employee manages his own income and might be able to earn interest on the commuted amount if he invested the same prudently was not a sufficient reason for granting commutation. Fowler v. Consolidated Aluminum Corp., 665 S.W.2d 713, 1984 Tenn. LEXIS 749 (Tenn. 1984).

Lump sum payment should not have been awarded where the plaintiff did not file a motion requesting a lump sum award, no hearing was held to establish a special need for a lump sum payment, and no evidence was cited in the Chancellor's order recognizing exceptional circumstances warranting such an award. Davenport v. Taylor Feed Mill, 784 S.W.2d 923, 1990 Tenn. LEXIS 56 (Tenn. 1990), superseded by statute as stated in, Thweatt v. Travelers Prop. & Cas. Ins. Co., — S.W.3d —, 2000 Tenn. LEXIS 421 (Tenn. Special Workers' Comp. App. Panel July 27, 2000), superseded by statute as stated in, Rodgers v. Guys & Gals, Inc., — S.W.3d —, 2000 Tenn. LEXIS 422 (Tenn. July 27, 2000), superseded by statute as stated in, Rodgers v. Guys & Gals, Inc., — S.W.3d —, 2000 Tenn. LEXIS 428 (Tenn. Special Workers' Comp. App. Panel July 27, 2000).

The trial court did not abuse its discretion in commuting the widow's benefits, but erred in commuting the surviving children's benefits to a lump sum and in assessing the guardian ad litem's fees against the children's award. Perdue v. Green Branch Mining Co., 837 S.W.2d 56, 1992 Tenn. LEXIS 489 (Tenn. 1992).

Trial court's order commuting the entire award to payment in a lump sum was not supported by the record. Huddleston v. Hartford Accident & Indem. Co., 858 S.W.2d 315, 1993 Tenn. LEXIS 254 (Tenn. 1993).

11. Commutation Appropriate.

Where employee who had few monthly financial obligations for which periodic payments were needed, wanted lump sum payment in order to provide for relatives in the event of death, and so that the funds could be invested and earn interest, a commuted award was in the employee's best interest. Edmonds v. Wilson County, 9 S.W.3d 106, 1999 Tenn. LEXIS 681 (Tenn. 1999).

12. Pleading.

Requests for commutation of benefits should be made in the complaint, either originally or by amendment prior to trial. The complaint should allege that commutation would be in the best interest of the employee and also that the employee has the ability to wisely manage and control the commuted award. Forkum v. Aetna Life & Casualty Ins. Co., 852 S.W.2d 230, 1993 Tenn. LEXIS 151 (Tenn. 1993).

In cases where no request for commutation of benefits is made in the complaint, or, if made, is waived, the employee's statutory right to apply for commutation by motion is recognized and protected. Forkum v. Aetna Life & Casualty Ins. Co., 852 S.W.2d 230, 1993 Tenn. LEXIS 151 (Tenn. 1993).

13. Presentation of Evidence.

In cases where the pleadings show that the employee is entitled to some award in any event, evidence supporting the request shall be presented as part of the plaintiff's proof in chief; where the pleadings show that the plaintiff may not be entitled to any award, the trial judge shall make a determination, prior to the close of plaintiff's evidence, whether economy of judicial time is better served by hearing evidence in support of the request for commutation prior to or immediately after the trial court's decision in regard to liability. In making this determination, the trial judge should consider the likelihood of having to take the case under advisement for a more detailed consideration and whether the expense to the parties of coming back for an additional hearing can be avoided. Forkum v. Aetna Life & Casualty Ins. Co., 852 S.W.2d 230, 1993 Tenn. LEXIS 151 (Tenn. 1993).

A failure to present evidence at the time directed by the trial judge shall be deemed a waiver of the request for commutation of benefits. Forkum v. Aetna Life & Casualty Ins. Co., 852 S.W.2d 230, 1993 Tenn. LEXIS 151 (Tenn. 1993).

Collateral References.

Commutation of payments under Workers' Compensation Acts, specific grounds. 69 A.L.R. 547.

Constitutionality and construction of provisions as to manner of payment directed against noninsuring or self-insuring employers. 18 A.L.R. 267.

Minor beneficiaries, protection of rights of, in proceeding for compensation under provisions of Workmen's Compensation Act.120 A.L.R. 402.

50-6-230. Awards and agreed settlements — Finality. [Applicable to injuries occurring prior to July 1, 2014.]

All settlements of compensation by agreement of the parties and all awards of compensation made by the court, where the amount paid or to be paid in settlement or by award does not exceed the compensation for six (6) months' disability, shall be final and not subject to readjustment.

Acts 1919, ch. 123, § 37; Shan. Supp., § 3608a187; Code 1932, § 6891; T.C.A. (orig. ed.), § 50-1024.

Compiler's Notes. Sections 50-6-206 and 50-6-229 provide for the reopening of court approved settlements and lump sum payments within 30 days after the receipt of the papers by the workers' compensation division (now bureau), notwithstanding this section to the contrary.

Acts 2013, ch. 289, § 69, effective July 1, 2014, amends § 50-6-230 by deleting it in its entirety.  However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law.  Thus, this section remains in effect as to injuries occurring prior to July 1, 2014.

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 39.

Law Reviews.

Workmen's Compensation — Reopening in Tennessee, 7 Mem. St. U.L. Rev. 261 (1977).

NOTES TO DECISIONS

1. Awards.

Where employee was awarded surgical and hospital fees and compensation for ten weeks, he could not bring another suit for additional compensation of same injury on ground that the disability continued more than ten weeks. McCaslin v. Heath, 157 Tenn. 380, 8 S.W.2d 362, 1928 Tenn. LEXIS 202 (1928).

2. Settlements.

A voluntary settlement made with court's approval is final and not open to readjustment where the amount of the settlement does not exceed the compensation for six months' disability. A court cannot set aside approval by it of a settlement merely because the approval was by nunc pro tunc entry. Hedges-Walsh-Weidner Co. v. Haley, 165 Tenn. 486, 55 S.W.2d 775, 1932 Tenn. LEXIS 74 (1933)See alsoCollege Coal Mining Co. v. Smith, 160 Tenn. 93, 21 S.W.2d 1038, 1929 Tenn. LEXIS 78 (1929), overruled in part, Brown v. Consolidation Coal Co., 518 S.W.2d 234, 1974 Tenn. LEXIS 433 (Tenn. 1974).

Two settlements made with employee for compensation covering eight weeks, in each case made for hernia occasioned by a fall and for recurrence of hernia unattended by any accident, which were paid by the employer were final if approved by court and if not so approved were gratuitous payments so that where the original injury occurred more than a year from the time that employee commenced proceedings for additional compensation such claim would be barred by statute of limitations. Gaines v. Du Pont Rayon Co., 168 Tenn. 361, 79 S.W.2d 40, 1934 Tenn. LEXIS 65 (1935).

Suit for additional compensation based on increased disability was not barred by this section where court in approving settlement stated that compensation was for present injury and if disability should increase an application could be filed for increased compensation. Phillips v. Memphis Furniture Mfg. Co., 168 Tenn. 481, 79 S.W.2d 576, 1934 Tenn. LEXIS 80 (1935).

3. Effect of Other Sections.

The operation of this section was not affected by the amendment to § 50-6-207, changing the rate of compensation for temporary total disability, since the amendment does not operate retroactively. Cates v. T.I.M.E., DC, Inc., 513 S.W.2d 508, 1974 Tenn. LEXIS 464 (Tenn. 1974).

50-6-231. Lump sum payments final — Modification of periodic payments for more than six months. [Applicable to injuries occurring prior to July 1, 2014.]

All amounts paid by the employer and received by the employee or the employee's dependents, by lump sum payments, shall be final, but the amount of any award payable periodically for more than six (6) months may be modified as follows:

  1. At any time by agreement of the parties and approval by the court; or
  2. If the parties cannot agree, then at any time after six (6) months from the date of the award an application may be made to the courts by either party, on the ground of increase or decrease of incapacity due solely to the injury. In those cases, the same procedure shall be followed as in § 50-6-225 in case of a disputed claim for compensation.

Acts 1919, ch. 123, § 38; Shan. Supp., § 3608a188; Code 1932, § 6892; T.C.A. (orig. ed), § 50-1025.

Compiler's Notes. The first part of this section, providing that lump sum payments shall be final, was held impliedly repealed by § 50-6-206, as amended in 1947, with respect to any settlements coming under that section in Bledsoe County Hwy. Dep't v. Pendergrass, 205 Tenn. 697, 330 S.W.2d 313 (1959).

Acts 2013, ch. 289, § 70, effective July 1, 2014, amends § 50-6-231 by deleting it in its entirety.  However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law.  Thus, this section remains in effect as to injuries occurring prior to July 1, 2014. For similar provisions under law applicable to injuries occurring on or after July 1, 2014, see § 50-6-229(c).

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 39.

Law Reviews.

Workmen's Compensation in Tennessee: The Second Injury Fund, 6 Mem. St. U.L. Rev. 715 (1976).

NOTES TO DECISIONS

1. Nature and Effect of Section.

In view of provision for future modification of decree in case of increase of capacity, award of specified sum per week for specific number of weeks was proper though there was no proof that disability would continue that long, such provision being impliedly read into the decree. Crane Enamelware Co. v. Dotson, 152 Tenn. 401, 277 S.W. 902, 1925 Tenn. LEXIS 83 (1925).

This section enables the court to act upon the facts as they appear on the trial and leave the matter open for future adjustment in event of a change in the condition of the employee. Bon Air Coal & Iron Corp. v. Johnson, 153 Tenn. 255, 283 S.W. 447, 1925 Tenn. LEXIS 26 (1926).

One year limitation period did not bar suit by employee to enforce compensation decree where employer's petition for relief due to change in employee's condition, which was filed within one year after decree was still pending before the court. Butterbaugh v. Loew's, Inc., 168 Tenn. 284, 77 S.W.2d 644, 1934 Tenn. LEXIS 54, 96 A.L.R. 973 (1935).

T.C.A. § 50-6-231 is not applicable to an award for temporary total disability payments since the term “award” means the judgment of a court and there can be no award for temporary total disability payments to be paid periodically. Prince v. Sentry Ins. Co., 908 S.W.2d 937, 1995 Tenn. LEXIS 655 (Tenn. Special Workers' Comp. App. Panel 1995).

2. Effect of Other Sections.

The operation of this section was not affected by the amendment to § 50-6-207, changing the rate of compensation for temporary total disability, since the amendment does not operate retroactively. Cates v. T.I.M.E., DC, Inc., 513 S.W.2d 508, 1974 Tenn. LEXIS 464 (Tenn. 1974).

T.C.A. § 50-6-241(a)(2) controls over the provisions of T.C.A. § 50-6-231 to the extent that the two statutes conflict; a petition under T.C.A. § 50-6-241(a)(2) to enlarge a previous award of compensation is not prohibited in a case where the original workers' compensation award sought to be enlarged was paid in lump sum. Brewer v. Lincoln Brass Works, Inc., 991 S.W.2d 226, 1999 Tenn. LEXIS 224 (Tenn. 1999), rehearing denied, Brewer v. Lincoln Brass Works, — S.W.3d —, 1999 Tenn. LEXIS 299 (Tenn. June 14, 1999).

Pursuant to T.C.A. § 50-6-241(a)(2), a trial court may reconsider and enlarge a lump sum award paid pursuant to T.C.A. § 50-6-231. Niziol v. Lockheed Martin Energy Sys., Inc., 8 S.W.3d 622, 1999 Tenn. LEXIS 599 (Tenn. 1999).

3. —Partial Repeal.

The provisions of § 50-6-206, as amended in 1947, providing for the setting aside of settlement agreements, repeals by implication the first part of this section providing that lump sum payments shall be final. Bledsoe County Highway Dep't v. Pendergrass, 205 Tenn. 697, 330 S.W.2d 313, 1959 Tenn. LEXIS 410 (1959).

Provision that all lump sum payments of workers' compensation are final was repealed by implication only to the extent that it conflicted with a provision of § 50-6-206 allowing a lump sum settlement to be set aside where it appears that the settlement does not secure to the employee in a substantial manner the benefits of the Workers' Compensation Law and where application to the trial court is made within 30 days after receipt by the division of workers' compensation of the papers in the case. Reams v. Trostel Mechanical Industries, Inc., 522 S.W.2d 170, 1975 Tenn. LEXIS 721 (Tenn. 1975); Nails v. Aetna Ins. Co., 834 S.W.2d 289, 1992 Tenn. LEXIS 413 (Tenn. 1992).

4. Meaning of Terms.

The phrase “at any time” as used in this section means at any time while the jurisdiction of the court decreeing the original award continues, and that jurisdiction expires when the case is finally disposed of by discharge of all obligations adjudged by the original decree. Nelson v. Cambria Coal Co., 178 Tenn. 389, 158 S.W.2d 717, 1941 Tenn. LEXIS 70, 165 A.L.R. 1 (1942), rehearing denied, 178 Tenn. 389, 160 S.W.2d 412, 165 A.L.R. 1 (1942).

The word “modified” as used in this section has reference to decree awarding the compensation and it is within the life of this decree that modification can be made either on the behalf of the petitioner or the defendant, and the decree expends its force at the end of the award made by it. Nelson v. Cambria Coal Co., 178 Tenn. 389, 158 S.W.2d 717, 1941 Tenn. LEXIS 70, 165 A.L.R. 1 (1942), rehearing denied, 178 Tenn. 389, 160 S.W.2d 412, 165 A.L.R. 1 (1942).

5. Right of Modification.

The remedy is to be restricted to the determination of whether or not there has been an increase or decrease of incapacity due solely to the injury effective since the date of the original award. Hartford Hosiery Mills v. Jernigan, 149 Tenn. 241, 259 S.W. 546, 1923 Tenn. LEXIS 96 (1924); Crane Enamelware Co. v. Dotson, 159 Tenn. 561, 20 S.W.2d 1045, 1929 Tenn. LEXIS 10 (1929).

Where evidence was conflicting but material evidence showed no decrease or material change of employee's condition, circuit court properly dismissed employee's petition for modification. Hartford Hosiery Mills v. Jernigan, 149 Tenn. 241, 259 S.W. 546, 1923 Tenn. LEXIS 96 (1924).

A showing of income or earning capacity by the use of other faculties, or members of the body, will not reduce the grade of injury of the affected members or faculties or the compensation provided. Crane Enamelware Co. v. Dotson, 159 Tenn. 561, 20 S.W.2d 1045, 1929 Tenn. LEXIS 10 (1929).

A satisfactory showing of an increase in incapacity since the determination of the original action is an absolute essential to the right to have an additional award under this section. Hay v. Woosley, 175 Tenn. 475, 135 S.W.2d 933, 1939 Tenn. LEXIS 64 (1940).

A final judgment in a compensation case is final as in any other case unless the petitioner is seeking to reopen the case and bring himself within the terms of this section. Hay v. Woosley, 175 Tenn. 475, 135 S.W.2d 933, 1939 Tenn. LEXIS 64 (1940); Nelson v. Cambria Coal Co., 178 Tenn. 389, 158 S.W.2d 717, 1941 Tenn. LEXIS 70, 165 A.L.R. 1 (1942), rehearing denied, 178 Tenn. 389, 160 S.W.2d 412, 165 A.L.R. 1 (1942); General Shale Products Corp. v. Reese, 35 Tenn. App. 423, 245 S.W.2d 788, 1951 Tenn. App. LEXIS 83 (Tenn. Ct. App. 1951).

Fact that injured employee, subsequent to injury, had obtained temporary and unusual employment at greater wages than he received prior to injury, did not entitle insurance carrier to a modification of an award for total permanent disability, where it was not questioned that there was no decrease in the incapacity of employee, due solely to the injury, since the award was made. Fidelity & Casualty Co. v. Long, 181 Tenn. 190, 180 S.W.2d 889, 1944 Tenn. LEXIS 360 (1944).

Where employee recovered against third party tort-feasor, and amount of recovery was credited to the employer against liability to the employee with the remainder of the amount under the compensation statute to be paid in weekly installments, action of chancellor in refusing to defer installment payments until the amount of weekly credits which would have accrued amounted to the net credit from the tort-feasor was improper as amounting to payment of double benefits and depriving employer of benefit under this section to have decree modified upon decrease of disability. Reece v. York, 199 Tenn. 592, 288 S.W.2d 448, 1956 Tenn. LEXIS 358 (1956).

This section permits modification of award only while jurisdiction of the court over the case continues, and such jurisdiction no longer exists when all payments provided for in original award have been made. American Snuff Co. v. Helms, 201 Tenn. 622, 301 S.W.2d 348, 1957 Tenn. LEXIS 342 (1957).

In action to increase amount of previous compensation award, trial judge was not authorized to correct mistakes in conclusions of fact drawn from evidence as to extent of disability which was considered at original hearing. R. J. Reynolds Tobacco Co. v. Rollins, 203 Tenn. 565, 315 S.W.2d 1, 1958 Tenn. LEXIS 332 (1958).

The only type of judgment or award in a compensation case that may be reopened or modified is an award that is payable periodically for more than six months after date of the award. Leaver v. Rudy Sausage Co., 206 Tenn. 313, 333 S.W.2d 555, 1960 Tenn. LEXIS 366 (1960).

Under this section the sole question for determination by the trier of facts is whether or not there has been an increase or decrease of the incapacity due solely to the injury effective since the date of the original award. Dingus v. Holston Defense Corp., 211 Tenn. 20, 362 S.W.2d 249, 1962 Tenn. LEXIS 334 (1962).

Where proof in original proceeding and proof upon petition to reopen case and increase award were nearly identical, increase in award from 50 percent to 75 percent permanent disability to body as a whole was improper even though there was testimony by petitioner and physicians at first hearing that petitioner was totally and permanently disabled and testimony at hearing upon petition to reopen was to the effect that his condition was the same. Dingus v. Holston Defense Corp., 211 Tenn. 20, 362 S.W.2d 249, 1962 Tenn. LEXIS 334 (1962).

Testimony of physicians that plaintiff was now totally disabled viewed in light of court's finding of 50 percent disability in 1958 was sufficient to show that there had been an increase in plaintiff's incapacity since date of original award and thus plaintiff was granted an additional award of compensation benefits. Mitchell v. United States Fidelity & Guaranty Co., 206 F. Supp. 489, 1962 U.S. Dist. LEXIS 3764 (E.D. Tenn. 1962).

It is incumbent upon petitioner to prove by competent evidence not only that there is an increase in incapacity but also that such increase was due solely to the original injury. Magnavox Co. of Tennessee v. Shepherd, 214 Tenn. 321, 379 S.W.2d 791, 1964 Tenn. LEXIS 480 (1964).

Lay testimony of employee and husband was not sufficient to establish that increased incapacity of employee resulted solely from original injury. Magnavox Co. of Tennessee v. Shepherd, 214 Tenn. 321, 379 S.W.2d 791, 1964 Tenn. LEXIS 480 (1964).

Where lump sum settlement entered into pursuant to § 50-6-206 was silent as to nature, extent and permanence of the disability being compensated and agreement was devoid of any criteria by which fairness of settlement could be judged, settlement could be modified even though this section provided that lump sum payments are final and petition was not filed until after the expiration of the 30 day period for modification provided by § 50-6-206. Lindsey v. Hunt, 215 Tenn. 406, 384 S.W.2d 441, 1964 Tenn. LEXIS 527 (1964), rehearing denied, Lindsey v. Hunt, 215 Tenn. 406, 387 S.W.2d 344, 1965 Tenn. LEXIS 505 (1964), overruled, Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991).

Employee was not entitled to reopening of case and modification of award where rights had been judicially determined and no award was periodically payable for more than six months. Hughes v. Globe Co., 224 Tenn. 208, 452 S.W.2d 859, 1970 Tenn. LEXIS 316 (1970).

The only types of awards in compensation cases that may be reopened and modified are court approved settlements, even though they may provide for lump sum payment, or awards payable periodically for more than six months. Hughes v. Globe Co., 224 Tenn. 208, 452 S.W.2d 859, 1970 Tenn. LEXIS 316 (1970).

This is the only provision of the law for reopening of a compensation case and a modification of the award. Hughes v. Globe Co., 224 Tenn. 208, 452 S.W.2d 859, 1970 Tenn. LEXIS 316 (1970).

Notation on final compensation check indicating that compensation was for period extending beyond date employee filed petition for increase in benefits did not estop employer from raising issue that petition was filed after final payment had been made and judgment had become final where court records were equally accessible to both parties. Escue v. Lux Time Div., 225 Tenn. 533, 472 S.W.2d 228, 1971 Tenn. LEXIS 321 (1971).

Petition for modification is required to be filed within the time weekly payments are being made since after all payments are made the judgment is discharged and the court lacks jurisdiction. Escue v. Lux Time Div., 225 Tenn. 533, 472 S.W.2d 228, 1971 Tenn. LEXIS 321 (1971).

In hearing on petition to change finding of 75 percent permanent partial disability to permanent total disability, where there was sufficient evidence to show change in condition, chancellor was entitled to conclude that the employee's disability had increased, notwithstanding a thoracic surgeon's opinion evidence at both hearings that the employee was permanently disabled. Royal Indem. Co. v. Futtrell, 585 S.W.2d 583, 1979 Tenn. LEXIS 479 (Tenn. 1979).

6. Rate of Compensation after Modification.

Where worker petitioned for change in degree of disability, the chancellor in his new decree should have applied the rate of compensation in effect at the time of the worker's partial or total incapacity for work due to coal worker's pneumoconiosis, rather than the rate of compensation which was thereafter enacted and in effect at the time of the last hearing. Royal Indem. Co. v. Futtrell, 585 S.W.2d 583, 1979 Tenn. LEXIS 479 (Tenn. 1979).

7. Original Decree Allowing Subsequent Modification.

Where decree approving settlement for injured eye stated that if disability increased that a claim for additional compensation could be filed, a claim filed eight years thereafter for additional compensation due to increased disability was not barred. Phillips v. Memphis Furniture Mfg. Co., 168 Tenn. 481, 79 S.W.2d 576, 1934 Tenn. LEXIS 80 (1935).

8. Awards Not Subject to Modification.

Where award for less than six months' disability included allowance for disability thereafter, it was final and not subject to modification. McCaslin v. Heath, 157 Tenn. 380, 8 S.W.2d 362, 1928 Tenn. LEXIS 202 (1928).

Where a decree was entered by consent of the parties and no mistake was made in entering the decree, such decree could not be modified at a subsequent term on ground that the amount of the award was erroneous and excessive. College Coal Mining Co. v. Smith, 160 Tenn. 93, 21 S.W.2d 1038, 1929 Tenn. LEXIS 78 (1929), overruled in part, Brown v. Consolidation Coal Co., 518 S.W.2d 234, 1974 Tenn. LEXIS 433 (Tenn. 1974).

In a compensation proceeding by dependent of the decedent who was accidentally killed in the course of his employment, where the court decreed that the amount to be paid was not to exceed $5,000, and was to be an acquittance of all claims for compensation because of the decedent's death, although the decree was entered in misapprehension of the law and the limit fixed on the amount recoverable, yet such decree was final, where no application was made to correct the alleged mistake as to the amount of decree, for more than five years after its rendition and entry, the decree became binding on the parties, although the amount adjudicated was too small. Shockley v. Morristown Produce & Ice Co., 171 Tenn. 591, 106 S.W.2d 562, 1937 Tenn. LEXIS 141 (1937), overruled in part, Brown v. Consolidation Coal Co., 518 S.W.2d 234, 1974 Tenn. LEXIS 433 (Tenn. 1974).

An original award originally payable periodically for more than six months but settled in a lump sum payment at the conclusion of the original litigation was not later subject to modification under this section. Hay v. Woosley, 175 Tenn. 475, 135 S.W.2d 933, 1939 Tenn. LEXIS 64 (1940).

Employee's attempt to set aside a lump sum settlement for workers' compensation approved by court decree was prohibited where the decree which employee sought to modify was not an award payable periodically for more than six months. Reams v. Trostel Mechanical Industries, Inc., 522 S.W.2d 170, 1975 Tenn. LEXIS 721 (Tenn. 1975).

Modification of a final judgment so as to award a second period of temporary total disability was not authorized since there had been an adjudication of the time for which the claimant was entitled to such disability and there was no subsequent anatomical change adversely affecting the claimant and no new disability was discovered. Prince v. Sentry Ins. Co., 908 S.W.2d 937, 1995 Tenn. LEXIS 655 (Tenn. Special Workers' Comp. App. Panel 1995).

9. Satisfaction of Award — Effect.

Application for modification of an award in a compensation case under this section must be made while the jurisdiction of the court over the case continues, and such jurisdiction no longer exists when and after all periodic or other payments provided in the original award have been made and the judgment fully discharged. Nelson v. Cambria Coal Co., 178 Tenn. 389, 158 S.W.2d 717, 1941 Tenn. LEXIS 70, 165 A.L.R. 1 (1942), rehearing denied, 178 Tenn. 389, 160 S.W.2d 412, 165 A.L.R. 1 (1942).

Award of 35 percent permanent partial disability award to the employee's body as a whole in a workers'  compensation action was improper because the employee was precluded by the prior settlement from recovering additional benefits. Wilhelm v. Krogers, 235 S.W.3d 122, 2007 Tenn. LEXIS 743 (Tenn. Aug. 17, 2007).

10. Settlement Not According to Terms of Statute.

The employer and employee cannot make a settlement except upon statutory terms, and a settlement which was made before the matter was presented to the court and entered, as an agreed order, did not bar a petition for modification under this section, even though the order recited that the judgment entered in the case had been paid in full. Ledford v. Johnson City Foundry & Machine Co., 169 Tenn. 430, 88 S.W.2d 804, 1935 Tenn. LEXIS 66 (1935).

11. Proceeding to Set Aside Settlement for Fraud.

A proceeding by petition for writ of error coram nobis, which undertakes to set aside for fraud a lump sum settlement under the Workers' Compensation Law, is an equitable proceeding in a law court, and therefore a discretionary appeal is permitted under § 27-3-105 (repealed; see T.R.A.P. 9). Beard v. Standard Coosa Thatcher Co., 188 Tenn. 14, 216 S.W.2d 706, 1948 Tenn. LEXIS 487 (1948).

12. Injury Not Covered by Settlement.

In compensation proceeding for permanent and total disability for silicosis, plea in bar that employee had previously accepted lump sum settlement for temporary total and permanent partial disability based on chest injury was erroneously sustained by trial court where plea did not set out that settlement covered silicosis or other occupational disease. Layne v. Tennessee Consol. Coal Co., 206 Tenn. 675, 337 S.W.2d 237, 1960 Tenn. LEXIS 417 (1959).

13. Relief from Final Judgment.

In a workers' compensation case, post-trial increase in disability did not constitute a reason justifying relief from a final lump-sum judgment under Tenn.R.Civ.P. 60.02(5). Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 1993 Tenn. LEXIS 185, 26 A.L.R.5th 820, 5 A.L.R. 2208 (Tenn. 1993).

When a party agrees to settle a workers' compensation claim, and the trial court approves the settlement, the settling party is generally not entitled to relief pursuant to Tenn. R. Civ. P. 60.02(5). Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 2000 Tenn. LEXIS 158 (Tenn. 2000).

Collateral References.

Workers' compensation: Reopening lump-sum compensation payment. 26 A.L.R.5th 127.

50-6-232. Present value of future installments — Deposit in trust releasing employer — Trustee to make payments.

  1. Any time after the amount of any award has been agreed upon by the parties, or found and ordered by the court, a sum of all future installments of compensation may, where death or the nature of the injury renders the amount of future payments certain, by leave of court, be paid by the employer to any savings bank or trust company of this state to be approved and designated by the court, and the sum, together with all interest on the sum, shall be held in trust for the employee or the dependents of the employee who shall have no further recourse against the employer.
  2. The payment of the sum by the employer evidenced by the receipts of the trustee, which shall be filed with the bureau, shall constitute satisfaction of the award by the employer.
  3. Payments from the fund shall be made by the trustee in the same amounts and at the same time as are required of the employer until the fund interest is exhausted.
  4. In the appointment of the trustee, preference shall be given, in the discretion of the court of workers' compensation claims, to the choice of the injured employee or the dependent of the deceased employee, as the case may be.

Acts 1919, ch. 123, § 39; impl. am. Acts 1923, ch. 7, §§ 55, 56; Shan. Supp., § 3608a189; Code 1932, § 6893; Acts 1971, ch. 300, § 3; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1026; Acts 1985, ch. 393, § 21; 2013, ch. 289, §§ 71, 72; 2015, ch. 341, § 15.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which amended subsections (b) and (d), shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, rewrote (b) which read: “The payment of the sum by the employer evidenced by the receipts in duplicate of the trustee, one (1) of which shall be filed with the division of workers' compensation, and the other filed with the clerk of the circuit court, shall operate as a satisfaction of the award as to the employer.”; and substituted “court of workers' compensation claims” for “court” in (d).

The 2015 amendment substituted “bureau” for “division” in (b).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-232. Present value of future installments — Deposit in trust releasing employer — Trustee to make payments. [Applicable to injuries occurring prior to July 1, 2014.]

  1. Any time after the amount of any award has been agreed upon by the parties, or found and ordered by the court, a sum of all future installments of compensation may, where death or the nature of the injury renders the amount of future payments certain, by leave of court, be paid by the employer to any savings bank or trust company of this state to be approved and designated by the court, and the sum, together with all interest on the sum, shall be held in trust for the employee or the dependents of the employee who shall have no further recourse against the employer.
  2. The payment of the sum by the employer evidenced by the receipts in duplicate of the trustee, one (1) of which shall be filed with the division of workers' compensation, and the other filed with the clerk of the circuit court, shall operate as a satisfaction of the award as to the employer.
  3. Payments from the fund shall be made by the trustee in the same amounts and at the same time as are required of the employer until the fund interest is exhausted.
  4. In the appointment of the trustee, preference shall be given, in the discretion of the court, to the choice of the injured employee or the dependent of the deceased employee, as the case may be.

Acts 1919, ch. 123, § 39; impl. am. Acts 1923, ch. 7, §§ 55, 56; Shan. Supp., § 3608a189; Code 1932, § 6893; Acts 1971, ch. 300, § 3; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1026; Acts 1985, ch. 393, § 21.

Compiler's Notes. The division of workers’ compensation  is now referred to as the bureau of workers’ compensation.

NOTES TO DECISIONS

1. Agreement to Lump Sum Payments.

Payments can be commuted as provided in § 50-6-209 only on agreement between the employer and employee, which is the basis of the court's consent and the court does not have the power to take arbitrary or initiatory action. American Zinc Co. v. Lusk, 148 Tenn. 220, 255 S.W. 39, 1923 Tenn. LEXIS 10 (1923); Knoxville Knitting Mills Co. v. Galyon, 148 Tenn. 228, 255 S.W. 41, 1923 Tenn. LEXIS 11, 30 A.L.R. 976 (1923).

50-6-233. Enforcement powers of administrator — Promulgation of rules and regulations to implement chapter.

    1. There is conferred upon the administrator the power to enforce this chapter that relate to the assurance of payments of the awards under this chapter.
    2. In no event shall the bureau of workers' compensation charge a fee or impose a cost for any necessary or required forms needed to process a workers' compensation claim.
  1. [Deleted by 2017 amendment.]
  2. In addition to the rulemaking authority granted in § 50-6-118, and subsection (a), the administrator or the commissioner of commerce and insurance, as appropriate, may promulgate rules and regulations implementing this chapter. The rules and regulations shall be promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1919, ch. 123, § 46; impl. am. Acts 1923, ch. 7, §§ 2, 50; Shan. Supp., § 3608a196; Code 1932, § 6900; Acts 1941, ch. 90, § 12; C. Supp. 1950, § 6900; Acts 1972, ch. 699, § 5; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1028; Acts 1983, ch. 215, § 3; 1992, ch. 900, § 3; 1999, ch. 242, § 2; 1999, ch. 265, § 3; 1999, ch. 520, § 41, 2006, ch. 687, § 1; 2013, ch. 289, § 73; 2015, ch. 341, § 15; 2017, ch. 344, § 8.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, by ch. 289 rewrote the section which read: “(a)(1) There is conferred upon the commissioner the power to enforce the provisions of this chapter that relate to the assurance of payments of the awards under this chapter.“(2)  The commissioner has the power, subject to the approval of the governor, to employ clerical assistance the commissioner deems necessary and fix the compensation of the person or persons so employed.“(3)  The commissioner may make rules and regulations not inconsistent with this law for the purpose of discharging the commissioner's duties under the provisions of this chapter.“(4)  The commissioner may provide forms for the use of employers and other literature that may be necessary and shall furnish to any employee or employer literature and blank forms that the commissioner deems requisite to facilitate or promote the efficient administration of this chapter.“(5)  In no event shall the division of workers' compensation charge a fee or impose a cost for any necessary or required forms needed to process a workers' compensation claim.“(6)  The commissioner shall modify Form # C32 to include a location for a health care provider to indicate temporary total disability and the point at which the employee reached maximum medical improvement.“(b)  The commissioner shall cause the division of workers' compensation to refer all feasible cases for vocational rehabilitation to the department of education.“(c)  In addition to the rulemaking authority granted in § 50-6-118, and subsection (a) of this section, the commissioner or the commissioner of commerce and insurance, as appropriate, may promulgate rules and regulations implementing this chapter. The rules and regulations shall be promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The commissioner's rules and regulations shall include, but not be limited to, the rules and regulations:“(1)  Establishing minimum qualifications and training for workers' compensation specialists;“(2)  Establishing procedures for benefit review conferences including the time within which all conferences must be held and the times within which copies of reports and agreements must be filed with the commissioner. The rules shall prescribe a mechanism by which written notice of all conferences, copies of agreements, and copies of reports shall be provided to the insurer, the employee, the employer, and any party to a claim. The rules shall provide guidelines relating to claims that do not require a benefit review conference;“(3)  To provide a civil penalty for parties to a claim who fail to attend a properly scheduled and noticed conference;“(4)  To provide a procedure to withhold payment from a health care provider for over-utilization of medical care or services or for ordering inappropriate medical care or services;“(5)  To provide an appeal procedure for a health care provider who has had payment withheld for over-utilization of medical care or services;“(6)  To provide a system of case management to coordinate the medical care services provided to employees claiming benefits under this chapter. The rules and regulations shall establish a threshold of medical expenses and services or other appropriate point over which all cases will be subject to case management;“(7)  To ensure health care providers' compliance with § 50-6-204(a)(4), and rules and regulations to provide an appeal procedure for a health care provider who has had payment withheld for charging amounts found to be excessive; provided, that no rule promulgated pursuant to this subdivision (c)(7) shall be filed with the secretary of state after approval by the attorney general and reporter, pursuant to §§ 4-5-207 and 4-5-211, unless also approved by the medical care and cost containment committee established by § 50-6-125; and“(8)  To establish a civil penalty, to be assessed at the discretion of the commissioner, against a provider who has, after proper notification and appropriate time to respond, refused to make repayment to a payor for a payment that exceeds the medical fee schedule after exhausting all appeals. Under no circumstances shall a provider be assessed a civil penalty solely for receiving payment from a payor that exceeds the medical fee schedule.”

The 2015 amendment substituted “bureau” for “division” in (a)(2) and (b).

The 2017 amendment deleted (b) which read: “(b) The administrator shall cause the bureau of workers' compensation to refer all feasible cases for vocational rehabilitation to the department of education.”

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2017, ch. 344, § 12. May 9, 2017.

50-6-233. Enforcement power of commissioner — Referral of vocational rehabilitation cases — Promulgation of rules and regulations to implement chapter. [Applicable to injuries occurring prior to July 1, 2014.]

    1. There is conferred upon the commissioner the power to enforce this chapter that relate to the assurance of payments of the awards under this chapter.
    2. The commissioner has the power, subject to the approval of the governor, to employ clerical assistance the commissioner deems necessary and fix the compensation of the person or persons so employed.
    3. The commissioner may make rules and regulations not inconsistent with this law for the purpose of discharging the commissioner's duties under this chapter.
    4. The commissioner may provide forms for the use of employers and other literature that may be necessary and shall furnish to any employee or employer literature and blank forms that the commissioner deems requisite to facilitate or promote the efficient administration of this chapter.
    5. In no event shall the division of workers' compensation charge a fee or impose a cost for any necessary or required forms needed to process a workers' compensation claim.
    6. The commissioner shall modify Form # C32 to include a location for a health care provider to indicate temporary total disability and the point at which the employee reached maximum medical improvement.
  1. The commissioner shall cause the division of workers' compensation to refer all feasible cases for vocational rehabilitation to the department of education.
  2. In addition to the rulemaking authority granted in § 50-6-118, and subsection (a), the commissioner or the commissioner of commerce and insurance, as appropriate, may promulgate rules and regulations implementing this chapter. The rules and regulations shall be promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The commissioner's rules and regulations shall include, but not be limited to, the rules and regulations:
    1. Establishing minimum qualifications and training for workers' compensation specialists;
    2. Establishing procedures for benefit review conferences including the time within which all conferences must be held and the times within which copies of reports and agreements must be filed with the commissioner. The rules shall prescribe a mechanism by which written notice of all conferences, copies of agreements, and copies of reports shall be provided to the insurer, the employee, the employer, and any party to a claim. The rules shall provide guidelines relating to claims that do not require a benefit review conference;
    3. To provide a civil penalty for parties to a claim who fail to attend a properly scheduled and noticed conference;
    4. To provide a procedure to withhold payment from a health care provider for over-utilization of medical care or services or for ordering inappropriate medical care or services;
    5. To provide an appeal procedure for a health care provider who has had payment withheld for over-utilization of medical care or services;
    6. To provide a system of case management to coordinate the medical care services provided to employees claiming benefits under this chapter. The rules and regulations shall establish a threshold of medical expenses and services or other appropriate point over which all cases will be subject to case management;
    7. To ensure health care providers' compliance with § 50-6-204(a)(4), and rules and regulations to provide an appeal procedure for a health care provider who has had payment withheld for charging amounts found to be excessive; provided, that no rule promulgated pursuant to this subdivision (c)(7) shall be filed with the secretary of state after approval by the attorney general and reporter, pursuant to §§ 4-5-207 and 4-5-211, unless also approved by the medical care and cost containment committee established by § 50-6-125; and
    8. To establish a civil penalty, to be assessed at the discretion of the commissioner, against a provider who has, after proper notification and appropriate time to respond, refused to make repayment to a payor for a payment that exceeds the medical fee schedule after exhausting all appeals. Under no circumstances shall a provider be assessed a civil penalty solely for receiving payment from a payor that exceeds the medical fee schedule.

Acts 1919, ch. 123, § 46; impl. am. Acts 1923, ch. 7, §§ 2, 50; Shan. Supp., § 3608a196; Code 1932, § 6900; Acts 1941, ch. 90, § 12; C. Supp. 1950, § 6900; Acts 1972, ch. 699, § 5; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1028; Acts 1983, ch. 215, § 3; 1992, ch. 900, § 3; 1999, ch. 242, § 2; 1999, ch. 265, § 3; 1999, ch. 520, § 41, 2006, ch. 687, § 1.

Compiler's Notes. The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

Cross-References. Establishment and collection of penalties, § 50-6-118.

Inapplicability to claims filed against state, § 9-8-307.

Information awareness program, § 50-6-119.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

NOTES TO DECISIONS

1. Force of Regulations.

When the time stamp on an employee's complaint seeking workers'  compensation benefits was two minutes earlier than the time stamp on a benefit review conference report (report), a trial court had no jurisdiction to consider the complaint because (1) T.C.A. § 50-6-225(a)(2)(A) required the parties to exhaust the benefit review process before seeking judicial review, (2) while the statute did not state exactly when a benefit review conference was deemed exhausted, Tenn. Comp. R. & Regs. 0800-2-5-.09 stated the date and time noted on the report determined when that process was exhausted, (3) this regulation had the force of law, since the legislature authorized the division (now bureau) of workers'  compensation to create a benefit review conference process in T.C.A. § 50-6-233(a)(3) and (c)(2), and (4) extrinsic evidence could not be used to impeach the time stamp on the complaint, absent fraud, inevitable accident, or surprise, which were not shown, as that time stamp was unambiguous, so the complaint was filed before the time noted on the report, and, as a result, the complaint did not invoke the trial court's jurisdiction. Word v. Metro Air Servs., 377 S.W.3d 671, 2012 Tenn. LEXIS 510 (Tenn. Aug. 21, 2012).

50-6-234. Discontinuance or change in temporary disability benefits by employer — Resumption or increase of benefits.

  1. In any case when the employer has commenced paying temporary disability benefits to the employee and has then stopped or changed the benefits for any cause other than failure of an employee to submit to employer requests for reasonable medical examinations by the treating physician or final settlement, the employee may request the assistance of a workers' compensation mediator who shall mediate the dispute, in accordance with § 50-6-236. If the dispute is not resolved by agreement, the parties may 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.
  2. After temporary disability payments have commenced, when the injured employee reaches maximum medical improvement and the compensability of the injury has not been contested by the employer, then payments shall continue until the injured employee accepts or rejects a job offered by any employer at a wage equal to or greater than the employee's pre-injury wage, if the employee is able to perform the duties of the position within any restrictions placed on the employee by the physician selected pursuant to § 50-6-204. In no case may temporary payments pursuant to this subsection (b) exceed the lesser of sixty (60) days or the value of the employee's permanent partial disability award calculated solely upon the medical impairment; provided, that these limits may be exceeded if agreed to by all parties. The amount of the payment shall be credited against any permanent award. For purposes of this subsection (b), the determination of attainment of maximum medical improvement and the employee's medical impairment shall be made by the physician selected in accordance with § 50-6-204. Nothing in this subsection (b) shall require an employer to return any employee to work.

Acts 1990, ch. 656, § 1; 1996, ch. 944, § 21; 2006, ch. 1014, § 4; 2013, ch. 289, § 74.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, rewrote the section which read: “(a) In any case where the employer has commenced paying temporary disability benefits to the employee and has then stopped or changed the benefits for any cause other than failure of an employee to submit to employer requests for reasonable medical examinations by the treating physician or final settlement, the employee may petition a court of proper jurisdiction to order that the employer show good cause why the temporary benefits should not be resumed or increased.“(b) Upon a hearing, the court is authorized to award the resumption or increase of the benefits to the employee from the employer.“(c) The hearing shall be held within twenty (20) days after the petition is filed.“(d) After temporary disability payments have commenced, when the injured employee reaches maximum medical improvement, a permanent impairment rating is given and the compensability of the injury has not been contested by the employer, then payments shall continue until the earlier of the following events: the injured employee accepts or rejects a job offered by the employer at a wage equal to or greater than the employee's pre-injury wage, if the employee is able to perform the duties of the position within any restrictions placed on the employee by the physician selected pursuant to § 50-6-204; or a benefit review conference is held and the report is filed pursuant to § 50-6-240. In no case may temporary payments pursuant to this subsection (d) exceed the lesser of sixty (60) days or the value of the employee's permanent partial disability award calculated solely upon the medical impairment; provided, that these limits may be exceeded if agreed to by all parties. The amount of the payment shall be credited against any permanent award. For purposes of this subsection (d), the determination of attainment of maximum medical improvement and the employee's medical impairment shall be made by the physician selected in accordance with § 50-6-204. Nothing in this subsection (d) shall require an employer to return any employee to work.”

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

50-6-234. Discontinuance or change in temporary disability benefits by employer — Resumption or increase of benefits. [Applicable to injuries occurring prior to July 1, 2014.]

  1. In any case where the employer has commenced paying temporary disability benefits to the employee and has then stopped or changed the benefits for any cause other than failure of an employee to submit to employer requests for reasonable medical examinations by the treating physician or final settlement, the employee may petition a court of proper jurisdiction to order that the employer show good cause why the temporary benefits should not be resumed or increased.
  2. Upon a hearing, the court is authorized to award the resumption or increase of the benefits to the employee from the employer.
  3. The hearing shall be held within twenty (20) days after the petition is filed.
  4. After temporary disability payments have commenced, when the injured employee reaches maximum medical improvement, a permanent impairment rating is given and the compensability of the injury has not been contested by the employer, then payments shall continue until the earlier of the following events: the injured employee accepts or rejects a job offered by the employer at a wage equal to or greater than the employee's pre-injury wage, if the employee is able to perform the duties of the position within any restrictions placed on the employee by the physician selected pursuant to § 50-6-204; or a benefit review conference is held and the report is filed pursuant to § 50-6-240. In no case may temporary payments pursuant to this subsection (d) exceed the lesser of sixty (60) days or the value of the employee's permanent partial disability award calculated solely upon the medical impairment; provided, that these limits may be exceeded if agreed to by all parties. The amount of the payment shall be credited against any permanent award. For purposes of this subsection (d), the determination of attainment of maximum medical improvement and the employee's medical impairment shall be made by the physician selected in accordance with § 50-6-204. Nothing in this subsection (d) shall require an employer to return any employee to work.

Acts 1990, ch. 656, § 1; 1996, ch. 944, § 21; 2006, ch. 1014, § 4.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Cross-References. Medical attendance and hospitalization, reports, physical examinations, § 50-6-204.

50-6-235. Depositions by physicians — Written medical report — Admissibility — Schedule for charges.

    1. If a physician refuses to make a reasonable effort to give a deposition in a workers' compensation case within ninety (90) days of receipt of notice, the employee may petition the court for an order requiring the physician to give the deposition.
    2. If the physician does not respond to the petition in a timely fashion, the physician may lose the exemption from subpoena to trial established by § 24-9-101.
  1. For the purpose of subsection (a), the requirement that the physician make a reasonable effort to give a deposition may be presumed to be satisfied if the physician offers to be available to give the physician's deposition within ninety (90) days' of notice at two (2) or more reasonable places and at times within normal business hours, but because of scheduling difficulties on the part of any of the other persons who wish to be present at the deposition, the deposition cannot take place at either of the times and places offered by the physician.
    1. Any party may introduce direct testimony from a physician through a written medical report on a form established by the administrator. The administrator shall establish by rule the form for the report. All parties shall have the right to take the physician's deposition on cross examination concerning its contents. Any written medical report sought to be introduced as evidence shall be signed by the physician making the report bearing an original signature. A reproduced medical report that is not originally signed is not admissible as evidence unless accompanied by an originally signed affidavit from the physician or the submitting attorney verifying the contents of the report. Any written medical report sought to be introduced into evidence shall include within the body of the report or as an attachment a statement of qualifications of the person making the report. The administrator shall, by regulation, fix the fee to be charged by the physician for the preparation and filing of the report and fix penalties for a failure to file the report after a timely request for it by any interested party.
    2. The written medical report of a treating or examining physician shall be admissible at any stage of a workers' compensation claim in lieu of a deposition upon oral examination, if notice of intent to use the sworn statement is provided to the opposing party or counsel not less than twenty (20) days before the date of intended use. If no objection is filed within ten (10) days of the receipt of the notice, the sworn statement shall be admissible as described in this subsection (c). In the event that a party does object, then the objecting party shall depose the physician within a reasonable period of time or the objection shall be deemed to be waived.
  2. The medical payment committee established in § 50-6-125 shall establish a schedule by rule for reasonable charges by physicians for preparing and giving depositions in workers' compensation cases. The schedule may be subject to annual revision. Physicians shall not be permitted to charge more than the amount permitted under the schedule. The rule shall be subject to the approval of the administrator, including annual revisions.

Acts 1990, ch. 656, § 2; 1992, ch. 900, § 22; 1996, ch. 944, § 18; 1997, ch. 533, § 5; 1999, ch. 520, § 41; 2013, ch. 289, § 75.

Code Commission Notes.

The former last three sentences of subsection (d), concerning the initial proposed rule and the review and comment period, were deleted as obsolete by the code commission in 2008.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, in (c) substituted “administrator” for “commissioner” in the first, second and last sentences of (1) and in the last sentence of (d); and substituted “medical payment committee” for “medical care and cost containment committee” at the beginning of the first sentence (d).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Cross-References. Deponents exempt from subpoena to trial but subject to subpoena to deposition, § 24-9-101.

Medical attendance and hospitalization, reports, physical examinations, § 50-6-204.

50-6-235. Depositions by physicians — Written medical report — Admissibility — Schedule for charges. [Applicable to injuries occurring prior to July 1, 2014.]

    1. If a physician refuses to make a reasonable effort to give a deposition in a workers' compensation case within ninety (90) days of receipt of notice, the employee may petition the court for an order requiring the physician to give the deposition.
    2. If the physician does not respond to the petition in a timely fashion, the physician may lose the exemption from subpoena to trial established by § 24-9-101.
  1. For the purpose of subsection (a), the requirement that the physician make a reasonable effort to give a deposition may be presumed to be satisfied if the physician offers to be available to give the physician's deposition within ninety (90) days' of notice at two (2) or more reasonable places and at times within normal business hours, but because of scheduling difficulties on the part of any of the other persons who wish to be present at the deposition, the deposition cannot take place at either of the times and places offered by the physician.
    1. Any party may introduce direct testimony from a physician through a written medical report on a form established by the commissioner. The commissioner shall establish by rule the form for the report. All parties shall have the right to take the physician's deposition on cross examination concerning its contents. Any written medical report sought to be introduced as evidence shall be signed by the physician making the report bearing an original signature. A reproduced medical report that is not originally signed is not admissible as evidence unless accompanied by an originally signed affidavit from the physician or the submitting attorney verifying the contents of the report. Any written medical report sought to be introduced into evidence shall include within the body of the report or as an attachment a statement of qualifications of the person making the report. The commissioner shall, by regulation, fix the fee to be charged by the physician for the preparation and filing of the report and fix penalties for a failure to file the report after a timely request for it by any interested party.
    2. The written medical report of a treating or examining physician shall be admissible at any stage of a workers' compensation claim in lieu of a deposition upon oral examination, if notice of intent to use the sworn statement is provided to the opposing party or counsel not less than twenty (20) days before the date of intended use. If no objection is filed within ten (10) days of the receipt of the notice, the sworn statement shall be admissible as described in this subsection (c). In the event that a party does object, then the objecting party shall depose the physician within a reasonable period of time or the objection shall be deemed to be waived.
  2. The medical care and cost containment committee established in § 50-6-125 shall establish a schedule by rule for reasonable charges by physicians for preparing and giving depositions in workers' compensation cases. The schedule may be subject to annual revision. Physicians shall not be permitted to charge more than the amount permitted under the schedule. The rule shall be subject to the approval of the commissioner, including annual revisions.

Acts 1990, ch. 656, § 2; 1992, ch. 900, § 22; 1996, ch. 944, § 18; 1997, ch. 533, § 5; 1999, ch. 520, § 41.

Code Commission Notes.

The former last three sentences of subsection (d), concerning the initial proposed rule and the review and comment period, were deleted as obsolete by the code commission in 2008.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Cross-References. Deponents exempt from subpoena to trial but subject to subpoena to deposition, § 24-9-101.

Medical attendance and hospitalization, reports, physical examinations, § 50-6-204.

NOTES TO DECISIONS

1. Medical Reports.

Pursuant to T.C.A. §§ 50-6-204(f) and 50-6-235(c), the trial court properly admitted the report of the examining physician, which was paid for by the employer, in this workers' compensation case. Martin v. Lear Corp., 90 S.W.3d 626, 2002 Tenn. LEXIS 459 (Tenn. 2002).

Although T.C.A. § 50-6-235 was not the exclusive means of introducing medical testimony in workers' compensation cases, evidence still had to meet the requirements of Tenn. R. Evid. 803(6) and a physician's independent medical evaluation of an employee in preparation for trial did not meet the requirements. Arias v. Duro Std. Prods. Co., 303 S.W.3d 256, 2010 Tenn. LEXIS 57 (Tenn. Jan. 22, 2010).

Trial court did not err in excluding, as inadmissible hearsay, a note attached to the Form C-32 prepared by the employee's original treating physician because the note did not strictly meet the requirements of the statute and was inadmissible; the note was not prepared by the treating physician as a part of the Form C-32 but was prepared in response to questions posed to him by or on behalf of the employer subsequent to his preparation of the Form C-32. Cowan v. Knox Cnty., — S.W.3d —, 2016 Tenn. LEXIS 121 (Tenn. Feb. 24, 2016), aff'd, — S.W.3d —, 2016 Tenn. LEXIS 120 (Tenn. Feb. 24, 2016).

2. Medical Depositions.

Where the employee sought workers' compensation benefits for an injury she sustained while flipping a piece of wood, the medical evidence consisted entirely of the employee's medical records as there were no depositions of medical experts; a local rule of the 24th Judicial District, which prohibited the taking of medical depositions in workers compensation cases absent leave of court, was declared invalid. Glisson v. Mohon Int'l, Inc., 185 S.W.3d 348, 2006 Tenn. LEXIS 180 (Tenn. 2006).

In a workers'  compensation case, an orthopaedic surgeon performed an independent medical evaluation at the request of the employee's attorney and the employee submitted those opinions to the trial court by means of a C-32 medical report. The employer exercised its right to take a deposition on cross-examination of the doctor pursuant to T.C.A. § 50-6-235(c)(1). Collier v. Life Care Ctrs. of Collegedale, — S.W.3d —, 2012 Tenn. LEXIS 736 (Tenn. Oct. 8, 2012), aff'd, — S.W.3d —, 2012 Tenn. LEXIS 737 (Tenn. Oct. 8, 2012).

50-6-236. Workers' compensation mediators program.

  1. The administrator shall establish a workers' compensation mediators program to assist injured or disabled employees, persons claiming death benefits, employers and other persons in protecting their rights, resolving disputes, and obtaining information pertinent to workers' compensation laws and practices.
  2. In accordance with rules adopted by the administrator, the mediator shall conduct alternative dispute resolution and the mediator shall:
    1. Mediate all disputes between the parties related to the resolution of a claim for workers' compensation benefits and assist in the adjustment of claims consistent with this chapter and the policies of the administrator;
    2. Thoroughly inform all parties of their rights and responsibilities under this chapter, including the right of any party to be represented by an attorney of the party's choice;
    3. Accept all documents and information presented to the bureau relating to the employee's wages, medical condition, and any other information pertinent to the resolution of disputed issues and include them in the claim file; and
    4. If the parties reach a full and final settlement, the mediator shall reduce the settlement to writing and each party, or their representative, shall sign. Any settlement reached during alternative dispute resolution proceedings shall not become effective, until it has been approved by a workers' compensation judge in accordance with the procedure provided in this chapter.
    1. When mediation is held, a person representing the employee and the employer, or the employer's insurer, with the authority to settle, shall attend. It shall not be required that the state or its representative who attends mediation have final settlement authority. Parties entering into mediation shall be prepared to mediate all disputed issues at the beginning of mediation and shall mediate all issues in good faith.
    2. When a mediator determines that a party is not prepared to mediate as required or believes a party is not mediating in good faith, the mediator shall include comments to that effect in the dispute certification notice.
    3. The administrator is authorized to promulgate rules to effectuate the purposes of this subsection (c) in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The violation of those rules or this subsection (c) may subject the party or their representative to a civil penalty of not less than fifty dollars ($50.00) or more than five thousand dollars ($5,000).
    1. If the parties are unable to reach settlement of any disputed issues, the mediator shall issue a written dispute certification notice setting forth all unresolved issues for hearing before a workers' compensation judge.
    2. The dispute certification shall be issued on a form prescribed by the administrator and signed by the assigned workers' compensation mediator who shall distribute a copy of the signed dispute certification notice to all parties in accordance with rules adopted by the administrator.
      1. No party is entitled to a hearing before a workers' compensation judge to determine temporary or permanent benefits or to resolve a dispute over the terms of an agreed settlement of a workers' compensation claim, unless a workers' compensation mediator has issued a dispute certification notice setting forth the issues for adjudication by a workers' compensation judge.
      2. Within five (5) business days after a copy of the dispute certification notice signed by the mediator has been distributed to the parties, any party may, on no more than one (1) occasion for each notice, present a written request that the contents of the dispute certification notice be amended to the mediator who presided over the alternative dispute resolution proceeding.
      3. If a written request to amend the dispute certification notice is presented to the mediator before the expiration of the five (5) business day period provided in subdivision (d)(3)(B), the mediator shall, within three (3) business days after the initial five (5) business day period ends, issue an amended dispute certification notice. If no amended dispute certification notice is signed by the mediator and distributed to the parties, the initial dispute certification notice distributed to the parties pursuant to subdivision (d)(3) shall remain in effect.
  3. A workers' compensation mediator shall not be an advocate for either party and shall mediate all issues without favor or presumption for or against either party. A mediator shall have no authority to order the provision of workers' compensation benefits.
  4. Any person employed as a workers' compensation mediator shall not engage in mediation, litigation, or determination of workers' compensation claims outside of the workers' compensation mediator's duties as a workers' compensation mediator.
  5. If, following a request by the mediator, a party fails to produce documents, to cooperate in scheduling mediation, or to provide a representative authorized to settle a matter in attendance at mediation, then the mediator may issue a dispute certification notice and include a statement detailing the party's failure to cooperate, produce documents or to ensure attendance of a representative authorized to settle the claim. On the motion of either party or on the workers' compensation judge's motion, a workers' compensation judge is authorized, but not required, to hold a hearing on the failure to produce documents requested by the mediator, to cooperate in scheduling and to provide a representative who possessed settlement authority. If the workers' compensation judge determines that the failure lacked good cause or resulted from bad faith, then the workers' compensation judge may assess the offending party who failed to take the requested action with attorney's fees and costs related only to the mediation and the hearing. The administrator is authorized to promulgate rules to effectuate the purposes of this subsection (g) in accordance with the Uniform Administrative Procedures Act.

Acts 1992, ch. 900, § 11; 1996, ch. 944, §§ 19, 20; 1999, ch. 242, § 1; 1999, ch. 520, § 41; 2004, ch. 962, §§ 18, 19; 2005, ch. 390, § 8; 2013, ch. 289, § 76; 2015, ch. 341, § 15.

Compiler's Notes. Prior to the 2013 amendment, the former provisions of this section related to workers' compensation specialists.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Worker's Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, rewrote the section which read: “(a) The commissioner shall establish a workers' compensation specialist program to assist injured or disabled employees, persons claiming death benefits, employers and other persons in protecting their rights and obtaining information available under workers' compensation laws.“(b) A workers' compensation specialist shall meet with or otherwise provide information to or receive information from injured or disabled employees, employers, insurance carriers and health care providers on behalf of injured or disabled employees. The specialist shall conduct informal dispute resolution by holding benefit review conferences throughout the state. The conference shall be held in the county where the employee lives, unless otherwise agreed to between the parties, or otherwise directed by the commissioner.“(c) Any person employed as a specialist by the commissioner is ineligible to further handle cases that require the person's involvement during this employment as a specialist.“(d) A workers' compensation specialist shall examine any proposed settlement reached during the benefit review conference to determine whether the employee is receiving, substantially, the benefits provided by this chapter.“(e) Each employer shall notify the employer's employees of the workers' compensation specialist service in a manner prescribed by the commissioner. At a minimum, the notice shall include the posting of a notice in one (1) or more conspicuous places. The notice shall include a toll-free number for employees to reach a workers' compensation specialist. The commissioner shall also describe clearly the availability of the workers' compensation specialist on the first report of accident form required by this chapter.“(f) Workers' compensation specialists shall conduct benefit review conferences. The commissioner shall institute and maintain an education and training program for workers' compensation specialists, who must be employees of the division. The specialists shall be trained in the principles and procedures of dispute mediation. The commissioner is authorized to consult or enter into contracts with the federal mediation and conciliation service or other appropriate organizations to accomplish this purpose.“(g) In conducting benefit review conferences, the workers' compensation specialist shall:“(1) Mediate disputes between the parties and assist in the adjustment of claims consistent with this chapter and the policies of the commissioner, before and after the benefit review conference;“(2) Thoroughly inform all parties of their rights and responsibilities under this chapter, including the right of any party to be represented by an attorney of the party's choice;“(3) Ensure that all documents and information relating to the employees' wages, medical condition, and any other information pertinent to the resolution of disputed issues are contained in the claim file at the conference, especially in cases in which the employee is not represented by an attorney; and“(4) Determine whether, under any proposed settlement, the employee is receiving, substantially, the benefits provided by this chapter.“(h) A benefit review conference shall be requested at any time within the limitation period or periods provided in 50-6-203 or 50-6-206. A workers' compensation specialist shall have the authority to continue or reschedule a benefit review conference. A workers' compensation specialist shall also have the authority to cancel or waive a benefit review conference, solely within the discretion of that workers' compensation specialist.“(i) For the purpose of conducting discovery, workers' compensation specialists shall have the authority, either on their own or at the request of either party, to refer matters to a specially designated attorney within the department who may issue subpoenas, effect discovery, and issue protective orders in the same manner as an administrative judge or hearing officer pursuant to  § 4-5-311.“(j) The workers' compensation specialist may not take testimony but may direct questions to an employee, an employer, or a representative of an insurance carrier to supplement or clarify information in a claim file.“(k) The workers' compensation specialist shall maintain a file concerning these proceedings.“(l ) The workers' compensation specialist shall not engage in litigation or determination of workers' compensation claims outside of the workers' compensation specialist's duties as a workers' compensation specialist.“(m) The commissioner shall establish a program of continuing education and training for workers' compensation specialists in order to assure that specialists maintain current and appropriate skills and knowledge in performing their duties. The program of continuing education shall include, at a minimum, seven (7) hours of continuing education each fiscal year. The minimum seven (7) hours of education shall be specifically in the area of Workers' Compensation Law, compiled in this chapter, and shall be in addition to any mediation training provided to the specialists. Three (3) of the seven (7) hours of education shall be approved by the Tennessee commission on continuing legal education and specialization. In addition to the annual seven-hour continuing education requirement, each specialist hired by the department shall be provided, within one (1) month of the date of hire, formal training and education, which shall include training on the department's workers' compensation system, the Tennessee workers' compensation statutes and caselaw, and the rules and regulations of the division of workers' compensation. Documentation reflecting the type of education and training provided pursuant to this subsection (m) shall be maintained by the administrator of the division of workers' compensation. Documentation of each educational program shall include the date of the program, the name of each specialist attending, a description of the educational program including topics covered, the name of the sponsor or provider of the educational program and the number of hours for each educational program.”

The 2015 amendment substituted “bureau” for “division” in (b)(3).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-236. Workers' compensation specialists. [Applicable to injuries occurring prior to July 1, 2014.]

  1. The commissioner shall establish a workers' compensation specialist program to assist injured or disabled employees, persons claiming death benefits, employers and other persons in protecting their rights and obtaining information available under workers' compensation laws.
  2. A workers' compensation specialist shall meet with or otherwise provide information to or receive information from injured or disabled employees, employers, insurance carriers and health care providers on behalf of injured or disabled employees. The specialist shall conduct informal dispute resolution by holding benefit review conferences throughout the state. The conference shall be held in the county where the employee lives, unless otherwise agreed to between the parties, or otherwise directed by the commissioner.
  3. Any person employed as a specialist by the commissioner is ineligible to further handle cases that require the person's involvement during this employment as a specialist.
  4. A workers' compensation specialist shall examine any proposed settlement reached during the benefit review conference to determine whether the employee is receiving, substantially, the benefits provided by this chapter.
  5. Each employer shall notify the employer's employees of the workers' compensation specialist service in a manner prescribed by the commissioner. At a minimum, the notice shall include the posting of a notice in one (1) or more conspicuous places. The notice shall include a toll-free number for employees to reach a workers' compensation specialist. The commissioner shall also describe clearly the availability of the workers' compensation specialist on the first report of accident form required by this chapter.
  6. Workers' compensation specialists shall conduct benefit review conferences. The commissioner shall institute and maintain an education and training program for workers' compensation specialists, who must be employees of the division. The specialists shall be trained in the principles and procedures of dispute mediation. The commissioner is authorized to consult or enter into contracts with the federal mediation and conciliation service or other appropriate organizations to accomplish this purpose.
  7. In conducting benefit review conferences, the workers' compensation specialist shall:
    1. Mediate disputes between the parties and assist in the adjustment of claims consistent with this chapter and the policies of the commissioner, before and after the benefit review conference;
    2. Thoroughly inform all parties of their rights and responsibilities under this chapter, including the right of any party to be represented by an attorney of the party's choice;
    3. Ensure that all documents and information relating to the employees' wages, medical condition, and any other information pertinent to the resolution of disputed issues are contained in the claim file at the conference, especially in cases in which the employee is not represented by an attorney; and
    4. Determine whether, under any proposed settlement, the employee is receiving, substantially, the benefits provided by this chapter.
  8. A benefit review conference shall be requested at any time within the limitation period or periods provided in §§ 50-6-203 or 50-6-306. A workers' compensation specialist shall have the authority to continue or reschedule a benefit review conference. A workers' compensation specialist shall also have the authority to cancel or waive a benefit review conference, solely within the discretion of that workers' compensation specialist.
  9. For the purpose of conducting discovery, workers' compensation specialists shall have the authority, either on their own or at the request of either party, to refer matters to a specially designated attorney within the department who may issue subpoenas, effect discovery, and issue protective orders in the same manner as an administrative judge or hearing officer pursuant to § 4-5-311.
  10. The workers' compensation specialist may not take testimony but may direct questions to an employee, an employer, or a representative of an insurance carrier to supplement or clarify information in a claim file.
  11. The workers' compensation specialist shall maintain a file concerning these proceedings.
  12. The workers' compensation specialist shall not engage in litigation or determination of workers' compensation claims outside of the workers' compensation specialist's duties as a workers' compensation specialist.
  13. The commissioner shall establish a program of continuing education and training for workers' compensation specialists in order to assure that specialists maintain current and appropriate skills and knowledge in performing their duties. The program of continuing education shall include, at a minimum, seven (7) hours of continuing education each fiscal year. The minimum seven (7) hours of education shall be specifically in the area of Workers' Compensation Law, compiled in this chapter, and shall be in addition to any mediation training provided to the specialists. Three (3) of the seven (7) hours of education shall be approved by the Tennessee commission on continuing legal education and specialization. In addition to the annual seven-hour continuing education requirement, each specialist hired by the department shall be provided, within one (1) month of the date of hire, formal training and education, which shall include training on the department's workers' compensation system, the Tennessee workers' compensation statutes and caselaw, and the rules and regulations of the division of workers' compensation. Documentation reflecting the type of education and training provided pursuant to this subsection (m) shall be maintained by the administrator of the division of workers' compensation. Documentation of each educational program shall include the date of the program, the name of each specialist attending, a description of the educational program including topics covered, the name of the sponsor or provider of the educational program and the number of hours for each educational program.

Acts 1992, ch. 900, § 11; 1996, ch. 944, §§ 19, 20; 1999, ch. 242, § 1; 1999, ch. 520, § 41; 2004, ch. 962, §§ 18, 19; 2005, ch. 390, § 8.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2004, ch. 962, § 51 provided, in part, that § 18 shall apply to accidents or injuries occurring on or after January 1, 2005.

The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

Law Reviews.

Mediation U.S.A. (Peter S. Chantilis), 26 U. Mem. L. Rev. 1031 (1996).

NOTES TO DECISIONS

1. Construction.

Despite the fact that a dispute over workers' compensation benefits can be submitted to a specialist for alternative dispute resolution, the trial court still has the power to award pre-trial workers' compensation benefits; moreover, the trial court is not required to conduct a full evidentiary hearing prior to awarding such benefits if the determination can be made from the record. McCall v. Nat'l Health Corp., 100 S.W.3d 209, 2003 Tenn. LEXIS 215 (Tenn. 2003).

Trial court erred in voiding a final administrative order of the Department of Labor (DOL) awarding an employee attorney fees in her actions to enforce a workers'  compensation settlement because the trial court lacked subject matter jurisdiction to hear the matter as a Uniform Administrative Procedures Act (UAPA), T.C.A. § 4-5-101 et seq. appeal; the informal dispute resolution procedures the DOL established for its specialists do not provide for a contested case hearing as required by the UAPA, T.C.A. § 4-5-322(a)(1). C.H. Guenther & Son, Inc. v. Head, — S.W.3d —, 2012 Tenn. App. LEXIS 852 (Tenn. Ct. App. Dec. 10, 2012).

Because the workers'  compensation statutes do not expressly indicate otherwise, the workers'  compensation specialist process does not do away with a party's right to seek judicial relief, and if a party chooses to utilize the permissive administrative specialist process, that decision does not preclude further judicial review; in the event that the post-settlement/post-judgment administrative process fails to produce a resolution acceptable to both parties, the workers'  compensation statutes give an aggrieved party the right to initiate an action in the court with workers'  compensation jurisdiction to enforce the settlement. C.H. Guenther & Son, Inc. v. Head, — S.W.3d —, 2012 Tenn. App. LEXIS 852 (Tenn. Ct. App. Dec. 10, 2012).

50-6-237. Court of workers' compensation claims.

There is created the court of workers' compensation claims in the bureau of workers' compensation, which shall have original and exclusive jurisdiction over all contested claims for workers' compensation benefits when the date of the alleged injury is on or after July 1, 2014. The administrator shall have sole administrative authority over the court including authority to appoint, and to remove, workers' compensation judges. The administrator shall promulgate rules and regulations consistent with this chapter in order to fulfill the purposes of this chapter in an orderly and efficient manner.

Acts 1992, ch. 900, § 12; 2001, ch. 244, § 1; 2007, ch. 513, § 2; 2013, ch. 289, § 78; 2015, ch. 341, § 15.

Compiler's Notes. Prior to the 2013 amendment, the former provisions of this section related to benefit review conferences.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Worker's Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, rewrote the section which read: “(a) A benefit review conference is a nonadversarial, informal dispute resolution proceeding designed to:“(1) Explain, orally and in writing, the rights of the respective parties to a workers' compensation claim and the procedures necessary to protect those rights;“(2) Discuss the facts of the claim, review available information in order to evaluate the claim, and delineate the disputed issues;“(3) Mediate and resolve disputed issues by mutual agreement of the parties in accordance with this chapter and the policies of the commissioner;“(4) Provide an opportunity for, but not to compel, a binding settlement of some or all of the issues present at the time;“(5) Facilitate the resolution of issues without the expense of litigation or attorneys' fees for either party; and“(6) Determine, under any proposed settlement, whether any employee is receiving, substantially, the benefits provided by this chapter.“(b) Any person charging a fee specifically for the representation of an employee in any early dispute resolution proceeding or benefit review conference under this chapter shall be an attorney licensed to practice law in the state.“(c) When a benefit review conference is held, both the employee and the employer, or the employer's insurer, shall provide that a person with the authority to settle the dispute attends the conference. Parties entering into the benefit review conference process are required to mediate in good faith. Each party must be prepared to consider offers made by the other party. When a specialist determines that a party is not prepared to mediate as required or believes a party is not mediating in good faith, the specialist shall include comments to that effect in the report of the proceeding. Failure to comply with this section may subject the party or their representative to a civil penalty of not less than fifty dollars ($50.00) nor more than five thousand dollars ($5000).”

The 2015 amendment substituted “bureau” for “division” in the first sentence.

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-237. Purpose of benefit review conference — Paid representation required to be by licensed attorney. [Applicable to injuries occurring prior to July 1, 2014.]

  1. A benefit review conference is a nonadversarial, informal dispute resolution proceeding designed to:
    1. Explain, orally and in writing, the rights of the respective parties to a workers' compensation claim and the procedures necessary to protect those rights;
    2. Discuss the facts of the claim, review available information in order to evaluate the claim, and delineate the disputed issues;
    3. Mediate and resolve disputed issues by mutual agreement of the parties in accordance with this chapter and the policies of the commissioner;
    4. Provide an opportunity for, but not to compel, a binding settlement of some or all of the issues present at the time;
    5. Facilitate the resolution of issues without the expense of litigation or attorneys' fees for either party; and
    6. Determine, under any proposed settlement, whether any employee is receiving, substantially, the benefits provided by this chapter.
  2. Any person charging a fee specifically for the representation of an employee in any early dispute resolution proceeding or benefit review conference under this chapter shall be an attorney licensed to practice law in the state.
  3. When a benefit review conference is held, both the employee and the employer, or the employer's insurer, shall provide that a person with the authority to settle the dispute attends the conference. Parties entering into the benefit review conference process are required to mediate in good faith. Each party must be prepared to consider offers made by the other party. When a specialist determines that a party is not prepared to mediate as required or believes a party is not mediating in good faith, the specialist shall include comments to that effect in the report of the proceeding. Failure to comply with this section may subject the party or their representative to a civil penalty of not less than fifty dollars ($50.00) nor more than five thousand dollars ($5000).

Acts 1992, ch. 900, § 12; 2001, ch. 244, § 1; 2007, ch. 513, § 2.

Attorney General Opinions. The department of labor is not prevented by T.C.A. § 20-7-106 from scheduling a benefit review conference on a case where the attorney is a legislator and the general assembly is in session, OAG 02-134 (12/19/02).

NOTES TO DECISIONS

1. Construction.

Despite the fact that a dispute over workers' compensation benefits can be submitted to a specialist for alternative dispute resolution, the trial court still has the power to award pre-trial workers' compensation benefits; moreover, the trial court is not required to conduct a full evidentiary hearing prior to awarding such benefits if the determination can be made from the record. McCall v. Nat'l Health Corp., 100 S.W.3d 209, 2003 Tenn. LEXIS 215 (Tenn. 2003).

50-6-238. Appointment of workers' compensation judges — Duties of judges — Appointment of chief judge of the court of workers' compensation claims — Duties of chief judge — Appointment of clerk of the court of workers' compensation claims — Duties of clerk.

    1. On or after July 1, 2013, the administrator shall appoint qualified individuals to serve as workers' compensation judges. Workers' compensation judges shall be Tennessee licensed attorneys in good standing with at least five (5) years experience in workers' compensation matters and shall be at least thirty (30) years of age. Workers' compensation judges shall be executive service employees of the state as defined in § 8-30-103.
      1. In making the initial appointments, the administrator shall have authority to shorten and stagger the terms of workers' compensation judges to ensure that the terms of no more than seven (7) workers' compensation judges shall terminate at the same time.
      2. Except for the initial appointment of candidates to fill the position of workers' compensation judge, upon appointment, each workers' compensation judge shall serve a term of six (6) years. Terms shall begin on July 1 and expire six (6) years later, on June 30. No workers' compensation judge shall serve more than three (3) full terms, and service of more than half of a term shall constitute service of one (1) full term. If a sitting workers' compensation judge is removed or resigns, a vacancy shall exist in the office, which shall be filled for the unexpired term by a person meeting the requirements of subdivision (a)(1).
      3. Any workers' compensation judge may be reappointed by the administrator upon expiration of the term.
      4. If a workers' compensation judge leaves the position prior to the expiration of the term, the administrator shall appoint an individual meeting the qualifications of this section to serve the unexpired portion of the term. The individual may be reappointed by the administrator upon expiration of the term. Any workers' compensation judge appointed to serve less than a full term to fill a vacancy created by the removal or resignation of a sitting workers' compensation judge shall be eligible to serve an additional three (3) full terms.
    2. It shall be the duty of a workers' compensation judge to hear and determine claims for compensation, to approve settlements of claims for compensation, to conduct hearings, and to make orders, decisions, and determinations. Workers' compensation judges shall conduct hearings in accordance with the Tennessee Rules of Civil Procedure, the Tennessee Rules of Evidence, and the rules adopted by the bureau and shall have authority to swear in witnesses at hearings and other court of workers' compensation claims functions, to issue subpoenas, and to compel obedience to their judgments, orders, and process through the assessment of a penalty as provided in § 50-6-118.
    3. In any claim for workers' compensation death benefits, a workers' compensation judge shall have the authority to appoint a guardian ad litem consistent with § 37-1-149 and Tennessee Supreme Court Rule 40. For purposes of this section, “guardian ad litem” means a lawyer appointed by the court to advocate for the best interests of a child and to ensure that the child's concerns and preferences are effectively advocated. The court shall have authority to award a reasonable fee for the services provided by the guardian ad litem, which shall be paid by the employer.
    1. On or after July 1, 2013, the administrator shall appoint a qualified individual to serve as chief judge of the court of workers' compensation claims. The individual shall be a Tennessee licensed attorney in good standing with at least seven (7) years experience in workers' compensation matters. The chief judge shall be an executive service employee of the state as defined in § 8-30-103.
    2. In addition to performing the duties required of a workers' compensation judge by subdivision (a)(3), it shall be the duty of the chief judge, under the rules adopted by the bureau, to administer the day to day operations of the court of workers' compensation claims and supervise the activities of workers' compensation judges.
    3. Upon appointment, the chief judge shall serve a term of six (6) years and may be reappointed by the administrator upon expiration of the term. No chief judge of the court of workers' compensation claims shall serve more than two (2) full terms, and service of more than half of a six (6) year term shall constitute service of one (1) full term. Any chief judge of the court of workers' compensation claims appointed to serve less than a full term to fill a vacancy created by the removal or resignation of the previous chief judge shall be eligible to serve an additional two (2) full terms.
  1. Unless otherwise provided by law or clearly inapplicable in context, the Tennessee Code of Judicial Conduct, Rule 10, Canons 1-4, of the Rules of the Tennessee Supreme Court, and any subsequent amendments thereto, shall apply to all workers' compensation judges. However, any complaints regarding the conduct of a workers' compensation judge under the code shall be made to the chief workers' compensation judge. Any complaints about the chief judge shall be made to the administrator.
  2. The administrator shall have authority to remove a workers' compensation judge or the chief judge during an unexpired term for the commission of any of the judicial offenses provided in § 17-5-301(j)(1).
  3. Any person appointed to serve as a workers' compensation judge or as the chief judge shall be required to take an oath or affirmation to support the constitutions of the United States and of this state, and to administer justice without respect of persons, and impartially to discharge all the duties incumbent upon a judge to the best of the judge's skill and ability. The governor, an active or retired Tennessee judge or chancellor, or an active or retired judge of the court of workers' compensation claims or workers' compensation appeals board may administer the oath.
  4. No workers' compensation judge or chief judge shall practice law, or perform any of the functions of attorney or counsel, in any of the courts of this state, except in cases in which the judge may have been employed as counsel previous to the appointment as a workers' compensation judge or chief judge. A newly appointed workers' compensation judge or chief judge can practice law only in an effort to wind up the judge's practice and must end the practice of law as soon as reasonably possible and in no event longer than one hundred eighty (180) days after assuming the position of workers' compensation judge or chief judge.
  5. When considering the appointment of an individual to serve as a workers' compensation judge or as the chief judge, the administrator shall consider comment from the members of the business, labor and legal communities concerning the suitability of the individual for appointment as a workers' compensation judge or the chief judge.
  6. On or after July 1, 2013, the administrator shall appoint a qualified individual to serve as the clerk of the court of workers' compensation claims whose duty it shall be to perform all the clerical functions of the court. The clerk of the court of workers' compensation claims shall be an executive service employee of the state as defined in § 8-30-103.
  7. The judges of the court of workers' compensation claims shall have execution authority as provided in title 26.

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; 2013, ch. 289, § 79; 2015, ch. 341, §§ 9-11, 15; 2016, ch. 816, § 8.

Compiler's Notes. Prior to the 2013 amendment, the former provisions of this section related to the assistance of worker's compensation specialists in determining benefit awards.

Acts 2006, ch. 772, § 1 rewrote subsection (d) in its entirety. Acts 2006, ch. 1014, § 2 purported to rewrite the first sentence of subdivision (d)(1) to read as follows: “In addition to any other penalty provided by law, if an insurer, self-insured employer, uninsured 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, the commissioner of labor and workforce development may assess a penalty in the amount of ten thousand dollars ($10,000).” The provisions of ch. 1014, § 2 have not been codified. It appears that the intent of ch. 1014 was to amend (d)(1) as it existed prior to the amendment by ch. 772. Language similar to that contained in (d)(1) prior to the ch. 772 amendment now appears in (d)(3).

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective January 1, 2014, rewrote the section which read: “(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) Notwithstanding 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.“(3) [See the Compiler's Notes.] 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.”

The 2015 amendment rewrote the second sentence in (a)(3) which read: “Workers' compensation judges shall conduct hearings in accordance with the Tennessee Rules of Civil Procedure, the Tennessee Rules of Evidence and the rules adopted by the division and shall have authority to issue subpoenas and to compel obedience to their judgments, orders, and process through the assessment of a penalty as provided in § 50-6-118.”; added (a)(4); substituted “bureau” for “division” in (a)(3) and (b)(2); and added (i).

The 2016 amendment rewrote the last sentence in (e), which read: “The oath may be taken before another workers' compensation judge, any inferior court judge, a retired judge, a retired chancellor or an active or retired judge of the court of general sessions.”

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2016, ch. 816, § 11. April 14, 2016.

NOTES TO DECISIONS

1. Statute of Limitations.

Trial court erred in granting an employer's motion for summary judgment and dismissing an employee's case because genuine issues of material fact existed on questions involving the commencement of the statute of limitations; genuine issues of material fact existed concerning whether the employee's condition was a gradually occurring injury and/or an occupational disease, and genuine issues of material fact existed concerning the employee's incapacity for work and reason for leaving the employer. Williams v. SWS LLC, — S.W.3d —, 2019 Tenn. LEXIS 448 (Tenn. Sept. 20, 2019).

Trial court erred in granting an employer's motion for summary judgment and dismissing an employee's case because genuine issues of material fact existed on questions involving the commencement of the statute of limitations; the trial court applied the discovery rule, but the discovery rule had no application where an employee was well aware of her claim. Williams v. SWS LLC, — S.W.3d —, 2019 Tenn. LEXIS 448 (Tenn. Sept. 20, 2019).

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. [Applicable to injuries occurring prior to July 1, 2014.]

      1. 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.
        1. 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.
        2. 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.
      2. 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.
    1. 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.
    2. 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).
    3. Any benefits ordered by a workers' compensation specialist as provided in this subsection (a) shall be ordered on a form prescribed by the commissioner.
    4. If, under all of the relevant circumstances, the specialist deems it to be appropriate, the specialist shall order the retroactive payment of benefits.
      1. 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.
      2. 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.
      3. 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.
  1. 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.
  2. 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.
      1. 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.
        1. 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.
        2. 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.
        3. 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).
      1. 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.
      2. 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.]

    1. 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.
    2. 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.

Compiler's Notes. Acts 2006, ch. 772, § 1 rewrote subsection (d) in its entirety. Acts 2006, ch. 1014, § 2 purported to rewrite the first sentence of subdivision (d)(1) to read as follows: “In addition to any other penalty provided by law, if an insurer, self-insured employer, uninsured 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, the commissioner of labor and workforce development may assess a penalty in the amount of ten thousand dollars ($10,000).” The provisions of ch. 1014, § 2 have not been codified. It appears that the intent of ch. 1014 was to amend (d)(1) as it existed prior to the amendment by ch. 772. Language similar to that contained in (d)(1) prior to the ch. 772 amendment now appears in (d)(3).

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

    The division of workers' compensation is now referred to as the bureau of workers' compensation.

    1. Constitutionality. 2. Construction. 3. Exhaustion of Remedies. 4. Delay. 5. Appeal

NOTES TO DECISIONS

1. Constitutionality.

T.C.A. § 50-6-238 was not unconstitutional on its face as the post-deprivation remedy of a de novo judicial hearing and the prospect of a full refund from the Second Injury Fund for benefits paid in compliance with an erroneous order by a workers'  compensation specialist satisfied an employer's right to procedural due process. Randstad N. Am., L.P. v. Tenn. Dep't of Labor & Workforce Dev., 372 S.W.3d 98, 2011 Tenn. App. LEXIS 601 (Tenn. Ct. App. Nov. 1, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 191 (Tenn. Mar. 8, 2012).

2. Construction.

Despite the fact that a dispute over workers' compensation benefits can be submitted to a specialist for alternative dispute resolution, the trial court still has the power to award pre-trial workers' compensation benefits; moreover, the trial court is not required to conduct a full evidentiary hearing prior to awarding such benefits if the determination can be made from the record. McCall v. Nat'l Health Corp., 100 S.W.3d 209, 2003 Tenn. LEXIS 215 (Tenn. 2003).

Language of T.C.A. § 50-6-238(d)(3) expressly applies with respect to penalties assessed against insurers or self-insured employers because there is no indication that the legislature intended these provisions to extend to a specialist's order regarding attorney fees where no penalty is assessed; the workers'  compensation provisions regarding penalties do not reference attorney fees as penalties, T.C.A. § 50-6-118, Tenn. Comp. R. & Regs. § 0800-02-13. C.H. Guenther & Son, Inc. v. Head, — S.W.3d —, 2012 Tenn. App. LEXIS 852 (Tenn. Ct. App. Dec. 10, 2012).

Because the workers'  compensation statutes do not expressly indicate otherwise, the workers'  compensation specialist process does not do away with a party's right to seek judicial relief, and if a party chooses to utilize the permissive administrative specialist process, that decision does not preclude further judicial review; in the event that the post-settlement/post-judgment administrative process fails to produce a resolution acceptable to both parties, the workers'  compensation statutes give an aggrieved party the right to initiate an action in the court with workers'  compensation jurisdiction to enforce the settlement. C.H. Guenther & Son, Inc. v. Head, — S.W.3d —, 2012 Tenn. App. LEXIS 852 (Tenn. Ct. App. Dec. 10, 2012).

3. Exhaustion of Remedies.

Although the Tennessee Workers'  Compensation Act, T.C.A. § 50-6-101 et seq., was a remedial statute and was to be equitably construed under T.C.A. § 50-6-116, an employee's administrative remedies were not effectively exhausted for T.C.A. §§ 50-6-203(a) and 50-6-225(a)(1) purposes by the Tennessee Department of Labor's long period of inaction on the employee's request for assistance under T.C.A. § 50-6-238. Chapman v. Davita, Inc., 380 S.W.3d 710, 2012 Tenn. LEXIS 643 (Tenn. Sept. 21, 2012).

4. Delay.

Trial court lacked subject matter jurisdiction over a workers'  compensation complaint since an employee failed to exhaust her administrative remedies as required by T.C.A. §§ 50-6-203(a) and 50-6-225(a)(1) as she bypassed the benefit review conference process after the Tennessee Department of Labor (TDOL) did not act promptly on her request for assistance under T.C.A. § 50-6-238; the employee had alternatives other than filing suit to prompt TDOL to act, including additional contact with the specialist, contact with the Administration of the Tennessee Division (now Bureau) of Workers Compensation, or, as a last resort, filing a mandamus action. Chapman v. Davita, Inc., 380 S.W.3d 710, 2012 Tenn. LEXIS 643 (Tenn. Sept. 21, 2012).

5. Appeal

Trial court erred in voiding a final administrative order of the Department of Labor (DOL) awarding an employee attorney fees in her actions to enforce a workers'  compensation settlement because the trial court lacked subject matter jurisdiction to hear the matter as a Uniform Administrative Procedures Act (UAPA), T.C.A. § 4-5-101 et seq. appeal; the informal dispute resolution procedures the DOL established for its specialists do not provide for a contested case hearing as required by the UAPA, T.C.A. § 4-5-322(a)(1). C.H. Guenther & Son, Inc. v. Head, — S.W.3d —, 2012 Tenn. App. LEXIS 852 (Tenn. Ct. App. Dec. 10, 2012).

Uniform Administrative Procedures Act (UAPA) appeal provision of T.C.A. § 50-6-238(d)(3) applies only with respect to penalties assessed by the Department of Labor (against an employer, and the administrative procedures described in T.C.A. § 50-6-204(g)(2) and T.C.A.§ 50-6-238 do not provide for a contested case hearing. C.H. Guenther & Son, Inc. v. Head, — S.W.3d —, 2012 Tenn. App. LEXIS 852 (Tenn. Ct. App. Dec. 10, 2012).

50-6-239. Request of hearing after issuance of dispute certification notice — Issuance of notice — Permission required to present issues not certified by mediator — Conduct of hearings — Hearings of disputes on expedited basis — Discovery disputes —Penalties for failure to comply with orders — Filing fees — Judicial review of orders.

  1. Within sixty (60) days after issuance of a dispute certification notice by a workers' compensation mediator, a party seeking further resolution of disputed issues shall file a request for a hearing with the bureau, and the clerk of the court of workers' compensation claims shall issue notice to all parties identifying the judge to whom the claim has been assigned and the procedure for scheduling and preparing for a hearing.
    1. Unless permission has been granted by the assigned workers' compensation judge, only issues that have been certified by a workers' compensation mediator within a dispute certification notice may be presented to the workers' compensation judge for adjudication.
    2. Following the issuance of a dispute certification notice and assignment of the claim to a workers' compensation judge, the workers' compensation judge may grant permission for parties to present issues that have not been certified by a workers' compensation mediator only upon finding that:
      1. The parties did not have knowledge of the issue prior to issuance of the dispute certification and could not have known of the issue despite reasonable investigation; and
      2. Prohibiting presentation of the issue would result in substantial injustice to the petitioning party.
  2. Hearings of disputes shall be conducted in the following manner:
    1. All hearings shall be conducted within the timeframes adopted by the administrator through the promulgation of rules. The Tennessee Rules of Evidence and the Tennessee Rules of Civil Procedure shall govern proceedings at all hearings before a workers' compensation judge unless an alternate procedural or evidentiary rule has been adopted by the administrator. Whenever the administrator has adopted an alternate procedural or evidentiary rule that conflicts with the Tennessee Rules of Civil Procedure or the Tennessee Rules of Evidence, the rule adopted by the administrator shall apply;
    2. Following the hearing, the workers' compensation judge shall issue a compensation order that sets forth findings of fact and conclusions of law, and, if appropriate, an order for the payment of benefits under the workers' compensation law. The workers' compensation judge shall note the date of entry on the order and a copy of the order shall be distributed to the parties in accordance with procedures adopted by the administrator;
    3. If a party who has filed a request for hearing files a notice of nonsuit of the action, either party shall have ninety (90) days from the date of the order of dismissal to institute an action for recovery of benefits under this chapter;
    4. All hearings before the workers' compensation judge shall be open to the public. The parties may provide a court reporter for the preparation of a record;
    5. The testimony of any witness may be taken by deposition according to the Tennessee Rules of Civil Procedure or may be taken before the workers' compensation judge. No costs shall be charged, taxed or collected by the workers' compensation judge for the appearance of witnesses except fees for witnesses who testify under subpoena. The witnesses shall be allowed the same fee for attendance and mileage as is fixed by law in civil actions;
    6. Unless the statute provides for a different standard of proof, at a hearing the employee shall bear the burden of proving each and every element of the claim by a preponderance of the evidence;
    7. There shall be a presumption that the findings and conclusions of the workers' compensation judge are correct, unless the preponderance of the evidence is otherwise. The decision of the workers' compensation judge shall become final thirty (30) days after the workers' compensation judge enters a compensation order, unless a party in interest seeks an appeal of the decision from the workers' compensation appeals board pursuant to this chapter. If a party in interest does not file a timely request for appeal to the workers' compensation appeals board, the order of the workers' compensation judge shall become final and may be appealed to the state supreme court in the manner provided by § 50-6-225;
    8. The workers' compensation judge may, in his discretion, assess discretionary costs including reasonable fees for depositions of medical experts against the employer upon adjudication of the employee's claim as compensable;
    9. After an order entered by a workers' compensation judge has become final, the parties subject to the order shall have five (5) business days after all appeals are exhausted to comply with the order or the noncompliant parties shall be subject to penalization as provided by § 50-6-118;
    10. In any claim where the employee has suffered a catastrophic injury, the workers' compensation judge assigned to the claim shall have discretion to order that the claim be heard on an expedited basis. If the assigned workers' compensation judge orders an expedited hearing of the claim, the claim shall be given priority over all cases on the workers' compensation judge's trial docket with the exception of any other claims that the workers' compensation judge has previously ordered to be heard on an expedited basis under this subdivision (c)(10).
  3. Hearings of disputes on an expedited basis shall be conducted in the following manner:
    1. Upon motion of either party made at any time after a dispute certification notice has been issued by a workers' compensation mediator, a workers' compensation judge may, at the judge's discretion, hear disputes over issues provided in the dispute certification notice concerning the provision of temporary disability or medical benefits on an expedited basis and enter an interlocutory order upon determining that the injured employee would likely prevail at a hearing on the merits. A copy of the motion shall be served by the moving party on all other parties to the claim in accordance with procedures adopted by the administrator;
    2. A workers' compensation judge is not required to hold a full evidentiary hearing before issuing an interlocutory order for temporary disability or medical benefits;
    3. If temporary disability or medical benefits are ordered, the employer shall have seven (7) business days to comply with the order or to request an appeal from the workers' compensation appeals board. Unless modified by the workers' compensation appeals board following an appeal or unless a subsequent order to modify an interlocutory order for temporary disability or medical benefits is issued by the workers' compensation judge presiding over the claim, the interlocutory order shall remain in effect pending conclusion of the matter by hearing according to the procedure provided in subsection (c);
    4. If a motion for temporary disability or medical benefits is denied on the basis that the claim is not compensable, the proceeding shall continue according to the procedure provided in subsection (c) unless the employee files a request for an appeal to the workers' compensation appeals board. At any time after the employee has exhausted the procedures for seeking an appeal from the workers' compensation appeals board, as provided in this chapter, the workers' compensation judge may entertain an appropriate motion from the employer for dismissal of the claim.
  4. All discovery disputes, including motions to compel and for protective order, shall be adjudicated upon the review of written motions and affidavits. A workers' compensation judge may, in the judge's discretion, convene a hearing on a discovery dispute only upon a finding that good cause to convene a hearing exists.
  5. The failure of any party to comply in a timely manner with an interlocutory or final order issued by a workers' compensation judge may result in the assessment of a penalty as provided in § 50-6-118.
  6. The administrator shall have authority to assess filing fees sufficient to offset the cost of administering this chapter.
  7. Except as otherwise provided in § 50-6-118, no order issued by a workers' compensation judge shall be subject to judicial review pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1992, ch. 900, § 14; 1996, ch. 944, § 22; 1999, ch. 520, § 41; 2004, ch. 962, § 20; 2008, ch. 1183, §§ 4, 7; 2013, ch. 289, § 82; 2015, ch. 341, §§ 12, 15.

Compiler's Notes. Prior to the 2013 amendment, the former provisions of this section related to requests for benefit review conferences.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, rewrote the section which read: “(a) In all cases in which the parties have any issues in dispute, whether the issues are related to medical benefits, temporary disability benefits, or issues related to the final resolution of a matter, the parties shall request the department to hold a benefit review conference.“(b) The parties to a dispute shall attend and participate in a benefit review conference that addresses all issues related to a final resolution of the matter as a condition precedent to filing a complaint with a court of competent jurisdiction, unless the benefit review conference process is otherwise exhausted pursuant to rules promulgated by the commissioner.“(c)(1) The division shall have the authority to schedule a date specific for the benefit review conference. The division shall endeavor to work with the parties or their representatives to schedule a date convenient to the parties, and the parties shall cooperate in scheduling the conference; however, in the event the parties cannot agree to a date within forty-five (45) days of the date a benefit review conference is requested or the date on which the employee reaches maximum medical improvement, whichever date is later, the division shall schedule the conference on a specific date and give the parties written notice of the date and the parties shall attend the benefit review conference on the date scheduled by the division.“(2) If a request for a benefit review conference is on file for a period in excess of one (1) year, the division shall have the authority to schedule a date specific for the benefit review conference and give the parties written notice at their last known address.“(3) If the division fails to conduct a benefit review conference within sixty (60) days of receipt of a request for a benefit review conference or the date on which the employee reaches maximum medical improvement, whichever date is later, the parties may agree to hire a private Rule 31 mediator to conduct the mediation. Any agreement reached through private Rule 31 mediation must be approved by a court or the department in accordance with § 50-6-206.“(d) The commissioner is authorized to promulgate rules concerning all aspects of the administrative process related to benefit review conferences pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.”

The 2015 amendment substituted “bureau” for “division” in (a) and substituted “filing fees” for “a filing fee” in (g).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

Workers' Compensation Appeals Board Decisions. An employee alleged a repetitive motion injury to her right hand and wrist while performing housekeeping and janitorial activities for her employer. The Workers' Compensation Appeals Board held that the evidence did not preponderate against the trial court's determination that the employee is likely to prevail at trial in establishing a compensable gradual injury. The proof as presented by the employee did not meet the preponderance of the evidence standard applicable at a compensation hearing, but it met the lesser standard necessary to support the trial court's interlocutory order. Accordingly, the Board affirmed the trial court's order for medical benefits and the payment of certain past medical bills. Miller v. Old Folks Mission Center, Inc., 2019 TN Wrk Comp App Bd LEXIS 1.

At an expedited hearing, the trial court properly determined the employee, an appliance salesperson, who allegedly suffering work-related injuries to his neck, back, and wrist when a refrigerator he was moving tipped and hit his head, presented sufficient evidence to establish he would likely prevail at trial and ordered the employer to provide medical and temporary disability benefits even though the employer argued that the employee's medical records established a history of pre-injury evaluations for neck  and back complaints, where the trial court found the employee's explanation that the previous problems were “muscular rather than skeletal” to be “plausible.” Glenn v. Sears Outlet Stores, LLC, 2019 TN Wrk Comp App Bd LEXIS 8.

The trial court’s expedited hearing order determining the employee presented sufficient proof that she is likely to succeed at trial and ordering the employer to authorize the revision surgery to the employee’s pre-existing knee replacement was affirmed, where there was no basis in this record to determine that the trial court erred in accepting the causation opinion of the authorized treating physician  over that of the employer's medical expert. Foster v. Andy Frain Services, Inc., 2019 TN Wrk Comp App Bd LEXIS 10.

An employee, a mental health aid employed in a residential group home for teens, alleged suffering  injuries as a result of physical altercations occurring in the group home. The employer did not dispute the occurrence of the incidents and acknowledged that the employee reported suffering  headaches  as a result, but denied that the employee's need for recommended  psychiatric treatment arose primarily out of and in the course and scope of her employment. Based upon the authorized physician's referral of the employee to specialists for additional treatment and his taking the employee out of work until she is seen by such specialists, the Workers Compensation Appeal Board concluded the evidence supported the trial court's determination that the employee is entitled to the medical benefits and temporary disability benefits ordered by the trial court. Gautreaux v. Hermitage Hall, 2019 TN Wrk Comp App Bd LEXIS 12.

A preponderance of the evidence supported the trial court's determination that an employee is likely to prevail at trial on the issue of medical causation, where it was unrefuted that the employee worked for over twenty years in a job that exposed him to lead and that he has been diagnosed with elevated lead levels in his blood.  He suffers from various medical conditions that have been causally related to lead exposur, and a physician has opined the employee's occupational lead exposure contributed more than fifty percent in causing his medical conditions. Wilson v. O.G. Kelley and Company, 2019 TN Wrk Comp App Bd LEXIS 13.

NOTES TO DECISIONS

1. Burden of Proof.

It was proper to deny an employee's claim for workers'  compensation because the evidence did not preponderate against the trial court's finding that the employee failed to sustain his burden of proof that his injury arose primarily out of his employment; a doctor did not testify within a reasonable degree of medical certainty, either directly or indirectly, that the employee's work activity more likely than not contributed more than fifty percent in causing the injury. Panzarella v. Amazon.Com, Inc., — S.W.3d —, 2018 Tenn. LEXIS 244 (Tenn. May 16, 2018).

2. Evidence.

Treating physician's opinion that a claimant's injury was not work-related was entitled to a presumption of correctness, and the claimant did not present sufficient medical evidence to overcome the presumption. Thysavathdy v. Bridgestone Ams. Tire Operations, — S.W.3d —, 2018 Tenn. LEXIS 313 (Tenn. June 8, 2018).

50-6-239. Motion for benefit review conference — Motion for expedited adjudication — Specialists. [Applicable to injuries occurring prior to July 1, 2014.]

  1. In all cases in which the parties have any issues in dispute, whether the issues are related to medical benefits, temporary disability benefits, or issues related to the final resolution of a matter, the parties shall request the department to hold a benefit review conference.
  2. The parties to a dispute shall attend and participate in a benefit review conference that addresses all issues related to a final resolution of the matter as a condition precedent to filing a complaint with a court of competent jurisdiction, unless the benefit review conference process is otherwise exhausted pursuant to rules promulgated by the commissioner.
    1. The division shall have the authority to schedule a date specific for the benefit review conference. The division shall endeavor to work with the parties or their representatives to schedule a date convenient to the parties, and the parties shall cooperate in scheduling the conference; however, in the event the parties cannot agree to a date within forty-five (45) days of the date a benefit review conference is requested or the date on which the employee reaches maximum medical improvement, whichever date is later, the division shall schedule the conference on a specific date and give the parties written notice of the date and the parties shall attend the benefit review conference on the date scheduled by the division.
    2. If a request for a benefit review conference is on file for a period in excess of one (1) year, the division shall have the authority to schedule a date specific for the benefit review conference and give the parties written notice at their last known address.
    3. If the division fails to conduct a benefit review conference within sixty (60) days of receipt of a request for a benefit review conference or the date on which the employee reaches maximum medical improvement, whichever date is later, the parties may agree to hire a private Rule 31 mediator to conduct the mediation. Any agreement reached through private Rule 31 mediation must be approved by a court or the department in accordance with § 50-6-206.
  3. The commissioner is authorized to promulgate rules concerning all aspects of the administrative process related to benefit review conferences pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1992, ch. 900, § 14; 1996, ch. 944, § 22; 1999, ch. 520, § 41; 2004, ch. 962, § 20; 2008, ch. 1183, §§ 4, 7.

Compiler's Notes. A Rule 31 mediator, referred to in this section, is defined in Supreme Court Rule 31.

Acts 1996, ch. 944, § 57 provided that the amendment by that act shall apply to accidents and injuries occurring on and after January 1, 1997.

Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2004, ch. 962, § 51 provided, in part, that § 20 shall apply to accidents or injuries occurring on or after January 1, 2005.

The division of workers’ compensation  is now referred to as the bureau of workers’ compensation.

NOTES TO DECISIONS

1. Constitutionality.

Workers'  compensation claimants failed to establish that the benefit review conference in T.C.A. § 50-6-203(a), T.C.A. § 50-6-225(a)(1), and T.C.A. § 50-6-239(b) was unconstitutional; because injured workers are free to file suit and have rights judicially determined upon exhausting the review process, they are not deprived of right to be heard by judge. Lynch v. City of Jellico, 205 S.W.3d 384, 2006 Tenn. LEXIS 759 (Tenn. 2006), cert. denied, 549 U.S. 1280, 127 S. Ct. 1830, 167 L. Ed. 2d 320, 2007 U.S. LEXIS 3049 (2007).

2. Judicial Review.

Trial court did not have subject matter jurisdiction over an employer's suit seeking review of an order for medical benefits directing it to provide the employee with additional panels of physicians from which he could choose for treatment because the suit was filed before the administrative review process was exhausted; the employer's complaints had to first be addressed via the benefit review conference process, after which the employer had a right to a judicial hearing. Alstom Power, Inc. v. Head, — S.W.3d —, 2012 Tenn. App. LEXIS 107 (Tenn. Ct. App. Feb. 21, 2012).

3. Exhaustion of Remedies.

Chancery court erred in ordering a second panel of physicians outside of Tennessee to continue an injured employee's treatment because, pursuant to the certiorari statute, the court lacked subject matter jurisdiction over the matter due to the employer's failure to exhaust the benefit review conference process. Goodyear Tire & Rubber Co. v. Davis, — S.W.3d —, 2015 Tenn. App. LEXIS 380 (Tenn. Ct. App. May 26, 2015).

50-6-240. Approval or rejection of settlement agreements.

  1. The interested parties shall have the right to settle all matters of compensation between themselves, but all settlements shall be reduced to writing and shall be approved by a judge of the court of workers' compensation claims before they are binding on either party. It shall be the duty of the judge of the court of workers' compensation claims to whom any proposed settlement is presented for approval under this chapter, to examine the proposed settlement to determine whether the employee is receiving, substantially, the benefits provided by this chapter. Upon approving the settlement, a judgment shall be rendered on the settlement by the court of workers' compensation claims and duly entered by the clerk. The cost of the proceeding shall be borne by the employer. In all cases where the settlement proceedings or any other court proceedings for workers' compensation under this chapter involve a subsequent injury wherein the employee would be entitled to receive or is claiming compensation from the subsequent injury and vocational recovery fund provided for in § 50-6-208, the administrator shall be made a party defendant to the proceedings in an action filed by either the employer or the injured employee, and an attorney representing the bureau under the supervision of the attorney general and reporter shall represent the administrator in the proceeding. The court of workers' compensation claims, by its decree, shall determine the right of the employee to receive compensation from the fund.
  2. A workers' compensation judge shall approve or reject settlements submitted to the bureau within three (3) business days after the settlement has been received by the bureau and assigned to a workers' compensation judge for consideration.
  3. In approving settlements, a workers' compensation judge shall consider all pertinent factors and if the injured employee is not represented by counsel, then the workers' compensation judge shall thoroughly inform the employee of the scope of benefits available under this chapter and the employee's rights and the procedures necessary to protect those rights.
  4. Nothing in this section shall be construed to prohibit the parties from compromising and settling the issue of future medical benefits at any time; provided, that the settlement agreement is approved by a judge of the court of workers' compensation claims, and includes a provision confirming that the employee has been informed of the potential consequences of the settlement, if any, with respect to medicare and TennCare benefits and liabilities. Notwithstanding any other provision of this chapter, an employee who is determined to be permanently and totally disabled shall not be allowed to compromise and settle the employee's rights to future medical benefits.
  5. Notwithstanding any other provision of this section, if there is a dispute between the parties as to whether a claim is compensable, or as to the amount of compensation due, the parties may settle the matter without regard to whether the employee is receiving substantially the benefits provided by this chapter; provided, that the settlement is determined by a workers' compensation judge to be in the best interest of the employee.
  6. No party may settle a claim for permanent disability benefits unless the settlement agreement has been approved by a workers' compensation judge. Any settlement agreement not approved pursuant to this section is void.

Acts 1992, ch. 900, § 15; 1996, ch. 944, § 23; 2013, ch. 289, § 84; 2015, ch. 341, §§ 13, 15; 2016, ch. 816, § 2; 2017, ch. 344, § 1.

Compiler's Notes. Prior to the 2013 amendment, the former provisions of this section related to settlement agreements reached at benefit review conferences, reports on unresolved issues and filing of agreements and reports.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, rewrote the section which read: “(a)(1) A dispute may be resolved either in whole or in part at the benefit review conference. If the conference results in the resolution of some of the disputed issues by mutual agreement or in a settlement, the workers' compensation specialist shall reduce the agreement or the settlement to writing. The workers' compensation specialist and each party shall sign the agreement or settlement. A settlement is not effective unless it is approved in accordance with § 50-6-206, and takes effect on the date approved.“(2) The specialist shall note in a report on unresolved issues required by this section the failure of any party to furnish documents to the specialist on request by the specialist, to cooperate in scheduling, or to provide a representative who possessed settlement authority in attendance at the conference.“(b) If the dispute is not entirely resolved at the benefit review conference, the workers' compensation specialist shall prepare a written report that also includes:“(1) A statement of each agreed upon issue; and“(2) A statement of each issue raised but not agreed upon.“(c) The workers' compensation specialist shall file the signed agreement and the report with the commissioner and the court, as appropriate. Any party filing an action with a court of competent jurisdiction shall notify the division of the filing at the time of the filing. After receiving the notice, the division shall file within seven (7) days with such court any report on unresolved issues pursuant to this section resulting from a benefit review conference.”

The 2015 amendment substituted “bureau” for “division” in (b) and added (f).

The 2016 amendment rewrote (a) which read:“(a) A workers' compensation judge may approve a proposed settlement among the parties if:“(1) The settlement agreement has been signed by the parties; and“(2) The workers' compensation judge has determined that the employee is receiving, substantially, the benefits provided by this chapter, or, in cases subject to subsection (d), if the workers' compensation judge has determined that the settlement is in the best interest of the employee.”; added the first sentence in (d); and substituted “this section is void” for “this subsection (f) is void” at the end of (f).

The 2017 amendment substituted “subsequent injury and vocational recovery fund” for “second injury fund” in the next to the last sentence of (a).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2016, ch. 816, § 11. April 14, 2016.

Acts 2017, ch. 344, § 12. May 9, 2017.

50-6-240. Settlement agreement at conference — Written agreement or settlement — Report on unresolved issues — Filing. [Applicable to injuries occurring prior to July 1, 2014.]

    1. A dispute may be resolved either in whole or in part at the benefit review conference. If the conference results in the resolution of some of the disputed issues by mutual agreement or in a settlement, the workers' compensation specialist shall reduce the agreement or the settlement to writing. The workers' compensation specialist and each party shall sign the agreement or settlement. A settlement is not effective unless it is approved in accordance with § 50-6-206, and takes effect on the date approved.
    2. The specialist shall note in a report on unresolved issues required by this section the failure of any party to furnish documents to the specialist on request by the specialist, to cooperate in scheduling, or to provide a representative who possessed settlement authority in attendance at the conference.
  1. If the dispute is not entirely resolved at the benefit review conference, the workers' compensation specialist shall prepare a written report that also includes:
    1. A statement of each agreed upon issue; and
    2. A statement of each issue raised but not agreed upon.
  2. The workers' compensation specialist shall file the signed agreement and the report with the commissioner and the court, as appropriate. Any party filing an action with a court of competent jurisdiction shall notify the division of the filing at the time of the filing. After receiving the notice, the division shall file within seven (7) days with such court any report on unresolved issues pursuant to this section resulting from a benefit review conference.

Acts 1992, ch. 900, § 15; 1996, ch. 944, § 23.

Compiler's Notes. Acts 1996, ch. 944, § 57 provided that the amendment by that act shall apply to accidents and injuries occurring on and after January 1, 1997.

Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

The division of workers’ compensation  is now referred to as the bureau of workers’ compensation.

50-6-241. Maximum permanent partial disability awards for claims arising after July 1, 2004 but before July 1, 2014 — Public policy regarding legal immigration.

  1. [Deleted by 2013 amendment, effective July 1, 2014.]
  2. [Deleted by 2013 amendment, effective July 1, 2014.]
  3. [Deleted by 2013 amendment, effective July 1, 2014.]
      1. For injuries occurring on or after July 1, 2004, but before July 1, 2014, in cases in which an injured employee is eligible to receive any permanent partial disability benefits either for body as a whole or for schedule member injuries, except schedule member injuries specified in § 50-6-207(3)(A)(ii)(a)-(l), (n), (q), and (r), and the pre-injury employer returns the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability benefits that the employee may receive is one and one half (1 ½) times the medical impairment rating determined pursuant to § 50-6-204(d)(3). In making the determinations, the court shall consider all pertinent factors, including lay and expert testimony, the employee's age, education, skills and training, local job opportunities and capacity to work at types of employment available in claimant's disabled condition.
        1. If an injured employee receives benefits for body as a whole injuries pursuant to subdivision (d)(1)(A) and the employee is subsequently no longer employed by the pre-injury employer at the wage specified in subdivision (d)(1)(A) within four hundred (400) weeks of the day the employee returned to work for the pre-injury employer, the employee may seek reconsideration of the permanent partial disability benefits. Employees who continue in their employment after a reduction in pay or a reduction in hours due to economic conditions shall not be entitled to reconsideration of their claims under this section if the reduction in pay or reduction in hours affected at least fifty percent (50%) of all hourly employees operating at or out of the same location. This provision does not apply to or include employees involved in layoffs, closures or a termination of business operations.
        2. If an injured employee receives benefits for schedule member injuries pursuant to subdivision (d)(1)(A), and the employee is subsequently no longer employed by the pre-injury employer at the wage specified in subdivision (d)(1)(A), the employee may seek reconsideration of the permanent partial disability benefits. The right to seek the reconsideration shall extend for the number of weeks for which the employee was eligible to receive benefits under § 50-6-207, beginning with the day the employee returned to work for the pre-injury employer. Employees who continue in their employment after a reduction in pay or a reduction in hours due to economic conditions shall not be entitled to reconsideration of their claims under this section if the reduction in pay or reduction in hours affected at least fifty percent (50%) of all hourly employees operating at or out of the same location. This provision does not apply to or include employees involved in layoffs, closures or a termination of business operations.
        3. Notwithstanding this subdivision (d)(1)(B), under no circumstances shall an employee be entitled to reconsideration when the loss of employment is due to either:
          1. The employee's voluntary resignation or retirement; provided, however, that the resignation or retirement does not result from the work-related disability that is the subject of such reconsideration; or
          2. The employee's misconduct connected with the employee's employment.
        4. To seek reconsideration pursuant to subdivision (d)(B)(i) or (d)(B)(ii), the employee shall first request a benefit review conference within one (1) year of the date on which the employee ceased to be employed by the pre-injury employer. If the parties are not able to reach an agreement regarding additional permanent partial disability benefits at the benefit review conference, the employee shall be entitled to file a complaint seeking reconsideration in a court of competent jurisdiction within ninety (90) days of the date of the benefit review conference. Any settlement or award of additional permanent partial disability benefits pursuant to reconsideration shall give the employer credit for prior permanent partial disability benefits paid to the employee. Any new settlement or award regarding additional permanent partial disability benefits remains subject to the maximum established in subdivision (a)(2) and shall be based on the medical impairment rating that was the basis of the previous settlement or award.
        5. Notwithstanding any other provision of law to the contrary, an employee shall not be permitted to waive or forfeit, and the parties shall not be permitted to compromise and settle, the employee's rights to reconsideration pursuant to this section.
        1. Notwithstanding any other law to the contrary, for injuries occurring on or after July 1, 2009, but before July 1, 2014, if an injured employee receives permanent partial disability benefits for body as a whole injuries or if the injured employee receives permanent partial disability benefits for schedule member injuries pursuant to subdivision (d)(1)(A) and the pre-injury employer is sold or acquired subsequent to the receipt of the permanent partial disability benefits, then the injured employee shall not be entitled to seek reconsideration:
          1. Provided, that the injured employee continues to be employed by the successor employer at the same or higher pay; or
          2. If the employee declines an offer of employment with the successor employer at the same or higher pay.
        2. Notwithstanding subdivision (d)(1)(C)(i), an injured employee shall be entitled to seek reconsideration:
          1. From the successor employer within four hundred (400) weeks of the day the employee returned to work for the pre-injury employer, if the injured employee received permanent partial disability benefits for body as a whole injuries from the pre-injury employer pursuant to subdivision (d)(1)(A) and the injured employee is no longer employed by the successor employer at the same or higher pay; or
          2. From the successor employer within the number of weeks for which the employee was eligible to receive benefits from the pre-injury employer under § 50-6-207, to be calculated from the day the employee returned to work for the pre-injury employer, if the injured employee received permanent partial disability benefits for schedule member injuries from the pre-injury employer pursuant to subdivision (d)(1)(A) and the injured employee is no longer employed by the successor employer at the same or higher pay.
        3. Any additional permanent partial disability benefits to which the injured employee is entitled pursuant to subdivision (d)(1)(C)(ii) shall be paid by the successor employer or the insurance carrier for the successor employer.
        4. If an injured employee is entitled to seek reconsideration pursuant to this subdivision (d)(1)(C), then the employee shall first request a benefit review conference within one (1) year of the date on which the employee ceased to be employed by the successor employer. If the parties are not able to reach an agreement regarding additional permanent partial disability benefits at the benefit review conference, then the employee shall be entitled to file a complaint against the successor employer seeking reconsideration in a court of competent jurisdiction within ninety (90) days of the date of the benefit review conference. Any settlement or award of additional permanent partial disability benefits pursuant to reconsideration shall give the successor employer credit for the prior permanent partial disability benefits paid by the pre-injury employer to the employee. Any new settlement or award regarding additional permanent partial disability benefits shall be subject to the maximum established in subdivision (d)(2).
      1. For injuries arising on or after July 1, 2004, but before July 1, 2014, in cases in which the pre-injury employer did not return the injured employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability benefits that the employee may receive for body as a whole and schedule member injuries may not exceed six (6) times the medical impairment rating determined pursuant to § 50-6-204(d)(3). The maximum permanent partial disability benefits to which the employee is entitled shall be computed utilizing the appropriate maximum number of weeks as set forth in § 50-6-207 for the type of injury sustained by the employee. In making such determinations, the court shall consider all pertinent factors, including lay and expert testimony, the employee's age, education, skills and training, local job opportunities, and capacity to work at the types of employment available in claimant's disabled condition.
      2. If the court awards a permanent partial disability percentage that equals or exceeds five (5) times the medical impairment rating, the court shall include specific findings of fact in the order that detail the reasons for awarding the maximum permanent partial disability.
    1. It is the intent of the general assembly to adopt as public policy for this state specific provisions related to workers' compensation to preserve the tradition of legal immigration while seeking to close the door to illegal workers in this state and to encourage the employers of this state to comply with federal immigration laws in the hiring or continued employment of individuals who are not eligible or authorized to work in the United States.
    2. The general assembly takes notice that federal law prohibits a pre-injury employer from permitting an employee to return to work following the work-related injury when the employee is not eligible or authorized to work in the United States pursuant to federal immigration laws; and, therefore, the general assembly adopts the following as the compensation to which such an employee is entitled for permanent partial disability benefits:
      1. For injuries occurring on or after July 1, 2009, but before July 1, 2014, in cases in which an injured employee is eligible to receive any permanent partial disability benefits either for body as whole or schedule member injuries, the maximum permanent partial disability benefits that the employee may receive is up to one and one half (1 ½) times the medical impairment rating determined pursuant to § 50-6-204(d)(3); provided, that the employer did not knowingly hire the employee at a time when the employee was not eligible or authorized to work in the United States under federal immigration laws. It shall be presumed the employer did not knowingly hire the employee at a time when the employee was not eligible or authorized to work in the United States under federal immigration laws if the employer can show, by a preponderance of the evidence, that the employer in good faith complied with the employment eligibility and identity verification requirements of federal law when the employee was hired:
        1. By ensuring the employee completed Section 1 of Form I-9 at the time the employee started to work;
        2. By reviewing the documents provided by the employee to establish the employee's identity and eligibility to work;
        3. By making a good faith determination that the documents presented by the employee for employment and identity authorization appeared to relate to the employee, appeared to be genuine and that the documents provided were in the list of acceptable documents on Form I-9; and
        4. By reverifying the employment eligibility of the employee upon the expiration of the employee's work authorization and by completing Section 3 of Form I-9, if applicable;
      2. The presumption established in subdivision (e)(2)(A) may be rebutted if the employee can show, by a preponderance of the evidence, that the employer had actual knowledge of the ineligible or unauthorized status of the employee at the time of hire or at the time of the injury, or both. If the presumption is rebutted, a sum of up to five (5) times the medical impairment rating determined by the authorized treating physician pursuant to § 50-6-204(d)(3) shall be paid in the following manner:
        1. A sum up to one and one half (1 ½) times the medical impairment rating shall be paid in a lump sum to the employee, the sum to be paid by the employer's insurer; and
        2. An additional sum up to three and one half (3 ½) times the medical impairment rating shall be paid by the employer, in a lump sum into, and shall become a part of, the uninsured employers fund created by § 50-6-801; provided, that the sum shall not be paid by the employer's insurer.

Acts 1992, ch. 900, § 16; 2004, ch. 962, §§ 9, 10, 11; 2009, ch. 364, § 1; 2009, ch. 526, § 1; 2010, ch. 1034, §§ 1, 2; 2013, ch. 289, §§ 85-89.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2010, ch. 1034, § 3 provided that the act, which amended subdivisions (d)(1)(B)(i) and (ii), shall apply to reconsideration of claims approved or adjudicated on or after July 1, 2010.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, deleted (a), (b) and (c) which read: “(a)(1) For injuries arising on or after August 1, 1992, and prior to July 1, 2004, in cases where an injured employee is eligible to receive any permanent partial disability benefits, pursuant to § 50-6-207(3)(A)(i) and (F), and the pre-injury employer returns the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of injury, the maximum permanent partial disability award that the employee may receive is two and one-half (2½) times the medical impairment rating determined pursuant to the provisions of the American Medical Association Guides to the Evaluation of Permanent Impairment (American Medical Association), the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment (American Academy of Orthopedic Surgeons), or in cases not covered by either of these, an impairment rating by any appropriate method used and accepted by the medical community. In making determinations, the court shall consider all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition.“(2) In accordance with this section, the courts may reconsider, upon the filing of a new cause of action, the issue of industrial disability. Such reconsideration shall examine all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition. The reconsideration may be made in appropriate cases where the employee is no longer employed by the pre-injury employer and makes application to the appropriate court within one (1) year of the employee's loss of employment, if the loss of employment is within four hundred (400) weeks of the day the employee returned to work. In enlarging a previous award, the court must give the employer credit for prior benefits paid to the employee in permanent partial disability benefits, and any new award remains subject to the maximum established in subsection (b).“(b) Subject to the factors provided in subsection (a), in cases for injuries on or after August 1, 1992, and prior to July 1, 2004, where an injured employee is eligible to receive permanent partial disability benefits, pursuant to § 50-6-207(3)(A)(i) and (F), and the pre-injury employer does not return the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of injury, the maximum permanent partial disability award that the employee may receive is six (6) times the medical impairment rating determined pursuant to the provisions of the American Medical Association Guides to the Evaluation of Permanent Impairment (American Medical Association), the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment (American Academy of Orthopedic Surgeons), or in cases not covered by either of these, an impairment rating by any appropriate method used and accepted by the medical community. In making such determinations, the court shall consider all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition.“(c) The multipliers established by subsections (a) and (b) are intended to be maximum limits. If the court awards a multiplier of five (5) or greater, then the court shall make specific findings of fact detailing the reasons for awarding the maximum impairment. In making the determinations, the court shall consider all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition.”; inserted “but before July 1, 2014” in the first sentence of (d)(1)(A), (d)(1)(C)(i), (d)(2)(A), and (e)(2)(A); deleted “subject to subdivision (d)(1)(A)” preceding “may not exceed” in the first sentence of (d)(2)(A) and inserted “the” preceding “types of employment” in the last sentence of (d)(2)(A).

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

NOTES TO DECISIONS

1. Return to Employment.

Prior to his injuries, an employee who worked as a crew chief on a salvage crew could anticipate earning a minimum of $560.00 in a 40 hour week without regard to overtime, while after his placement in the sales department, the employee could anticipate earning the lesser amount of $500.00 per week without regard to commissions. Accordingly, the trial court correctly found that the employee did not have a meaningful return to work and that his award of disability benefits was not limited to one and one-half times his medical impairment. Corso v. Accident Fund Ins. Co., — S.W.3d —, 2016 Tenn. LEXIS 630 (Tenn. Sept. 2, 2016), aff'd, Corso v. Accident Fund Ins. Co., — S.W.3d —, 2016 Tenn. LEXIS 631 (Tenn. Sept. 2, 2016).

2. Findings.

Trial court's recitation of the generic factors in the statute did not amount to specific findings as to any of those factors; however, the trial court also gave additional, specific findings to support its decision, including the employee's ongoing medical treatment and the significant medical restrictions imposed due to her injury, and these findings sufficiently support the trial court's decision to satisfy the requirements of the statute. Marshall v. Pinnacle Food Grp., — S.W.3d —, 2016 Tenn. LEXIS 751 (Tenn. Oct. 27, 2016), aff'd, Marshall v. Pinnacle Food Group, — S.W.3d —, 2016 Tenn. LEXIS 750 (Tenn. Oct. 27, 2016).

3. Particular Cases.

Evidence preponderated against the trial court's finding that only 35 percent of the employee's permanent and total disability was attributable to the subject injury and should have allocated 100 percent of his disability to the employer, because the employee was performing his job with no limitations prior to the injury, the injury required him to have a total left shoulder replacement, the employee was released with significant permanent restrictions and was unable to work or do household chores he had previously done. UPS v. Wyrick, — S.W.3d —, 2016 Tenn. LEXIS 854 (Tenn. Nov. 30, 2016), aff'd, — S.W.3d —, 2016 Tenn. LEXIS 885 (Tenn. Nov. 30, 2016).

Trial court erred in concluding an employee's permanent partial disability benefits award was subject to the lower cap because the evidence preponderated against its finding the employer acted reasonably in terminating the employee for misconduct; because the misconduct exception did not apply, and the employee failed to make a meaningful return to work for purposes of applying the statutory caps to her award, she was entitled to an award up to six times the assigned medical impairment rating. Gandee v. Zurich N. Am. Ins. Co., — S.W.3d —, 2018 Tenn. LEXIS 524 (Tenn. Sept. 19, 2018).

Court examined the elements of the misconduct exception in light of the proof presented at trial because the employer raised the misconduct exception supported by the testimony of the employer's administrator; at the conclusion of the proof, the trial court agreed the employee was terminated for misconduct and limited the employee's recovery by applying the lower cap. Gandee v. Zurich N. Am. Ins. Co., — S.W.3d —, 2018 Tenn. LEXIS 524 (Tenn. Sept. 19, 2018).

4. No Cap on Award.

Trial court properly found that an employee was entitled to both permanent partial and temporary total disability benefits and did not err in declining to cap the employee's award because the employer pressured the employee to resign after she injured her knee at work and she did not have a meaningful return to work she was 63 years old, almost all her job experience required activities that were severely limited by the permanent restrictions her doctor imposed, none of the employers where she had applied for jobs offered her a job because of her permanent restrictions, and there was no evidence to indicate the employer would have been any more accommodating to her after her knee surgery than it was before it pressured her to resign. Hunt v. Dillard's Inc., — S.W.3d —, 2017 Tenn. LEXIS 753 (Tenn. Dec. 13, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 752 (Tenn. Dec. 13, 2017).

5. Disability Assessment.

Award of permanent partial disability benefits for the employee's shoulder injury and a 30% vocational disability was supported by expert testimony that there was such an injury, with only a 1% difference in the impairment determinations by the two experts, and evidence that the employee was 60 years old, had a tenth grade education, and had health issues that made manual labor difficult. Raymer v. Maint. Insights, LLC, — S.W.3d —, 2018 Tenn. LEXIS 377 (Tenn. June 14, 2018).

Trial court did not err in adopting the five percent impairment rating assigned by an expert because the expert accounted for the employee's sensory deficits. Gandee v. Zurich N. Am. Ins. Co., — S.W.3d —, 2018 Tenn. LEXIS 524 (Tenn. Sept. 19, 2018).

50-6-241. Maximum permanent partial disability award for causes arising on or after August 1, 1992 — Reconsideration of industrial disability issue — Awards for claims arising after July 1, 2004 — Public policy regarding legal immigration. [Applicable to injuries occurring prior to July 1, 2014.]

    1. For injuries arising on or after August 1, 1992, and prior to July 1, 2004, in cases where an injured employee is eligible to receive any permanent partial disability benefits, pursuant to § 50-6-207(3)(A)(i) and (F), and the pre-injury employer returns the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of injury, the maximum permanent partial disability award that the employee may receive is two and one-half (2½) times the medical impairment rating determined pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment (American Medical Association), the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment (American Academy of Orthopedic Surgeons), or in cases not covered by either of these, an impairment rating by any appropriate method used and accepted by the medical community. In making determinations, the court shall consider all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition.
    2. In accordance with this section, the courts may reconsider, upon the filing of a new cause of action, the issue of industrial disability. Such reconsideration shall examine all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition. The reconsideration may be made in appropriate cases where the employee is no longer employed by the pre-injury employer and makes application to the appropriate court within one (1) year of the employee's loss of employment, if the loss of employment is within four hundred (400) weeks of the day the employee returned to work. In enlarging a previous award, the court must give the employer credit for prior benefits paid to the employee in permanent partial disability benefits, and any new award remains subject to the maximum established in subsection (b).
  1. Subject to the factors provided in subsection (a), in cases for injuries on or after August 1, 1992, and prior to July 1, 2004, where an injured employee is eligible to receive permanent partial disability benefits, pursuant to § 50-6-207(3)(A)(i) and (F), and the pre-injury employer does not return the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of injury, the maximum permanent partial disability award that the employee may receive is six (6) times the medical impairment rating determined pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment (American Medical Association), the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment (American Academy of Orthopedic Surgeons), or in cases not covered by either of these, an impairment rating by any appropriate method used and accepted by the medical community. In making such determinations, the court shall consider all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition.
  2. The multipliers established by subsections (a) and (b) are intended to be maximum limits. If the court awards a multiplier of five (5) or greater, then the court shall make specific findings of fact detailing the reasons for awarding the maximum impairment. In making the determinations, the court shall consider all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition.
      1. For injuries occurring on or after July 1, 2004, in cases in which an injured employee is eligible to receive any permanent partial disability benefits either for body as a whole or for schedule member injuries, except schedule member injuries specified in § 50-6-207(3)(A)(ii)(a )-(l ), (n ), (q ), and (r ), and the pre-injury employer returns the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability benefits that the employee may receive is one and one half (1½) times the medical impairment rating determined pursuant to § 50-6-204(d)(3). In making the determinations, the court shall consider all pertinent factors, including lay and expert testimony, the employee's age, education, skills and training, local job opportunities and capacity to work at types of employment available in claimant's disabled condition.
        1. If an injured employee receives benefits for body as a whole injuries pursuant to subdivision (d)(1)(A) and the employee is subsequently no longer employed by the pre-injury employer at the wage specified in subdivision (d)(1)(A) within four hundred (400) weeks of the day the employee returned to work for the pre-injury employer, the employee may seek reconsideration of the permanent partial disability benefits. Employees who continue in their employment after a reduction in pay or a reduction in hours due to economic conditions shall not be entitled to reconsideration of their claims under this section if the reduction in pay or reduction in hours affected at least fifty percent (50%) of all hourly employees operating at or out of the same location. This provision does not apply to or include employees involved in layoffs, closures or a termination of business operations.
        2. If an injured employee receives benefits for schedule member injuries pursuant to subdivision (d)(1)(A), and the employee is subsequently no longer employed by the pre-injury employer at the wage specified in subdivision (d)(1)(A), the employee may seek reconsideration of the permanent partial disability benefits. The right to seek the reconsideration shall extend for the number of weeks for which the employee was eligible to receive benefits under § 50-6-207, beginning with the day the employee returned to work for the pre-injury employer. Employees who continue in their employment after a reduction in pay or a reduction in hours due to economic conditions shall not be entitled to reconsideration of their claims under this section if the reduction in pay or reduction in hours affected at least fifty percent (50%) of all hourly employees operating at or out of the same location. This provision does not apply to or include employees involved in layoffs, closures or a termination of business operations.
        3. Notwithstanding this subdivision (d)(1)(B), under no circumstances shall an employee be entitled to reconsideration when the loss of employment is due to either:
          1. The employee's voluntary resignation or retirement; provided, however, that the resignation or retirement does not result from the work-related disability that is the subject of such reconsideration; or
          2. The employee's misconduct connected with the employee's employment.
        4. To seek reconsideration pursuant to subdivision (d)(B)(i) or (d)(B)(ii), the employee shall first request a benefit review conference within one (1) year of the date on which the employee ceased to be employed by the pre-injury employer. If the parties are not able to reach an agreement regarding additional permanent partial disability benefits at the benefit review conference, the employee shall be entitled to file a complaint seeking reconsideration in a court of competent jurisdiction within ninety (90) days of the date of the benefit review conference. Any settlement or award of additional permanent partial disability benefits pursuant to reconsideration shall give the employer credit for prior permanent partial disability benefits paid to the employee. Any new settlement or award regarding additional permanent partial disability benefits remains subject to the maximum established in subdivision (d)(2) and shall be based on the medical impairment rating that was the basis of the previous settlement or award.
        5. Notwithstanding any other law to the contrary, an employee shall not be permitted to waive or forfeit, and the parties shall not be permitted to compromise and settle, the employee's rights to reconsideration pursuant to this section.
        1. Notwithstanding any other law to the contrary, for injuries occurring on or after July 1, 2009, if an injured employee receives permanent partial disability benefits for body as a whole injuries or if the injured employee receives permanent partial disability benefits for schedule member injuries pursuant to subdivision (d)(1)(A) and the pre-injury employer is sold or acquired subsequent to the receipt of the permanent partial disability benefits, then the injured employee shall not be entitled to seek reconsideration:
          1. Provided, that the injured employee continues to be employed by the successor employer at the same or higher pay; or
          2. If the employee declines an offer of employment with the successor employer at the same or higher pay.
        2. Notwithstanding subdivision (d)(1)(C)(i), an injured employee shall be entitled to seek reconsideration:
          1. From the successor employer within four hundred (400) weeks of the day the employee returned to work for the pre-injury employer, if the injured employee received permanent partial disability benefits for body as a whole injuries from the pre-injury employer pursuant to subdivision (d)(1)(A) and the injured employee is no longer employed by the successor employer at the same or higher pay; or
          2. From the successor employer within the number of weeks for which the employee was eligible to receive benefits from the pre-injury employer under § 50-6-207, to be calculated from the day the employee returned to work for the pre-injury employer, if the injured employee received permanent partial disability benefits for schedule member injuries from the pre-injury employer pursuant to subdivision (d)(1)(A) and the injured employee is no longer employed by the successor employer at the same or higher pay.
        3. Any additional permanent partial disability benefits to which the injured employee is entitled pursuant to subdivision (d)(1)(C)(ii) shall be paid by the successor employer or the insurance carrier for the successor employer.
        4. If an injured employee is entitled to seek reconsideration pursuant to this subdivision (d)(1)(C), then the employee shall first request a benefit review conference within one (1) year of the date on which the employee ceased to be employed by the successor employer. If the parties are not able to reach an agreement regarding additional permanent partial disability benefits at the benefit review conference, then the employee shall be entitled to file a complaint against the successor employer seeking reconsideration in a court of competent jurisdiction within ninety (90) days of the date of the benefit review conference. Any settlement or award of additional permanent partial disability benefits pursuant to reconsideration shall give the successor employer credit for the prior permanent partial disability benefits paid by the pre-injury employer to the employee. Any new settlement or award regarding additional permanent partial disability benefits shall be subject to the maximum established in subdivision (d)(2).
      1. For injuries arising on or after July 1, 2004, in cases in which the pre-injury employer did not return the injured employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability benefits that the employee may receive for body as a whole and schedule member injuries subject to subdivision (d)(1)(A) may not exceed six (6) times the medical impairment rating determined pursuant to the provisions of § 50-6-204(d)(3). The maximum permanent partial disability benefits to which the employee is entitled shall be computed utilizing the appropriate maximum number of weeks as set forth in § 50-6-207 for the type of injury sustained by the employee. In making such determinations, the court shall consider all pertinent factors, including lay and expert testimony, the employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition.
      2. If the court awards a permanent partial disability percentage that equals or exceeds five (5) times the medical impairment rating, the court shall include specific findings of fact in the order that detail the reasons for awarding the maximum permanent partial disability.
    1. It is the intent of the general assembly to adopt as public policy for this state specific provisions related to workers' compensation to preserve the tradition of legal immigration while seeking to close the door to illegal workers in this state and to encourage the employers of this state to comply with federal immigration laws in the hiring or continued employment of individuals who are not eligible or authorized to work in the United States.
    2. The general assembly takes notice that federal law prohibits a pre-injury employer from permitting an employee to return to work following the work-related injury when the employee is not eligible or authorized to work in the United States pursuant to federal immigration laws; and, therefore, the general assembly adopts the following as the compensation to which such an employee is entitled for permanent partial disability benefits:
      1. For injuries occurring on or after July 1, 2009, in cases in which an injured employee is eligible to receive any permanent partial disability benefits either for body as whole or schedule member injuries, the maximum permanent partial disability benefits that the employee may receive is up to one and one half (1 ½) times the medical impairment rating determined pursuant to § 50-6-204(d)(3); provided, that the employer did not knowingly hire the employee at a time when the employee was not eligible or authorized to work in the United States under federal immigration laws. It shall be presumed the employer did not knowingly hire the employee at a time when the employee was not eligible or authorized to work in the United States under federal immigration laws if the employer can show, by a preponderance of the evidence, that the employer in good faith complied with the employment eligibility and identity verification requirements of federal law when the employee was hired:
        1. By ensuring the employee completed Section 1 of Form I-9 at the time the employee started to work;
        2. By reviewing the documents provided by the employee to establish the employee's identity and eligibility to work;
        3. By making a good faith determination that the documents presented by the employee for employment and identity authorization appeared to relate to the employee, appeared to be genuine and that the documents provided were in the list of acceptable documents on Form I-9; and
        4. By reverifying the employment eligibility of the employee upon the expiration of the employee's work authorization and by completing Section 3 of Form I-9, if applicable;
      2. The presumption established in subdivision (e)(2)(A) may be rebutted if the employee can show, by a preponderance of the evidence, that the employer had actual knowledge of the ineligible or unauthorized status of the employee at the time of hire or at the time of the injury, or both. If the presumption is rebutted, a sum of up to five (5) times the medical impairment rating determined by the authorized treating physician pursuant to § 50-6-204(d)(3) shall be paid in the following manner:
        1. A sum up to one and one half (1 ½) times the medical impairment rating shall be paid in a lump sum to the employee, the sum to be paid by the employer's insurer; and
        2. An additional sum up to three and one half (3 ½) times the medical impairment rating shall be paid by the employer, in a lump sum into, and shall become a part of, the uninsured employers fund created by § 50-6-801; provided, that the sum shall not be paid by the employer's insurer.

Acts 1992, ch. 900, § 16; 2004, ch. 962, §§ 9, 10, 11; 2009, ch. 364, § 1; 2009, ch. 526, § 1; 2010, ch. 1034, §§ 1, 2.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2010, ch. 1034, § 3 provided that the act, which amended subdivisions (d)(1)(B)(i) and (ii), shall apply to reconsideration of claims approved or adjudicated on or after July 1, 2010.

NOTES TO DECISIONS

1. Constitutionality.

The impairment rating model of T.C.A. §§ 50-6-241 and 50-6-242, including the multipliers and use of the AMA Guides and other factors, and the escape provisions in § 50-6-242 do not violate equal protection. Brown v. Campbell County Bd. of Educ., 915 S.W.2d 407, 1995 Tenn. LEXIS 781 (Tenn. 1995), cert. denied, 517 U.S. 1222, 116 S. Ct. 1852, 134 L. Ed. 2d 952, 1996 U.S. LEXIS 3465 (1996).

2. Construction.

T.C.A. § 50-6-242 reflects clear legislative intent to restrict disability awards as indicated in T.C.A. § 50-6-241; the delineated limits should be exceeded only when there is a showing by clear and convincing evidence that they should be exceeded. Middleton v. Allegheny Elec. Co., 897 S.W.2d 695, 1995 Tenn. LEXIS 243 (Tenn. Special Workers' Comp. App. Panel 1995).

T.C.A. § 50-6-241 does not conflict with the Americans with Disabilities Act of 1990 or Section 794 of the Rehabilitation Act of 1973. Brown v. Campbell County Bd. of Educ., 915 S.W.2d 407, 1995 Tenn. LEXIS 781 (Tenn. 1995), cert. denied, 517 U.S. 1222, 116 S. Ct. 1852, 134 L. Ed. 2d 952, 1996 U.S. LEXIS 3465 (1996).

T.C.A. § 50-6-241(a)(2) controls over the provisions of T.C.A. § 50-6-231 to the extent that the two statutes conflict; a petition under subsection (a)(2) to enlarge a previous award of compensation is not prohibited in a case where the original workers' compensation award sought to be enlarged was paid in lump sum. Brewer v. Lincoln Brass Works, Inc., 991 S.W.2d 226, 1999 Tenn. LEXIS 224 (Tenn. 1999), rehearing denied, Brewer v. Lincoln Brass Works, — S.W.3d —, 1999 Tenn. LEXIS 299 (Tenn. June 14, 1999).

A petition to enlarge a previous award under T.C.A. § 50-6-241(a)(2) is not the appropriate vehicle to use when a worker sustains additional injuries or additional anatomical impairment; if the worker sustains additional impairment, whether caused by a subsequent work-related injury or aggravation of the original injury, the worker must file a new claim for workers' compensation rather than attempt to enlarge a previous award. Brewer v. Lincoln Brass Works, Inc., 991 S.W.2d 226, 1999 Tenn. LEXIS 224 (Tenn. 1999), rehearing denied, Brewer v. Lincoln Brass Works, — S.W.3d —, 1999 Tenn. LEXIS 299 (Tenn. June 14, 1999).

Subdivision (a)(2) of T.C.A. § 50-6-241 permits reconsideration of awards controlled by the multipliers in subdivision (a)(1) of T.C.A. § 50-6-241, but these provisions apply only to injuries to the body as a whole. Black v. Liberty Mut. Ins. Co., 4 S.W.3d 182, 1999 Tenn. LEXIS 436 (Tenn. Special Workers' Comp. App. Panel 1999), aff'd, Black v. Liberty Mut. Ins. Co., 1999 Tenn. LEXIS 438 (Tenn. Sept. 24, 1999).

Pursuant to subdivision (a)(2) of T.C.A. § 50-6-241, a trial court may reconsider and enlarge a lump sum award paid pursuant to T.C.A. § 50-6-231. Niziol v. Lockheed Martin Energy Sys., Inc., 8 S.W.3d 622, 1999 Tenn. LEXIS 599 (Tenn. 1999).

T.C.A. § 50-6-241(a)(2) does not require the employee to prove that the initial work-related injury caused the loss of employment as a precondition to obtaining reconsideration. Young v. Caradon Better-Bilt, Inc., 30 S.W.3d 285, 2000 Tenn. LEXIS 456 (Tenn. 2000).

A trial court can reconsider a previous workers' compensation award when an employee resigns, but the trial court may only increase the award if the resignation is reasonably related to the employee's injury; where the employee's resignation was not reasonably related to his injury, the trial court erred by increasing the employee's award. Hardin v. Royal & Sunalliance Ins., 104 S.W.3d 501, 2003 Tenn. LEXIS 339 (Tenn. 2003).

3. Applicability of Multipliers.

The two and one-half multiplier contained in subdivision (a)(1) of T.C.A. § 50-6-241 explicitly applies to injuries to the body as a whole and does not apply in cases involving injuries to scheduled members. Atchley v. Life Care Ctr., 906 S.W.2d 428, 1995 Tenn. LEXIS 500 (Tenn. 1995).

In cases where an employee has a greater vocational disability than allowed by the multipliers in T.C.A. § 50-6-241, on account of age, lack of education or lack of employment opportunities, the employee may be awarded up to 400 weeks of benefits under T.C.A. § 50-6-242, but such employee does not qualify for lifetime benefits and is limited to the maximum award of 400 weeks. Seiber v. Greenbrier Indus., 906 S.W.2d 444, 1995 Tenn. LEXIS 549 (Tenn. Special Workers' Comp. App. Panel 1995).

Where an employee was not able to return to work on account of physical and emotional injuries, her refusal to return was not unreasonable and the trial court did not err in applying a multiplier of four to her anatomical impairment rating. Brown v. Campbell County Bd. of Educ., 915 S.W.2d 407, 1995 Tenn. LEXIS 781 (Tenn. 1995), cert. denied, 517 U.S. 1222, 116 S. Ct. 1852, 134 L. Ed. 2d 952, 1996 U.S. LEXIS 3465 (1996).

T.C.A. § 50-6-241 is inapplicable to permanent total disability and does not preclude a trial judge from awarding permanent total disability merely because an anatomical impairment rating is less than 16.7 percent Seiber v. Greenbrier Indus., 906 S.W.2d 444, 1995 Tenn. LEXIS 549 (Tenn. Special Workers' Comp. App. Panel 1995).

Special workers' compensation appeals panel erred in applying the statutory multiplier to the employee's medical impairment rating for all of his work injuries, rather than just his medical impairment rating for his most recent work injury. Parks v. Tennessee Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 1998 Tenn. LEXIS 355 (Tenn. 1998).

The 2.5 times multiplier contained in T.C.A. § 50-6-241 applies to rotator cuff injuries. Advo, Inc. v. Phillips, 989 S.W.2d 693, 1998 Tenn. LEXIS 630 (Tenn. Special Workers' Comp. App. Panel 1998).

In order to award support in excess of the “multiplier” provisions contained in T.C.A. § 50-6-241, the trial court must document clear and convincing evidence to support its decision pursuant to T.C.A. § 50-6-242. Peace v. Easy Trucking Co., 38 S.W.3d 526, 2001 Tenn. LEXIS 85 (Tenn. 2001).

Multiplier limitation did not apply where exception of T.C.A. § 50-6-242(1) applied, as employee did not have a high school or equivalency diploma. Leab v. S & H Mining Co., 76 S.W.3d 344, 2002 Tenn. LEXIS 267 (Tenn. 2002).

Trial court erred by finding that the two and one-half times cap on the employee's permanent partial disability award set forth in T.C.A. § 50-6-241(a)(1) did not apply where the employee was fired for gross misconduct prior to being treated for a work-related injury, as an employer is permitted to enforce workplace rules without being penalized in a subsequent workers' compensation case. Carter v. First Source Furniture Group, 92 S.W.3d 367, 2002 Tenn. LEXIS 639 (Tenn. 2002).

Employee had continued to work for the employer after the employee's injury, when the employee voluntarily resigned for a better paying job; the fact that the employee, who later returned to the original employer at lower pay, was no longer working for the employer at the time of attaining maximum medical improvement, was the result of the employee's own unilateral action, and the trial court erred by not applying the two and one-half times cap set forth in T.C.A. § 50-6-241(a)(1). Lay v. Scott County Sheriff's Dep't, 109 S.W.3d 293, 2003 Tenn. LEXIS 568 (Tenn. 2003).

Chancery court's conclusion that an employee was working for her pre-injury employer, notwithstanding the fact that it was purchased several months after the employee filed her second workers'  compensation lawsuit and over eight months prior to the trial, was flatly inconsistent with Perrin v. Gaylord Entm't Co., 120 S.W.3d 823, 2003 Tenn. LEXIS 1174, and therefore the chancery court erred in holding that the employee's recovery for cubital tunnel injury was limited by the 1.5 multiplier in T.C.A. § 50-6-241(d)(1)(A). Barnett v. Milan Seating Sys., 215 S.W.3d 828, 2007 Tenn. LEXIS 38 (Tenn. 2007), superseded by statute as stated in, Meeks v. Hartford Ins. Co., — S.W.3d —, 2010 Tenn. LEXIS 716 (Tenn. Aug. 30, 2010), superseded by statute as stated in, Tomlinson v. Zurich Am. Ins., — S.W.3d —, 2010 Tenn. LEXIS 713 (Tenn. Aug. 30, 2010), superseded by statute as stated in, Jenkins v. Yellow Transp., Inc., — S.W.3d —, 2011 Tenn. LEXIS 344 (Tenn. Apr. 13, 2011), superseded by statute as stated in, House v. YRC, Inc., — S.W.3d —, 2012 Tenn. LEXIS 413 (Tenn. June 22, 2012), superseded by statute as stated in, Raines v. Vought Aircraft Indus., Inc., — S.W.3d —, 2012 Tenn. LEXIS 505 (Tenn. Aug. 17, 2012), superseded by statute as stated in, Freeman v. GM Co., — S.W.3d —, 2012 Tenn. LEXIS 750 (Tenn. Oct. 22, 2012).

T.C.A. § 50-6-241(d)(1)(A) used in conjunction with the AMA Guides does not result in prohibited discrimination under the Tennessee Human Rights Act or the Tennessee Handicap Act, T.C.A. § 8-50-103(a). Lynch v. City of Jellico, 205 S.W.3d 384, 2006 Tenn. LEXIS 759 (Tenn. 2006), cert. denied, 549 U.S. 1280, 127 S. Ct. 1830, 167 L. Ed. 2d 320, 2007 U.S. LEXIS 3049 (2007).

Supreme court of Tennessee holds that for the purposes of vocational impairment, an employee is not working for his or her pre-injury employer when he or she returns to work and the company he or she was working for at the time of the injury then is purchased by a different company, and this is so even if the employee's place of work, job duties, and rate of pay remain unchanged. Barnett v. Milan Seating Sys., 215 S.W.3d 828, 2007 Tenn. LEXIS 38 (Tenn. 2007), superseded by statute as stated in, Meeks v. Hartford Ins. Co., — S.W.3d —, 2010 Tenn. LEXIS 716 (Tenn. Aug. 30, 2010), superseded by statute as stated in, Tomlinson v. Zurich Am. Ins., — S.W.3d —, 2010 Tenn. LEXIS 713 (Tenn. Aug. 30, 2010), superseded by statute as stated in, Jenkins v. Yellow Transp., Inc., — S.W.3d —, 2011 Tenn. LEXIS 344 (Tenn. Apr. 13, 2011), superseded by statute as stated in, House v. YRC, Inc., — S.W.3d —, 2012 Tenn. LEXIS 413 (Tenn. June 22, 2012), superseded by statute as stated in, Raines v. Vought Aircraft Indus., Inc., — S.W.3d —, 2012 Tenn. LEXIS 505 (Tenn. Aug. 17, 2012), superseded by statute as stated in, Freeman v. GM Co., — S.W.3d —, 2012 Tenn. LEXIS 750 (Tenn. Oct. 22, 2012).

Capping a workers'  compensation award of one and one-half times the medical impairment rating pursuant to T.C.A. § 50-6-241(d)(1)(A) was error because the employer neither returned the employee to work after the injury, nor offered him opportunity to return to work, nor ended his employment for misconduct; the inherently temporary nature of the employment was not relevant to the determination of which multiplier applied, because the statutory language neither drew a distinction between permanent and temporary employees nor permitted or required consideration of the employer's business practices. Britt v. Dyer's Empl. Agency, Inc., 396 S.W.3d 519, 2013 Tenn. LEXIS 82 (Tenn. Jan. 22, 2013).

An award to an employee for permanent partial disability was not subject to the one-and-one-half-times cap because the employee, after undergoing separate surgeries on each of the employee's shoulders, acted reasonably by accepting a voluntary buyout for reasons related to the employee's work injuries. Cha Yang v. Nissan N. Am., Inc., 440 S.W.3d 593, 2014 Tenn. LEXIS 607 (Tenn. Aug. 11, 2014).

4. Return to Employment.

Where a claimant refused to return to work because claimant was not given special consideration as to shift hours, such refusal was unreasonable, and disability was limited to two and one-half times the medical impairment rating. Newton v. Scott Health Care Ctr., 914 S.W.2d 884, 1995 Tenn. LEXIS 754 (Tenn. Special Workers' Comp. App. Panel 1995).

To determine whether there has been a meaningful return to work, the court's inquiry must focus on the reasonableness of the employer in attempting to return the employee to work and the reasonableness of the employee in failing to return to work. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 1999 Tenn. LEXIS 603 (Tenn. 1999).

If the offer from the employer is not reasonable in light of the circumstances of the employee's physical ability to perform the offered employment, then the offer of employment is not meaningful; the resolution of what is reasonable must rest upon the facts of each case. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 1999 Tenn. LEXIS 603 (Tenn. 1999).

Employee's decision to work four days a week after a back injury was not an unreasonable refusal to return to work; moreover, the statutory cap under T.C.A. § 50-6-241(a)(1) did not apply unless the employee's return to work was a meaningful return. Powell v. Blalock Plumbing & Elec. & HVAC, 78 S.W.3d 893, 2002 Tenn. LEXIS 327 (Tenn. 2002).

In the context of determining permanent partial disability benefits under T.C.A. § 50-6-241(a)(1) and (b), an employee cannot avoid the statutory caps and thereby augment the employee's award through the employee's unilateral acts when those acts are unrelated to the injury; once the employee severs the employee's relationship with the employer, the purpose of T.C.A. § 50-6-241 is frustrated. Where an employee chooses to sever the employment relationship to accept a better job offer, the employee may not later take advantage of T.C.A. § 50-6-241, and so long as a return to work is offered, an employee who resigns for reasons unrelated to the employee's injury may not escape the statutory caps. Lay v. Scott County Sheriff's Dep't, 109 S.W.3d 293, 2003 Tenn. LEXIS 568 (Tenn. 2003).

Because an employment relationship terminated when the employee was laid off, rather than when he subsequently retired, the employee was not meaningfully returned to work. Therefore, he qualified for reconsideration of his first injury and was not subject to the lower benefits cap on the second under T.C.A. § 50-6-241(d)(1)(A) and (B). Nichols v. Jack Cooper Transp. Co., 318 S.W.3d 354,  2010 Tenn. LEXIS 692 (Tenn. Aug. 27, 2010).

Finding that the employee's workers'  compensation claim was compensable was appropriate pursuant to T.C.A. § 50-6-241(d)(1)(A) because the record confirmed that he acted reasonably in failing to accept the employer's offer of light-duty employment and thus, he did not have a meaningful return to work. Accordingly, the statutory cap of one and one-half times the medical impairment rating did not apply. Dixon v. Travelers Indem. Co., 336 S.W.3d 532, 2011 Tenn. LEXIS 188 (Tenn. Mar. 3, 2011).

Finding in favor of the employee in a workers'  compensation action was appropriate because she did not have a meaningful return to work following her injuries and the evidence did not preponderate against the trial court's award of increased permanent partial disability benefits. Howell v. Nissan N. Am., Inc., 346 S.W.3d 467, 2011 Tenn. LEXIS 747 (Tenn. Aug. 11, 2011).

Employee was not required to make an attempt to return to work when the evidence clearly showed that such an effort would have been futile. Thus, the employee was not subject to the cap set forth in T.C.A. § 50-6-241(d)(1)(A), as alleged by the employer. Mousseau v. Davita, Inc., — S.W.3d —, 2012 Tenn. LEXIS 72 (Tenn. Feb. 21, 2012), review denied, — S.W.3d —, 2012 Tenn. LEXIS 71 (Tenn. Feb. 21, 2012).

In a workers'  compensation case, the employer offered the employee a meaningful return to work under T.C.A. § 50-6-241(a)(1) by offering him a job with pay greater than his previous position and was prepared to accommodate the work restrictions caused by his injury. The employee's resignation based upon unfounded doubts and fears did not qualify as a denial of a meaningful return to work; consequently, the employee was limited to an award of permanent partial disability benefits at one-and-one-half times the medical impairment rating under T.C.A. § 50-6-241(d)(1)(A). Williamson v. Baptist Hosp. of Cocke County, Inc., 361 S.W.3d 483, 2012 Tenn. LEXIS 144 (Tenn. Feb. 28, 2012).

5. Disability Assessment.

In assessing the extent of an employee's vocational disability, the claimant's own assessment of her physical condition and resulting disabilities cannot be disregarded. Walker v. Saturn Corp., 986 S.W.2d 204, 1998 Tenn. LEXIS 745 (Tenn. 1998).

The trial court is not bound to accept physicians' opinions regarding the extent of a plaintiff's disability, but should consider all the evidence, both expert and lay testimony, to decide the extent of an employee's disability. Walker v. Saturn Corp., 986 S.W.2d 204, 1998 Tenn. LEXIS 745 (Tenn. 1998).

Trial court's 20 percent disability award based on a 10 percent medical impairment as a result of a second injury, without regard to the fact that the employee had a prior injury at this same level, was proper and was within the statutory cap found at T.C.A. § 50-6-241(a)(1). Clifton v. Komatsu Am. Mfg. Corp., 38 S.W.3d 550, 2001 Tenn. LEXIS 116 (Tenn. 2001).

Where an employee's medical impairment rating was eight percent based on the fourth edition of the American Medical Association's Permanent Impairment Guidelines, but was 25 percent based on the fifth edition of the guidelines, the trial court erred in calculating the employee's impairment rating under the fifth edition, as the fourth edition was in effect at the time the employee reached maximum medical improvement. Jefferies v. McKee Foods Corp., 145 S.W.3d 551, 2004 Tenn. LEXIS 658 (Tenn. 2004).

Trial court erred in calculating the benefits for a disfiguring scar as an award to the body as whole under T.C.A. § 50-6-207(3)(F); injuries for disfigurement were governed by § 50-6-207(3)(E) and because the award for disfigurement was statutorily enumerated, the claimant's permanent partial disability benefits were not limited by T.C.A. § 50-6-241. Layman v. Vanguard Contrs., 183 S.W.3d 310, 2006 Tenn. LEXIS 5 (Tenn. 2006).

Evidence preponderated against trial court's finding that carpal tunnel syndrome arose out of employee's employment where medical records failed to link employee's carpal tunnel syndrome to any work associated with employer; lay testimony, without support of medical evidence, was insufficient to establish casual relationship between employee's work activities with employer. Crew v. First Source Furniture Group, 259 S.W.3d 656, 2008 Tenn. LEXIS 418 (Tenn. June 24, 2008).

Employee was properly awarded new workers'  compensation benefits for a second spinal injury at an eight percent medical impairment rating because the employee maintained the employee's quality of life at work and home between the original surgery and the second incident, and the trial court could choose which expert to accredit when there was a conflict of opinions. Williams v. CBT Mfg. Co., — S.W.3d —, 2012 Tenn. LEXIS 628 (Tenn. Sept. 4, 2012), aff'd, Williams v. CBT Mfg. Co., — S.W.3d —, 2012 Tenn. LEXIS 629 (Tenn. Sept. 4, 2012).

Employee was totally disabled by his spinal injuries from August 12, 2011 through February 6, 2012, and thus the evidence preponderated in favor of the trial court's determination that the employer was not entitled to the requested credit for the temporary total disability payments made after August 22, 2011. Collier v. McEvoy Funeral Home, Inc., — S.W.3d —, 2014 Tenn. LEXIS 1042 (Tenn. Dec. 29, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 1041 (Tenn. Dec. 29, 2014).

Evidence did not preponderate against the trial court's decision to base the award of permanent disability benefits on a doctor's impairment rating, and thus the award, based on the finding that the claimant suffered a seven percent permanent medical impairment as the result of her work-related injury, was affirmed; the doctor was certified in orthopedics and spoke annually on how to use certain guides in performing medical evaluations, he based his opinion initially on a review of the claimant's records, but altered his opinion after a personal examination of her, and the trial court had the chance to compare the findings of each medical expert. Payne v. UPS, — S.W.3d —, 2014 Tenn. LEXIS 1112 (Tenn. Dec. 30, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 1109 (Tenn. Dec. 30, 2014).

Award of 45 percent permanent partial disability did not preponderate against the evidence where the employee testified that she had continuing pain that interfered with her daily activities, and her testimony was consistent with statements contained in a hip specialist's notes and with an evaluating physician's testimony. Alford v. HCA Health Servs., — S.W.3d —, 2015 Tenn. LEXIS 1057 (Tenn. Dec. 15, 2015).

6. Burden of Proof.

Subdivision (a)(2) of T.C.A. § 50-6-241 does not require a plaintiff to prove that the injury was related to the loss of employment. Niziol v. Lockheed Martin Energy Sys., Inc., 8 S.W.3d 622, 1999 Tenn. LEXIS 599 (Tenn. 1999).

7. Jurisdiction over Motion for Reconsideration.

By employing the term “reconsider,” it is evident that the legislature regarded a request for reconsideration brought pursuant to subdivision (a)(2) of T.C.A. § 50-6-241 as a continuation of the original workers' compensation claim. A motion for a request for reconsideration must be filed in the court that originally exercised jurisdiction over the workers' compensation claim. Freeman v. Marco Transp. Co., 27 S.W.3d 909, 2000 Tenn. LEXIS 520 (Tenn. 2000).

8. “Wage” Defined.

“Wage” as used in T.C.A. § 50-6-241(a)(1) means the hourly rate of pay for an employee who is compensated on an hourly basis. Powell v. Blalock Plumbing & Elec. & HVAC, 78 S.W.3d 893, 2002 Tenn. LEXIS 327 (Tenn. 2002).

9. Employment Resignation.

A trial court may reconsider a workers' compensation award pursuant to T.C.A. § 50-6-241(a)(2) when the employee resigns from employment; the trial court may increase that award only if the resignation is reasonably related to the injury, and the resolution of what is reasonable must rest upon the facts of each case, and be determined thereby. Hardin v. Royal & Sunalliance Ins., 104 S.W.3d 501, 2003 Tenn. LEXIS 339 (Tenn. 2003).

10. Timeliness of Action.

Former employee's pre-injury employer was the former employer and he failed to seek reconsideration of his workers' compensation award within one year of his loss of employment as mandated by T.C.A. § 50-6-241(a)(2); the former employee's employment with the former employer ended when it was purchased by the entity on October 1, 1997, such that his action for reconsideration, filed September 17, 1999 and almost two years after he had lost his employment, was untimely. Perrin v. Gaylord Entm't Co., 120 S.W.3d 823, 2003 Tenn. LEXIS 1174 (Tenn. 2003), superseded by statute as stated in, Meeks v. Hartford Ins. Co., — S.W.3d —, 2010 Tenn. LEXIS 716 (Tenn. Aug. 30, 2010), superseded by statute as stated in, Jenkins v. Yellow Transp., Inc., — S.W.3d —, 2011 Tenn. LEXIS 344 (Tenn. Apr. 13, 2011), superseded by statute as stated in, House v. YRC, Inc., — S.W.3d —, 2012 Tenn. LEXIS 413 (Tenn. June 22, 2012), superseded by statute as stated in, Raines v. Vought Aircraft Indus., Inc., — S.W.3d —, 2012 Tenn. LEXIS 505 (Tenn. Aug. 17, 2012), superseded by statute as stated in, Freeman v. GM Co., — S.W.3d —, 2012 Tenn. LEXIS 750 (Tenn. Oct. 22, 2012).

11. Particular Cases.

Reconsideration of a prior award under T.C.A. § 50-6-241(a)(2) was not precluded by a subsequent work-related injury for which the employee sought compensation; the employee properly filed his claim for reconsideration of the second injury and his claim was not barred. Clark v. Lowe's Home Ctrs., 201 S.W.3d 647, 2006 Tenn. LEXIS 692 (Tenn. Aug. 24, 2006).

Finding that the employee's workers'  compensation claim was compensable was appropriate pursuant to T.C.A. §§ 50-6-102 and 50-6-241(d)(1)(A) in that he was subjected to a higher risk of injury from the tornado because of his employment than the general public would have had. Accordingly, his injury arose out of his employment. Dixon v. Travelers Indem. Co., 336 S.W.3d 532, 2011 Tenn. LEXIS 188 (Tenn. Mar. 3, 2011).

Because an employee's medical impairment rating was properly based on the parties'  settlement's agreement in accordance with T.C.A. § 50-6-241(d)(1)(B)(iv), and because an award of 38% permanent partial disability was not excessive, the employee was entitled to additional permanent partial disability benefits. Lazar v. J.W. Aluminum, 346 S.W.3d 438, 2011 Tenn. LEXIS 741 (Tenn. July 26, 2011).

Permanent partial disability award of 55 percent under T.C.A. § 50-6-241 was proper as: (1) although a workers'  compensation claimant's heat intolerance significantly limited his employment opportunities, both experts testified at trial that there were employment options available to the claimant; (2) the claimant exhibited a lack of effort to find these available jobs; and (3) the award was below one expert's determination of a 92 percent disability, yet above the other expert's determination of a 30 percent disability. John J. Campbell Co. v. Beltran, — S.W.3d —, 2012 Tenn. LEXIS 502 (Tenn. Aug. 17, 2012), review denied, — S.W.3d —, 2012 Tenn. LEXIS 503 (Tenn. Aug. 17, 2012).

Evidence did not preponderate against the trial court's decision to award an employee benefits because the trial court considered the lay and expert testimony, the factors for assessing vocational disability, and reached a result consistent with the proof, and the employee established that his injuries had a rational, causal connection to the work; due to his injuries, the employee was unable to continue working, and a doctor testified that because of the injury, he was almost crippled. Wilcutt v. Cam Elec. Sys., — S.W.3d —, 2014 Tenn. LEXIS 595 (Tenn. July 28, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 594 (Tenn. July 28, 2014).

Trial court did not err in awarding an employee additional permanent partial disability benefits because its findings complied with subsection (d)(2)(B) and provided a sufficient basis for the award; the trial court found that the employee was not terminated for misconduct, he could not perform physical labor, he had limited range of motion and periodic discomfort, since his termination the employee was employed for four months, earning less than half what he was making with the employer. Clay v. AT&T Mobility Servs., LLC, — S.W.3d —, 2014 Tenn. LEXIS 606 (Tenn. Aug. 8, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 605 (Tenn. Aug. 8, 2014).

50-6-242. Additional disability benefits — Award of permanent partial disability benefits for permanent medical impairment in certain cases — Specific documented findings required — Employees not eligible or authorized to work in the United States under federal immigration laws are ineligible.

    1. This subsection (a) shall apply to injuries that occur on or after July 1, 2014.
    2. For injuries that occur during the time period set out in subdivision (a)(1), in extraordinary cases where the employee is eligible for increased benefits under § 50-6-207(3)(B), the employee may receive disability benefits of sixty-six and two-thirds percent (66 2/3%) of the employee's pre-injury average weekly wage or salary for a period not to exceed the two hundred seventy-five (275) weeks inclusive of the benefits provided to the employee under § 50-6-207(3)(A). Benefits may be awarded pursuant to this subsection (a), in lieu of the increased benefits for which the employee is eligible under § 50-6-207(3)(B), if the presiding workers' compensation judge first determines based on clear and convincing evidence that limiting the employee's recovery to the benefits provided by § 50-6-207(3)(B) would be inequitable in light of the totality of the circumstances and the presiding workers' compensation judge makes specific, documented findings that as of the date of the award or settlement the three (3) following facts concerning the employee are true:
      1. The employee has been assigned an impairment rating of at least ten percent (10%) to the body as whole, that has been determined according to the AMA guides as defined by § 50-6-102, by the authorized treating physician;
      2. The authorized treating physician has certified on a form provided by the bureau that due to the permanent restrictions on activity the employee has suffered as a result of the injury the employee no longer has the ability to perform the employee's pre-injury occupation. The authorized treating physician's certification pursuant to this subdivision (a)(2)(B) shall have a presumption of correctness that may be overcome by the presentation of contrary clear and convincing evidence; and
      3. The employee is not earning an average weekly wage or salary that is greater than or equal to seventy percent (70%) of the employee's pre-injury average weekly wage or salary.
  1. For those injuries that occur on or after July 1, 2004 but prior to July 1, 2014, and notwithstanding any provision of this chapter to the contrary and in appropriate cases where the employee is eligible to receive the maximum permanent partial disability award under § 50-6-241(d)(1)(B) or (d)(2), the employee may receive disability benefits not to exceed the appropriate maximum number of weeks as set forth in § 50-6-207 for the type of injury sustained by the employee. In those cases, the court or workers' compensation specialist shall make specific documented findings, supported by clear and convincing evidence, that as of the date of the award or settlement, at least three (3) of the following facts concerning the employee are true:
    1. The employee lacks a high school diploma or general equivalency diploma or the employee cannot read or write on a grade eight (8) level;
    2. The employee is fifty-five (55) years of age or older;
    3. The employee has no reasonably transferable job skills from prior vocational background and training; and
    4. The employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.
  2. Subsections (a) and (b) shall not apply to injuries sustained on or after July 1, 2009, by an employee who is not eligible or authorized to work in the United States under federal immigration laws.

Acts 1992, ch. 900, § 18; 2004, ch. 962, § 12; 2009, ch. 526, § 2; 2013, ch. 282, § 8; 2013, ch. 289, § 90; 2014, ch. 903, §§ 7, 13; 2015, ch. 341, § 15; 2016, ch. 816, § 9.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, in the introductory paragraph of (b), substituted “§ 50-6-207(3)(B)” for “§ 50-6-241(d)(1)(B) or (d)(2)” in the first sentence, and substituted “workers' compensation judge” for “court or workers' compensation specialist” in the second sentence.

The 2013 amendment by ch. 289, effective July 1, 2014, rewrote (a) which read: “For injuries that occur on or after August 1, 1992, and prior to July 1, 2004, notwithstanding any provision of this chapter to the contrary, the trial judge may award employees permanent partial disability benefits, not to exceed four hundred (400) weeks, in appropriate cases where permanent medical impairment is found and the employee is eligible to receive the maximum disability award under § 50-6-241(a)(2) or (b). In those cases the court, on the date of maximum medical improvement, must make a specific documented finding, supported by clear and convincing evidence, of at least three (3) of the following four (4) items:“(1) The employee lacks a high school diploma or general equivalency diploma or the employee cannot read or write on a grade eight (8) level;“(2) The employee is fifty-five (55) years of age or older;“(3) The employee has no reasonably transferable job skills from prior vocational background and training; and“(4) The employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.”

The 2014 amendment rewrote (a), as amended by Acts 2013, ch. 289, which read: “a) For those injuries that occur on or after July 1, 2014, in appropriate cases where the employee has not returned to work and is entitled to additional benefits under § 50-6-207(3)(B), the employee may receive additional disability benefits not to exceed the maximum number of weeks as set forth in § 50-6-207(2)(B). In such cases, the court or the workers' compensation judge shall make specific documented findings, supported by clear and convincing evidence, that as of the date of the award or settlement, at least three (3) of the following facts concerning the employee are true:“(1) The employee lacks a high school diploma or general equivalency diploma, or the employee cannot read or write on a grade eight (8) level;“(2) The employee is fifty-five (55) years of age or older;“(3) The employee has no reasonably transferable job skills from prior vocational background and training; and“(4) The employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.”; and in (b), in the first sentence, as amended by Acts 2013, ch. 289, added “but prior to July 1, 2014”  following “July 1, 2004” and substituted “§ 50-6-241(d)(1)(B) or (d)(2)”  for “§ 50-6-207(3)(B)” and, in the second sentence, substituted “court or workers’ compensation specialist” for “workers’ compensation judge”.

The 2015 amendment substituted “bureau” for “division” in the first sentence in (a)(2)(B).

The 2016 amendment deleted “, but shall not apply to injuries that occur after June 30, 2016” at the end of (a)(1).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2014, ch. 903, § 14. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2016, ch. 816, § 11. April 14, 2016.

NOTES TO DECISIONS

1. Construction.

T.C.A. § 50-6-242(a)(2)(B) requires a physician to certify that the injured employee is incapable of returning to that employee's pre-injury “occupation,” as that term is commonly understood. Batey v. Deliver This, Inc., — S.W.3d —, 2019 Tenn. LEXIS 18 (Tenn. Jan. 29, 2019).

2. Increased Benefits.

Trial court did not err in finding that the employee was eligible for increased benefits, that his case was extraordinary, and that limiting his award would be inequitable; limiting the employee to the benefits provided in T.C.A. § 50-6-207(3)(B) would result in him receiving a permanent partial disability award significantly less than the vocational disability ratings of both testifying vocational experts. Batey v. Deliver This, Inc., — S.W.3d —, 2019 Tenn. LEXIS 18 (Tenn. Jan. 29, 2019).

3. Burden of Proof.

Statute does not require an injured worker to establish the certification of an authorized treating physician factor by clear and convincing evidence, and instead, the statute requires a trial court to find by clear and convincing evidence only that limiting the employee's recovery to the benefits provided would be inequitable; if the trial court makes such a finding, then the three factors in T.C.A. § 50-6-242(a)(2)(A)-(C) need only be established by a preponderance of the evidence. Batey v. Deliver This, Inc., — S.W.3d —, 2019 Tenn. LEXIS 18 (Tenn. Jan. 29, 2019).

Once the physician signed the certification form and it was properly submitted to the court, the employee's burden of establishing the statutory criteria was satisfied and the burden then shifts to the employer to show, by contrary clear and convincing evidence, that the employee was capable of performing his pre-injury occupation; the employer did not meet this burden. Batey v. Deliver This, Inc., — S.W.3d —, 2019 Tenn. LEXIS 18 (Tenn. Jan. 29, 2019).

Required physician certification form was signed and properly admitted into evidence and was entitled to a presumption of correctness and the burden shifted to the employer to show, by contrary clear and convincing evidence, that the employee was capable of returning to his pre-injury occupation; no such evidence was presented, and although the trial court erred in its interpretation of “pre-injury occupation,” the error was harmless. Batey v. Deliver This, Inc., — S.W.3d —, 2019 Tenn. LEXIS 18 (Tenn. Jan. 29, 2019).

50-6-242. Award of permanent partial disability benefits for permanent medical impairment in certain cases — Illegal immigrants ineligible. [Applicable to injuries occurring prior to July 1, 2014.]

  1. For injuries that occur on or after August 1, 1992, and prior to July 1, 2004, notwithstanding any provision of this chapter to the contrary, the trial judge may award employees permanent partial disability benefits, not to exceed four hundred (400) weeks, in appropriate cases where permanent medical impairment is found and the employee is eligible to receive the maximum disability award under § 50-6-241(a)(2) or (b). In those cases the court, on the date of maximum medical improvement, must make a specific documented finding, supported by clear and convincing evidence, of at least three (3) of the following four (4) items:
    1. The employee lacks a high school diploma or general equivalency diploma or the employee cannot read or write on a grade eight (8) level;
    2. The employee is fifty-five (55) years of age or older;
    3. The employee has no reasonably transferable job skills from prior vocational background and training; and
    4. The employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.
  2. For those injuries that occur on or after July 1, 2004, and notwithstanding any provision of this chapter to the contrary and in appropriate cases where the employee is eligible to receive the maximum permanent partial disability award under § 50-6-241(d)(1)(B) or (d)(2), the employee may receive disability benefits not to exceed the appropriate maximum number of weeks as set forth in § 50-6-207 for the type of injury sustained by the employee. In those cases, the court or the workers' compensation specialist shall make specific documented findings, supported by clear and convincing evidence, that as of the date of the award or settlement, at least three (3) of the following facts concerning the employee are true:
    1. The employee lacks a high school diploma or general equivalency diploma or the employee cannot read or write on a grade eight (8) level;
    2. The employee is fifty-five (55) years of age or older;
    3. The employee has no reasonably transferable job skills from prior vocational background and training; and
    4. The employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.
  3. Subsections (a) and (b) shall not apply to injuries sustained on or after July 1, 2009, by an employee who is not eligible or authorized to work in the United States under federal immigration laws.

Acts 1992, ch. 900, § 18; 2004, ch. 962, § 12; 2009, ch. 526, § 2.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004 to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

    1. Constitutionality. 2. Construction. 3. Applicability. 4. Maximum Award. 5. Standard of Proof.

    The impairment rating model of T.C.A. §§ 50-6-241 and 50-6-242, including the multipliers and use of the AMA Guides and other factors, and the escape provisions in T.C.A. § 50-6-242, do not violate equal protection. Brown v. Campbell County Bd. of Educ., 915 S.W.2d 407, 1995 Tenn. LEXIS 781 (Tenn. 1995), cert. denied, 517 U.S. 1222, 116 S. Ct. 1852, 134 L. Ed. 2d 952, 1996 U.S. LEXIS 3465 (1996).

NOTES TO DECISIONS

1. Constitutionality.

2. Construction.

T.C.A. § 50-6-242 reflects a clear legislative intent to restrict disability awards as indicated in T.C.A. § 50-6-241; the delineated limits should be exceeded only when there is a showing by clear and convincing evidence that they should be exceeded. Middleton v. Allegheny Elec. Co., 897 S.W.2d 695, 1995 Tenn. LEXIS 243 (Tenn. Special Workers' Comp. App. Panel 1995).

By its plain language, T.C.A. § 50-6-242 makes clear that it only applies to an award under T.C.A. § 50-6-241(a)(2) or (b) where there has been a loss of employment or no meaningful return to work; therefore, T.C.A. § 50-6-242 did not apply where there was a finding of meaningful return to work. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 1999 Tenn. LEXIS 603 (Tenn. 1999).

3. Applicability.

Because employee's award of permanent partial disability was enlarged to an award of permanent total disability, T.C.A. § 50-6-242 is inapplicable under its own terms. Warren v. American Holding Co., 20 S.W.3d 621, 2000 Tenn. LEXIS 340 (Tenn. Special Workers' Comp. App. Panel 2000), aff'd, 2000 Tenn. LEXIS 339 (Tenn. June 19, 2000).

Requirements of T.C.A. § 50-6-242(1) are satisfied whenever an employee cannot read or write on an eighth-grade level or lacks a high school or general equivalency diploma; both elements do not need to be satisfied, and the exception to the multiplier provision of T.C.A. § 50-6-241(b) applies because an employee does not have a high school or equivalency diploma. Leab v. S & H Mining Co., 76 S.W.3d 344, 2002 Tenn. LEXIS 267 (Tenn. 2002).

4. Maximum Award.

In cases where an employee has a greater vocational disability than allowed by the multipliers in T.C.A. § 50-6-241, on account of age, lack of education or lack of employment opportunities, the employee may be awarded up to 400 weeks of benefits under T.C.A. § 50-6-242, but such employee does not qualify for lifetime benefits and is limited to the maximum award of 400 weeks. Seiber v. Greenbrier Indus., 906 S.W.2d 444, 1995 Tenn. LEXIS 549 (Tenn. Special Workers' Comp. App. Panel 1995).

T.C.A. § 50-6-241 is inapplicable to permanent total disability and does not preclude a trial judge from awarding permanent total disability merely because an anatomical impairment rating is less than 16.7 percent. Seiber v. Greenbrier Indus., 906 S.W.2d 444, 1995 Tenn. LEXIS 549 (Tenn. Special Workers' Comp. App. Panel 1995).

5. Standard of Proof.

In order to award support in excess of the “multiplier” provisions contained in T.C.A. § 50-6-241(b), the trial court must document clear and convincing evidence to support its decision pursuant to T.C.A. § 50-6-242. Peace v. Easy Trucking Co., 38 S.W.3d 526, 2001 Tenn. LEXIS 85 (Tenn. 2001).

The decision whether the requirements of T.C.A. § 50-6-242 are supported by clear and convincing evidence is to be made by the trial court, not by the Tennessee supreme court. Peace v. Easy Trucking Co., 38 S.W.3d 526, 2001 Tenn. LEXIS 85 (Tenn. 2001).

50-6-243. Agreements to receive payments greater than the schedule provides — Applicability. [Applicable to injuries occurring prior to July 1, 2014.]

  1. An employee may sign an agreement before or after an injury resulting in temporary total disability due to an accident arising out of and in the course of employment in which the employee may receive from the employer, for up to six (6) months after the date of injury, an amount greater than the schedule of compensation for the injury in § 50-6-207. Any agreed payment that is greater than the amount provided by § 50-6-207 shall be credited as an offset to any subsequent award or settlement for permanent partial disability, permanent total disability, or death benefits.
  2. If the employee's temporary total disability exceeds six (6) months from the date of injury, any payments greater than those provided by § 50-6-207, made after that date, shall not be credited as an offset to any subsequent award or settlement for permanent partial disability, permanent total disability, or death benefits.
  3. This section applies to employees of municipalities, counties, and other governmental entities.

Acts 1992, ch. 1002, § 1.

Compiler's Notes. Acts 2013, ch. 289, § 91, effective July 1, 2014, amends § 50-6-243 by deleting it in its entirety.  However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law.  Thus, this section remains in effect as to injuries occurring prior to July 1, 2014.

50-6-244. Statistical data form for assessment of workers' compensation system — Penalty for noncompliance.

  1. The bureau shall develop a statistical data form for collecting data relevant to assessing the workers' compensation system. In developing or altering the form, the bureau shall seek written comment from the advisory council on workers' compensation and the administrative office of the courts. The administrator shall submit the proposed form to the commerce and labor committee of the senate, and the consumer and human resources committee of the house of representatives, together with any written comments of the advisory council on workers' compensation and the administrative office of the courts, prior to submission of a proposed rule to the attorney general and reporter. The administrator shall promulgate the form by rule, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
    1. A statistical data form must be filed for every workers' compensation matter that is concluded by trial or settlement. Settlement includes a settlement for initial benefits, a settlement for increased benefits, and a settlement for closure of future medical benefits that remained open pursuant to a prior order, even if a statistical data form was filed at the time of submission of the prior order.
    2. The bureau shall seek written comment on substantive changes to the statistical data form from the advisory council on workers' compensation. The administrator shall submit the proposed form to the commerce and labor committee of the senate and the consumer and human resources committee of the house of representatives, together with any written comments of the advisory council on workers' compensation, thirty (30) days prior to submission of a proposed rule to the attorney general and reporter.
    3. If the administrator or the administrator's designee determines that an employer or employer's agent fails to fully complete and timely file the statistical data form within ten (10) business days of the date of a compensation hearing order, the bureau may assess a civil penalty against the offending party of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) per violation.
  2. The clerk of the court shall forward to the administrator of the bureau of workers' compensation, on or before the tenth day of each calendar month, all workers' compensation statistical data forms filed with the clerk during the preceding calendar month.
  3. In cases involving a workers' compensation settlement that is submitted to the bureau for approval, the statistical data form required by this section shall also be completed and submitted to the bureau at the time of the submission of the settlement for approval. A settlement approved by the bureau shall not become final until the statistical data form required by this section is fully completed and received by the bureau.
  4. It is the responsibility of the employer or the employer's agent to complete and file the form required by this section, contemporaneously with the filing of the final order or settlement. The employee and any agent of the employee are required to cooperate with the employer in completing this form.
    1. If the administrator or the administrator's designee determines that an insurer or self-insured employer fails to complete substantially and file the statistical data forms with such frequency as to indicate a general business practice, the administrator may assess a monetary penalty against the insurance company for the employer or against the employer, if self insured. The amount of the monetary penalty shall not exceed one hundred dollars ($100). For the purposes of this subsection (f), “general business practice” means an insurer or self-insured employer fails to complete substantially and file a statistical data form more than five (5) times.
    2. No monetary penalty may be assessed by the administrator, or the administrators's designee, with respect to a form that has been filed with the bureau of workers' compensation for more than ninety (90) days. No monetary penalty may be assessed for a statistical data form that was not filed with the court clerk more than ninety (90) days from the date of entry of the final order of the court. No monetary penalty may be assessed due to the failure to provide information on the statistical data form that is solely within the knowledge of the employee or due solely to the failure of the employee to sign the form.
    3. An insurance company or self insured employer assessed a monetary penalty by the administrator pursuant to this subsection (f), may appeal the penalty under the Uniform Administrative Procedures Act. The administrator, or an agency member appointed by the administrator, shall have the authority to hear as a contested case an administrative appeal of any monetary penalty assessed pursuant to this subsection (f).

Acts 1998, ch. 1024, § 3; 1999, ch. 520, § 41; 2003, ch. 359, §§ 3, 4; 2005, ch. 429, § 13; 2011, ch. 410, § 10(c); 2013, ch. 236, § 31; 2013, ch. 282, § 1; 2015, ch. 341, § 15; 2017, ch. 344, § 9.

Compiler's Notes. For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Acts 2017, ch. 344, § 12 provided that the act, which amended this section, shall apply to violations that occur on and after May 9, 2017.

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, substituted “administrator” for “commissioner” throughout.

The 2015 amendment substituted “bureau” for “division” throughout.

The 2017 amendment substituted “bureau” for “department” throughout the section and rewrote (b) which read: “(b)(1) A statistical data form shall be filed for every workers' compensation matter that is concluded by settlement, whether approved by a court or the department. A statistical data form shall be filed for every workers' compensation matter that is concluded by a trial so that the form reflects the trial court's ruling and information that is current as of the date the trial order is submitted to the court for approval, whether or not an appeal of the matter is anticipated or filed. A statistical data form shall be either typed or completed by computer using a form available on the web site of the bureau of workers' compensation.“(2) A statistical data form is not required to be filed in cases that involve reconsideration of a prior settlement or trial judgment order for which a statistical data form was filed at the time of submission of the prior order. A statistical data form is not required to be filed if the only issue resolved by an order is the closing of future medical benefits that remained open pursuant to a prior order for which a statistical data form was filed at the time of submission of the prior order.“(3) In cases involving a workers' compensation settlement that is approved by a court, the completed statistical data form shall be filed at the same time as the order approving the settlement is filed and shall be filed with the clerk of the court in which the settlement order is filed. A clerk of the court shall not accept a settlement order for filing, unless it is accompanied by a fully completed statistical data form.“(4) In cases involving a workers' compensation case that is resolved by trial, the completed statistical data form shall be filed at the same time as the final order is submitted to the trial court for approval and shall be filed with the clerk of the court in which the matter was tried. A clerk of the court shall not accept a trial order for filing, unless it is accompanied by a fully completed statistical data form.“(5) A settlement order of a court in a workers' compensation matter is not final until the statistical data form required by this section is fully completed and filed with the appropriate clerk of the court.“(6) A workers' compensation trial order is not final until the statistical data form required by this section is fully completed and filed with the appropriate clerk of the court. In the event of an appeal of a workers' compensation trial verdict to the supreme court of Tennessee, this section shall neither abrogate nor supersede the Rules of Appellate Procedure regarding the computation of the time for the proper filing of a notice of appeal. The information submitted in the statistical data form shall not be admissible on appeal for any purpose.”

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2017, ch. 344, § 12. May 9, 2017.

Code Commission Notes.

The former fourth sentence of (a) and the end of the last sentence of (a), concerning deadlines for the promulgation of rules, and former subdivision (f)(3), concerning the deadline for the notification of certain entities regarding the provisions of this section, were deleted as obsolete by the code commission in 2005.

50-6-244. Statistical data form for assessment of workers' compensation system — Penalty for noncompliance. [Applicable to injuries occurring prior to July 1, 2014.]

  1. The department shall develop a statistical data form for collecting data relevant to assessing the workers' compensation system. In developing or altering the form, the department shall seek written comment from the advisory council on workers' compensation and the administrative office of the courts. The commissioner shall submit the proposed form to the commerce and labor committee of the senate, and the consumer and human resources committee of the house of representatives, together with any written comments of the advisory council on workers' compensation and the administrative office of the courts, prior to submission of a proposed rule to the attorney general and reporter. The commissioner shall promulgate the form by rule, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
    1. A statistical data form shall be filed for every workers' compensation matter that is concluded by settlement, whether approved by a court or the department. A statistical data form shall be filed for every workers' compensation matter that is concluded by a trial so that the form reflects the trial court's ruling and information that is current as of the date the trial order is submitted to the court for approval, whether or not an appeal of the matter is anticipated or filed. A statistical data form shall be either typed or completed by computer using a form available on the web site of the division of workers' compensation.
    2. A statistical data form is not required to be filed in cases that involve reconsideration of a prior settlement or trial judgment order for which a statistical data form was filed at the time of submission of the prior order. A statistical data form is not required to be filed if the only issue resolved by an order is the closing of future medical benefits that remained open pursuant to a prior order for which a statistical data form was filed at the time of submission of the prior order.
    3. In cases involving a workers' compensation settlement that is approved by a court, the completed statistical data form shall be filed at the same time as the order approving the settlement is filed and shall be filed with the clerk of the court in which the settlement order is filed. A clerk of the court shall not accept a settlement order for filing, unless it is accompanied by a fully completed statistical data form.
    4. In cases involving a workers' compensation case that is resolved by trial, the completed statistical data form shall be filed at the same time as the final order is submitted to the trial court for approval and shall be filed with the clerk of the court in which the matter was tried. A clerk of the court shall not accept a trial order for filing, unless it is accompanied by a fully completed statistical data form.
    5. A settlement order of a court in a workers' compensation matter is not final until the statistical data form required by this section is fully completed and filed with the appropriate clerk of the court.
    6. A workers' compensation trial order is not final until the statistical data form required by this section is fully completed and filed with the appropriate clerk of the court. In the event of an appeal of a workers' compensation trial verdict to the supreme court of Tennessee, this section shall neither abrogate nor supersede the Rules of Appellate Procedure regarding the computation of the time for the proper filing of a notice of appeal. The information submitted in the statistical data form shall not be admissible on appeal for any purpose.
  2. The clerk of the court shall forward to the administrator of the division of workers' compensation, on or before the tenth day of each calendar month, all workers' compensation statistical data forms filed with the clerk during the preceding calendar month.
  3. In cases involving a workers' compensation settlement that is submitted to the department for approval, the statistical data form required by this section shall also be completed and submitted to the department at the time of the submission of the settlement for approval. A settlement approved by the department shall not become final until the statistical data form required by this section is fully completed and received by the department.
  4. It is the responsibility of the employer or the employer's agent to complete and file the form required by this section, contemporaneously with the filing of the final order or settlement. The employee and any agent of the employee are required to cooperate with the employer in completing this form.
    1. If the commissioner or the commissioner's designee determines that an insurer or self-insured employer fails to complete substantially and file the statistical data forms with such frequency as to indicate a general business practice, the commissioner may assess a monetary penalty against the insurance company for the employer or against the employer, if self insured. The amount of the monetary penalty shall not exceed one hundred dollars ($100). For the purposes of this subsection (f), “general business practice” means an insurer or self-insured employer fails to complete substantially and file a statistical data form more than five (5) times.
    2. No monetary penalty may be assessed by the commissioner, or the commissioner's designee, with respect to a form that has been filed with the division of workers' compensation for more than ninety (90) days. No monetary penalty may be assessed for a statistical data form that was not filed with the court clerk more than ninety (90) days from the date of entry of the final order of the court. No monetary penalty may be assessed due to the failure to provide information on the statistical data form that is solely within the knowledge of the employee or due solely to the failure of the employee to sign the form.
    3. An insurance company or self insured employer assessed a monetary penalty by the commissioner pursuant to this subsection (f), may appeal the penalty under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The commissioner, or an agency member appointed by the commissioner, shall have the authority to hear as a contested case an administrative appeal of any monetary penalty assessed pursuant to this subsection (f).

Acts 1998, ch. 1024, § 3; 1999, ch. 520, § 41; 2003, ch. 359, §§ 3, 4; 2005, ch. 429, § 13; 2011, ch. 410, § 10(c); 2013, ch. 236, § 31.

Compiler's Notes. For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

Code Commission Notes.

The former fourth sentence of (a) and the end of the last sentence of (a), concerning deadlines for the promulgation of rules, and former subdivision (f)(3), concerning the deadline for the notification of certain entities regarding the provisions of this section, were deleted as obsolete by the code commission in 2005.

Attorney General Opinions. Statistical information in domestic relations and worker's compensation cases, OAG 99-230 (12/15/99).

NOTES TO DECISIONS

1. Filing Requirements.

In a workers' compensation appeal, the employer contended that because the statistical data (SD1) form was not filed “contemporaneously” with the judgment, the time for filing the notice of appeal began when the SD1 form was filed (November 7, 2001) and not July 13, 2001, the date the judgment was entered. The appellate court held that while the statistical data (SD1) form had to be filed in accordance with T.C.A. § 50-6-244(a), to the extent T.C.A. § 50-6-244(a) conflicted with the 30-day time limit prescribed by T.R.A.P. 4, T.R.A.P. 4 controlled; therefore, the workers' compensation judgment was final on the date of entry stamped by the trial court clerk whether or not it was filed contemporaneously with the SD1 form, and the employer's appeal, filed 34 days after the judgment was entered, was untimely. Corum v. Holston Health & Rehab. Ctr., 104 S.W.3d 451, 2003 Tenn. LEXIS 338 (Tenn. 2003).

50-6-245. Judgments with multiple findings and separate awards.

  1. If following a civil action in a workers' compensation case filed pursuant to § 50-6-225, the court enters a judgment or decree that includes multiple findings with separate awards of payment to the employee, the following shall apply:
    1. If the employer, insurer or employee appeals one (1) or more of the findings but not all, any payments owed to the employee as the result of a finding not appealed shall be due and payable to the employee when the time for appealing the judgment or decree has expired.
    2. If the employer, insurer or employee appeals more than one (1) of the findings and the supreme court grants permission to appeal as to at least one (1) of the findings appealed but not all, any payments owed to the employee as the result of a finding not appealed or for which permission to appeal was not granted shall be due and payable to the employee when the time for appealing the judgment or decree has expired.
    1. When the time for filing an appeal has expired under subdivision (a)(1), the court, unless in its discretion it determines otherwise, shall enter final judgment pursuant to Rule 54.02 of the Rules of Civil Procedure as to all findings not appealed.
    2. When the time for filing an appeal has expired under subdivision (a)(2), the supreme court, unless in its discretion it determines otherwise, shall issue a mandate pursuant to Rule 42 of the Rules of Appellate Procedure as to all findings for which permission to appeal was not granted.

Acts 2000, ch. 738, § 1.

Compiler's Notes. Acts 2000, ch. 738, § 2 provided that this section shall apply to all workers' compensation judgments and decrees entered on or after July 1, 2000.

50-6-246. Rules and regulations governing medical impairment rating. [Applicable to injuries occurring prior to July 1, 2014.]

To assure employees, employers and the department have the information necessary to resolve a workers' compensation claim and to effectuate the legislative intent of § 50-6-241, the commissioner of labor and workforce development shall establish rules, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to govern the provision of a medical impairment rating required by § 50-6-204(d)(3)(A). The commissioner shall promulgate these rules in conjunction with the advisory council on workers' compensation. The rules required by this section shall take effect on October 1, 2008. The commissioner is authorized to use emergency rules under former § 4-5-209(a)(4) or emergency rules under § 4-5-208, as appropriate, in order to have such rules in effect no later than October 1, 2008.

Acts 2002, ch. 523, § 3; 2008, ch. 1183, § 8.

Compiler's Notes. Acts 2013, ch. 289, § 92, effective July 1, 2014, amends § 50-6-246 by deleting it in its entirety.  However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law.  Thus, this section remains in effect as to injuries occurring prior to July 1, 2014.

Acts 2009, ch. 566, 12 rewrote § 4-5-209, removing designations.

Acts 2009, ch. 566, § 12 provided that the Tennessee code commission is directed to change all references to public necessity rules, wherever such references appear in this code, to emergency rules, as sections are amended and volumes are replaced

Part 3
Occupational Diseases

50-6-301. “Occupational diseases” defined. [Applicable to injuries occurring prior to July 1, 2014.]

  1. As used in this chapter, “occupational diseases” means all diseases arising out of and in the course of employment. A disease shall be deemed to arise out of the employment only if:
    1. It can be determined to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment;
    2. It can be fairly traced to the employment as a proximate cause;
    3. It has not originated from a hazard to which workers would have been equally exposed outside of the employment;
    4. It is incidental to the character of the employment and not independent of the relation of employer and employee;
    5. It originated from a risk connected with the employment and flowed from that source as a natural consequence, though it need not have been foreseen or expected prior to its contraction; and
    6. There is a direct causal connection between the conditions under which the work is performed and the occupational disease. Diseases of the heart, lung, and hypertension arising out of and in the course of any type of employment shall be deemed to be occupational diseases.
  2. Cumulative trauma conditions, hearing loss, carpal tunnel syndrome, and all other repetitive motion conditions shall not be considered an occupational disease unless such conditions arose primarily out of and in the course and scope of employment. The opinion of the physician, selected by the employee from the employer's designated panel of physicians pursuant to §§ 50-6-204(a)(4)(A) or (a)(4)(B), shall be presumed correct on the issue of causation but said presumption shall be rebutted by a preponderance of the evidence.

Acts 1947, ch. 139, § 1; C. Supp. 1950, § 6852; Acts 1959, ch. 172, § 12; 1969, ch. 60, § 1; 1971, ch. 134, § 5; 1973, ch. 122, § 1; 1977, ch. 339, §§ 2, 5; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1101; Acts 2011, ch. 416, § 9.

Compiler's Notes. Acts 2013, ch. 289, § 93, effective July 1, 2014, amends § 50-6-301 by deleting it in its entirety.  However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law.  Thus, this section remains in effect as to injuries occurring prior to July 1, 2014.

NOTES TO DECISIONS

1. In General.

Employee was entitled to workers' compensation benefits because the employee developed a lung condition as a consequence of the employee's exposure at work to grain dust that was produced by a grain facility adjacent to the employer's workplace. Plotner v. Metal Prep, — S.W.3d —, 2014 Tenn. LEXIS 677 (Tenn. Sept. 29, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 679 (Tenn. Sept. 29, 2014).

2. Causation.

Trial court was presented with conflicting expert medical opinions, all of which were based on a combination of known facts, assumptions, and medical uncertainties, plus the employee had no medical history of pulmonary issues, cigarette smoking, or lung-related illness prior to being exposed to fumes from a chemical fungicide while at work; all reasonable doubts as to the causation of an injury and whether the injury arose out of employment were to be resolved in favor of the employee, and thus the judgment in the employee's favor was affirmed. Peek v. Tri-green Equip., LLC, — S.W.3d —, 2014 Tenn. LEXIS 1111 (Tenn. Dec. 30, 2014), aff'd, Peek v. Tri-Green Equip., LLC, — S.W.3d —, 2014 Tenn. LEXIS 1108 (Tenn. Dec. 30, 2014).

50-6-302. Retroactivity — Coal worker's pneumoconiosis, effect of federal law.

  1. An occupational disease that an employee had on March 12, 1947, shall not be covered under this chapter. An employee has an occupational disease within the meaning of this chapter if the disease or condition has developed to such an extent that it can be diagnosed as an occupational disease. In every suit for compensation benefits, the burden shall be on the employee to prove that the employee did not have, as of that date, the occupational disease for which the employee is seeking compensation.
  2. In considering whether an employee has the occupational disease of coal worker's pneumoconiosis and is totally disabled or dies from coal worker's pneumoconiosis, all the presumptions, criteria and standards contained in or promulgated by reason of the federal Coal Mine Health and Safety Act of 1969, Pub. L. No. 91-173, compiled in 30 U.S.C. § 901 et seq., specified as the basis for determining eligibility of applicants for benefits because of the disease or its effects shall be used and be applicable under this chapter, and where in a proceeding under this chapter for benefits it is determined the employee or the employee's dependents would be entitled to benefits under the federal Coal Mine Health and Safety Act of 1969, and the Black Lung Benefits Act of 1972, Pub. L. No. 92-303, compiled in 30 U.S.C. § 901 et seq., the employee or the employee's dependents by reason of the determination shall be considered totally disabled from coal worker's pneumoconiosis and its effects, under this chapter the same as if the employee, or the employee's dependents, establishes the right to recover benefits based upon a total disability from coal worker's pneumoconiosis, or death by reason of coal worker's pneumoconiosis under the laws of this state.

Acts 1947, ch. 139, § 1; C. Supp. 1950, § 6852; Acts 1971, ch. 300, § 4; 1980, ch. 739, § 1; T.C.A. (orig. ed.), § 50-1102.

Compiler's Notes. The federal Coal Mine Health and Safety Act of 1969, referred to in this section, is now cited as the Black Lung Benefits Act.

Textbooks. Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 300.12.

Law Reviews.

Workers' Compensation Outline (Paul Campbell III), 18 No. 3 Tenn. B.J. 11 (1982).

NOTES TO DECISIONS

1. In General.

It was the intent of the general assembly to adopt the federal law concerning coal worker's pneumoconiosis as the law in Tennessee. Gibson v. Consolidation Coal Co., 588 S.W.2d 290, 1979 Tenn. LEXIS 518 (Tenn. 1979).

The general assembly adopted all of the presumptions, criteria and standards contained in or promulgated by reason of the federal Coal Mine Health and Safety Act of 1969 (30 U.S.C. § 901 et seq.; now cited as the Black Lung Benefits Act), for use in determining whether an employee has the occupational disease of coal worker's pneumoconiosis and is totally disabled therefrom. Hensley v. Consolidation Coal Co., 658 S.W.2d 94, 1983 Tenn. LEXIS 725 (Tenn. 1983).

2. Applicability of 1980 Amendment.

The 1980 Amendment, adding the reference to the Black Lung Benefits Act of 1972, 30 U.S.C. § 901 et seq., is applicable to all cases pending after April 3, 1980, regardless of the date the case was filed. Swanger v. Old Repulic Ins. Co., 629 S.W.2d 904, 1982 Tenn. LEXIS 392 (Tenn. 1982).

3. Application.

An employee is not entitled to compensation for occupational disease contracted prior to date on which this part became effective. Greener v. E. I. Du Pont De Nemours & Co., 188 Tenn. 303, 219 S.W.2d 185, 1949 Tenn. LEXIS 342 (1949); McClung v. National Carbon Co., 190 Tenn. 202, 228 S.W.2d 488, 1950 Tenn. LEXIS 439 (1950).

Where it appears that an occupational disease was contracted before the effective date of this part and the employee severed his connection with the employer before that date, there can be no recovery of benefits under this part. McClung v. National Carbon Co., 190 Tenn. 202, 228 S.W.2d 488, 1950 Tenn. LEXIS 439 (1950).

Where the permanent disabling factor of worker's occupational disease was his inability to come into contact without an exacerbation of his dermatitis and such condition had been present since prior to March 12, 1947, worker had sustained no compensable permanent partial disability. E. I. Dupont Denemours & Co. v. Johnson, 212 Tenn. 123, 368 S.W.2d 295, 1963 Tenn. LEXIS 404 (1963).

Where, in action for workers' compensation for disease resulting from radiation, plaintiff alleged that his employment terminated in 1945 and that he was not thereafter exposed to radiation, the disability caused was not subject to the provisions of the Workers' Compensation Law. Kuhne v. United States, 250 F. Supp. 523, 1965 U.S. Dist. LEXIS 6145 (E.D. Tenn. 1965).

4. Diagnosis — Meaning.

Diagnosis is a physician's conclusion as to the existence or identity of disease, drawn from the observable symptoms. Greener v. E. I. Du Pont De Nemours & Co., 188 Tenn. 303, 219 S.W.2d 185, 1949 Tenn. LEXIS 342 (1949).

5. Disease Not Subject to Diagnosis on Effective Date of Part.

Evidence that employee died of silicosis and tuberculosis, that he may have had silicosis before this part went into effect but that it had not developed to such an extent that it could be diagnosed as an occupational disease prior to the effective date of this part, properly supported award to widow. Housley v. American Mut. Liability Ins. Co., 197 Tenn. 38, 270 S.W.2d 349, 1954 Tenn. LEXIS 449 (1954).

6. Pleading.

The allegation of the petition that after some time in October, 1946, petitioner developed conditions which were symptoms of lead poisoning did not amount to an allegation that on March 12, 1947, a physician was able to diagnose his ailment as lead poisoning. Greener v. E. I. Du Pont De Nemours & Co., 188 Tenn. 303, 219 S.W.2d 185, 1949 Tenn. LEXIS 342 (1949).

7. Right of Employer to Deny Liability.

Employer is not estopped to deny liability on ground that employee was suffering with disease before effective date of this chapter because its physicians did not disclose to employee that he was suffering from disease, when his claim was not prejudiced by this failure and when employee's own physician had told him before the date that he had the disease. Greener v. E. I. Du Pont De Nemours & Co., 190 Tenn. 105, 228 S.W.2d 77, 1950 Tenn. LEXIS 426 (1950).

8. Findings as to Date Disease Subject to Diagnosis.

In action by employee against employer for damages resulting from condition of employer's plant whereby it was alleged that employee acquired silicosis, special finding of jury that employee's disease could have been diagnosed as silicosis in 1948 did not exclude the possibility that the disease was diagnosable on or before March 12, 1947. Lenoir Car Works v. Littleton, 41 Tenn. App. 323, 293 S.W.2d 585, 1956 Tenn. App. LEXIS 171 (Tenn. Ct. App. 1956).

9. Federal Coal Mine Health and Safety Act — Incorporation by Reference.

This section and § 50-6-303 incorporated into Tennessee law that portion of the federal Coal Mine Health and Safety Act of 1969, as amended, which concerns coal worker's pneumoconiosis (30 U.S.C. § 901 et seq.; now cited as the Black Lung Benefits Act). Moore v. Old Republic Ins. Co., 512 S.W.2d 564, 1974 Tenn. LEXIS 489 (Tenn. 1974); Solomon v. Old Republic Ins. Co., 664 S.W.2d 70, 1984 Tenn. LEXIS 726 (Tenn. 1984).

In state proceeding, all of the presumptions and standards created by the federal Coal Mine Health and Safety Act of 1969 (30 U.S.C. § 901 et seq.; now cited as the Black Lung Benefits Act) and used to determine eligibility for black lung disability payments are incorporated by reference into state law. Blankenship v. Old Republic Ins. Co., 539 S.W.2d 23, 1976 Tenn. LEXIS 568 (Tenn. 1976).

10. Application of Federal Law.

Federal law provides that coverage may be rebutted by showing that the pulmonary or respiratory impairment did not arise out of or in connection with employment in coal mine, and where there was testimony that smoking was the cause of plaintiff's emphysema and the major cause of his disability, there was evidence to support judgment of trial court against plaintiff. Jeffers v. Sterling Garrett Coal Co., 583 S.W.2d 594, 1979 Tenn. LEXIS 447 (Tenn. 1979).

The liability of the last employer for coal worker's pneumoconiosis is not affected by federal regulations. Huddleston v. P & L Coal Co., 587 S.W.2d 377, 1979 Tenn. LEXIS 505 (Tenn. 1979).

The determination as to whether a worker is totally disabled from pneumoconiosis must be governed by the federal statutes and regulations. Gibson v. Consolidation Coal Co., 588 S.W.2d 290, 1979 Tenn. LEXIS 518 (Tenn. 1979).

11. Determining Existence and Extent of Disease.

Trial court's decision that employee suffered only 80 percent permanent disability as a result of coal worker's pneumoconiosis, while supported by testimony of doctors that he was able to do light work, was improperly based on the standards governing ordinary workers' compensation claims, rather than those contained in the applicable federal statute, and thus a new trial was required. Lawson v. Oneida Fuel & Coal Co., 529 S.W.2d 220, 1975 Tenn. LEXIS 580 (Tenn. 1975).

Despite required application of federal presumptions and criteria, this section permits state court to determine worker eligibility for benefits independently of federal administrative findings. Blankenship v. Old Republic Ins. Co., 539 S.W.2d 23, 1976 Tenn. LEXIS 568 (Tenn. 1976).

12. Sufficiency of Evidence.

Where employee was determined by a specialist to be totally permanently disabled by coal worker's pneumoconiosis according to applicable federal statutes and regulations prior to the time that he worked four days as a relief driver for his son at another strip mine, court's finding that he was last injuriously exposed to the hazards of the disease while working for his previous employer was proper. Hill v. Four-Leaf Coal Co., 529 S.W.2d 225, 1975 Tenn. LEXIS 581 (Tenn. 1975).

An award from the social security administration under the federal Coal Mine Health and Safety Act of 1969 (30 U.S.C. § 901 et seq.; now cited as the Black Lung Benefits Act) is not binding or conclusive upon the state courts in determining entitlement to workers' compensation under this section, although the trial judge is not prohibited from considering and evaluating the proof which was before the federal agency. Old Republic Ins. Co. v. Blankenship, 567 S.W.2d 156, 1978 Tenn. LEXIS 596 (Tenn. 1978).

13. Adjudication of Permanent Total Disability — Effect.

An employee who previously has been adjudicated 100 percent totally and permanently disabled because of traumatic injuries received in a mining accident and who has not shown a rehabilitation from his disability cannot again be declared totally and permanently disabled from pneumoconiosis. Partin v. Old Republic Ins. Co., 580 S.W.2d 775, 1979 Tenn. LEXIS 428 (Tenn. 1979).

14. Scope of Review.

The scope and standard of review in cases involving disability from coal worker's pneumoconiosis are those traditionally applied in other compensation cases. Gibson v. Consolidation Coal Co., 588 S.W.2d 290, 1979 Tenn. LEXIS 518 (Tenn. 1979).

50-6-303. Compensation and benefits.

    1. When the employer and employee are subject to this chapter, the partial or total incapacity for work or the death of an employee resulting from an occupational disease as defined in § 50-6-301 [Applicable only to injuries occurring prior to July 1, 2014. See the Compiler's Notes.], shall be treated as the happening of an injury by accident or death by accident, and the employee, or in case of the employee's death, the employee's dependents, shall be entitled to compensation as provided in this chapter.
    2. An employee who has an occupational disease shall be entitled to the same hospital, medical and miscellaneous benefits as an employee who has a compensable injury by accident, and, in the event of death, the same funeral benefit shall be paid as in the case of death from a compensable accident.
    1. An employee totally disabled due to coal workers' pneumoconiosis shall be paid benefits during disability as provided for by the federal Coal Mine Health and Safety Act of 1969, compiled in 30 U.S.C. § 901 et seq.
    2. In accordance with the federal Coal Mine Health and Safety Act of 1969, if the employee has one (1) or more dependents, the payments shall be increased fifty percent (50%) of such payments for the first dependent, seventy-five percent (75%) for two (2) dependents, and one hundred percent (100%) for three (3) or more dependents.
    3. In case of death of an employee receiving benefits under this chapter, benefits shall be paid to that employee's surviving spouse and any dependents in the same manner provided in the federal Coal Mine Health and Safety Act of 1969, as applicable to employees suffering from coal workers' pneumoconiosis.
    4. Benefits paid under this subsection (b) shall not be subject to the maximum compensation limitations set forth in §§ 50-6-205, 50-6-207(1), (3) and (4), 50-6-209, 50-6-210(e)(10) or any other sections of this chapter, but the maximum compensation limitations shall be controlled exclusively by the maximum compensation benefits and limitations established under the federal Coal Mine Health and Safety Act of 1969, as applicable to employees suffering from coal workers' pneumoconiosis.
    5. The minimum compensation limitations for employees suffering from coal workers' pneumoconiosis shall be no less than those set forth in the federal Coal Mine Health and Safety Act of 1969.

Acts 1947, ch. 139, § 1; C. Supp. 1950, § 6852; Acts 1971, ch. 300, § 5; 1972, ch. 699, § 6; 1975, ch. 210, § 1; 1977, ch. 339, § 3; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1105; Acts 1985, ch. 325, § 1.

Compiler's Notes. The federal Coal Mine Health and Safety Act of 1969, referred to in this section, is now cited as the Black Lung Benefits Act.

Acts 2013, ch. 289, § 93, effective July 1, 2014, amends § 50-6-301, referred to in this section, by deleting it in its entirety. However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law. Thus, § 50-6-301 remains in effect as to injuries occurring prior to July 1, 2014.

Law Reviews.

A Package of Problems: A Suspicious Package Can Raise More than Fears of Anthrax. It Could also Present a Potential Liability for an Employer. (James K. Simms IV), 38 No. 2 Tenn. B.J. 12 (2002).

Recent Developments — Workers' Compensation — Choice of Physician — Post-Judgment Right of Control, 48 Tenn. L. Rev. 196 (1981).

NOTES TO DECISIONS

1. Constitutionality.

Since this section incorporated by reference the federal law concerning coal worker's pneumoconiosis, which supplied a specific method of determining the rate and the exact benefits and limitations, this section is not unconstitutionally vague under the Tennessee Constitution. Moore v. Old Republic Ins. Co., 512 S.W.2d 564, 1974 Tenn. LEXIS 489 (Tenn. 1974).

2. Construction.

The term “beginning of the incapacity” as used in § 50-6-306 carries the same meaning as the term “the happening of the injury” as used in this section. Adams v. American Zinc Co., 205 Tenn. 189, 326 S.W.2d 425, 1959 Tenn. LEXIS 353 (1959); Tennessee Products & Chemical Corp. v. Reeves, 220 Tenn. 148, 415 S.W.2d 118, 1967 Tenn. LEXIS 396 (1967).

The addition by the compiler of the parenthetical reference to the sections of the United States Code following the reference in this section to the federal Coal Mine Health and Safety Act of 1969, no such reference to U.S.C. sections having appeared in the original act passed by the general assembly and signed by the governor, was held by the court to be mere surplusage which could not, in view of § 1-1-108, in any way alter the sense or meaning of this section. Moore v. Old Republic Ins. Co., 512 S.W.2d 564, 1974 Tenn. LEXIS 489 (Tenn. 1974).

This section as amended in 1975 incorporates only the maximum limits of compensation contained in the federal Coal Mine Health and Safety Act of 1969 (30 U.S.C. § 901 et seq.; now cited as the Black Lung Benefits Act), but in all other respects the benefits payable under the worker's compensation laws of Tennessee for coal worker's pneumoconiosis are as set out in the Tennessee statutes. Royal Indem. Co. v. Futtrell, 585 S.W.2d 583, 1979 Tenn. LEXIS 479 (Tenn. 1979).

3. Scope.

The Workers' Compensation Act does not require an employee to be disabled in order to qualify for medical treatment benefits. Ingram v. Aetna Cas. & Sur. Co., 876 S.W.2d 91, 1994 Tenn. LEXIS 92 (Tenn. 1994), rehearing denied, Ingram v. Aetna Casualty & Sur. Co., 876 S.W.2d 91, 1994 Tenn. LEXIS 137 (Tenn. 1994).

4. Federal Coal Mine Health and Safety Act — Incorporation by Reference.

T.C.A. §§ 50-6-302 and 50-6-303 incorporated into Tennessee law that portion of the federal Coal Mine Health and Safety Act of 1969, as amended, which concerns coal worker's pneumoconiosis (30 U.S.C. § 901 et seq.; now cited as the Black Lung Benefits Act). Moore v. Old Republic Ins. Co., 512 S.W.2d 564, 1974 Tenn. LEXIS 489 (Tenn. 1974); Solomon v. Old Republic Ins. Co., 664 S.W.2d 70, 1984 Tenn. LEXIS 726 (Tenn. 1984).

5. Sufficiency of Evidence.

Where employee was determined by a specialist to be totally permanently disabled by coal worker's pneumoconiosis according to applicable federal statutes and regulations prior to the time that he worked four days as a relief driver for his son at another strip mine, court's finding that he was last injuriously exposed to the hazards of the disease while working for his previous employer was proper. Hill v. Four-Leaf Coal Co., 529 S.W.2d 225, 1975 Tenn. LEXIS 581 (Tenn. 1975).

Where there was medical testimony that employee's silicotic condition was disabling and permanent, a judgment awarding employee benefits for permanent partial disability was proper even though at the time the silicosis was discovered, employee had no earning capacity because he was totally disabled from a nonjob-related condition. Bishop v. United States Steel Corp., 593 S.W.2d 920, 1980 Tenn. LEXIS 400 (Tenn. 1980).

6. Asbestos Exposure.

An employee suffering from asbestos exposure in any of its manifestations is entitled to reimbursement for predisability medical expenses. Ingram v. Aetna Cas. & Sur. Co., 876 S.W.2d 91, 1994 Tenn. LEXIS 92 (Tenn. 1994), rehearing denied, Ingram v. Aetna Casualty & Sur. Co., 876 S.W.2d 91, 1994 Tenn. LEXIS 137 (Tenn. 1994).

7. Benefits Schedule Applicable.

In cases involving occupational diseases, the benefits schedule in effect on the date on which the employee becomes disabled as a result of the disease, rather than that in effect on the date on which he was last exposed to the agent causing the disease, is applied. Liberty Mut. Ins. Co. v. Starnes, 563 S.W.2d 178, 1978 Tenn. LEXIS 529 (Tenn. 1978).

Where worker petitioned for change in degree of disability, the chancellor in his new decree should have applied the rate of compensation in effect at the time of the worker's “partial or total incapacity for work” due to coal worker's pneumoconiosis, rather than the rate of compensation which was thereafter enacted and in effect at the time of the last hearing. Royal Indem. Co. v. Futtrell, 585 S.W.2d 583, 1979 Tenn. LEXIS 479 (Tenn. 1979).

The statute that determines the benefits to be paid a worker who is disabled as the result of an injury sustained in the course and scope of his employment, ordinarily, is the statute in effect at the time of the accident or injury that is the basis for the employee's claim. Shope v. Allied Chemical Corp., 611 S.W.2d 818, 1981 Tenn. LEXIS 407 (Tenn. 1981).

The maximum limitations on workers' compensation benefits set forth in various sections of the Tennessee statutes are not applicable to persons suffering from coal worker's pneumoconiosis. Phillips v. Old Republic Ins. Co., 623 S.W.2d 920, 1981 Tenn. LEXIS 502 (Tenn. 1981).

A coal miner suffering from pneumoconiosis shall receive a weekly benefit no less than that allowable to a totally disabled worker under the state statutes even though that rate exceeds the limitations of the federal Coal Mine Health and Safety Act of 1969 (30 U.S.C. § 901 et seq.; now cited as the Black Lung Benefits Act). Phillips v. Old Republic Ins. Co., 623 S.W.2d 920, 1981 Tenn. LEXIS 502 (Tenn. 1981).

8. Statute of Limitations.

The statute of limitations begins to run on a disability claim when the employee has knowledge, actual or constructive, that he has an occupational disease which injuriously affects his capacity to work to a degree amounting to a compensable disability. Ingram v. Aetna Cas. & Sur. Co., 876 S.W.2d 91, 1994 Tenn. LEXIS 92 (Tenn. 1994), rehearing denied, Ingram v. Aetna Casualty & Sur. Co., 876 S.W.2d 91, 1994 Tenn. LEXIS 137 (Tenn. 1994).

Collateral References.

Occupational disease within meaning of compensation act, disease resulting from unsanitary conditions not peculiar to kind of employment as. 105 A.L.R. 1411.

Recovery for discharge from employment in retaliation for filing worker's compensation claim. 32 A.L.R.4th 1221.

50-6-304. Last employer liable.

When an employee has an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of the disease, and the employer's insurance carrier, if any, at the time of the exposure, shall alone be liable, for the occupational disease, without right to contribution from any prior employer or insurance carrier.

Acts 1947, ch. 139, § 1; C. Supp. 1950, § 6852; Acts 1977, ch. 339, § 4; T.C.A. (orig. ed.), § 50-1106.

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 26.

Law Reviews.

Workmen's Compensation for Radiation Injuries in Tennessee (E. Blythe Stason), 19 Vand. L. Rev. 571 (1966).

NOTES TO DECISIONS

1. In General.

Under T.C.A. § 50-6-304, it is not the last employment nor the last exposure to the hazards of the disease which imposes liability; it is the last such exposure that is injurious to the employee. Morell v. Asarco, Inc., 611 S.W.2d 830, 1981 Tenn. LEXIS 410 (Tenn. 1981).

2. Purpose of Statute.

The purpose of this section was to fix a clear and definite test for determining which employer and insurer was liable and to avoid the issue of when the disease or disability came into existence. Tennessee Tufting Co. v. Potter, 206 Tenn. 620, 336 S.W.2d 539, 1960 Tenn. LEXIS 410 (1960), rehearing denied, 206 Tenn. 620, 337 S.W.2d 601, 1960 Tenn. LEXIS 423 (1960).

3. Last Employer or Insurance Carrier Liable.

Workers' compensation claimant collected award for occupational disease from employer's second subsequent insurer whose policy was in force when claimant was first notified by competent medical authorities of disease even though he had prior symptoms while prior insurer's policy was in force, since the cause of action accrued at the latter date and since this section refers to the carrier when employee was last injuriously exposed to the hazards of the disease. Wilson v. Van Buren County, 198 Tenn. 179, 278 S.W.2d 685, 1955 Tenn. LEXIS 360 (1955).

This section makes the test as to the liability of successive carriers not when the disability came into existence but when the claimant was last injuriously exposed to the hazards of the disease and the insurer during the period of such exposure alone is liable. Tennessee Tufting Co. v. Potter, 206 Tenn. 620, 336 S.W.2d 539, 1960 Tenn. LEXIS 410 (1960), rehearing denied, 206 Tenn. 620, 337 S.W.2d 601, 1960 Tenn. LEXIS 423 (1960).

Finding of lower court that disability complained of came into existence prior to a specified date was not inconsistent with holding of supreme court that employee was last exposed to hazards of the disease at a subsequent date and employer as of the date that employee was last exposed alone was liable for compensation. Tennessee Tufting Co. v. Potter, 206 Tenn. 620, 336 S.W.2d 539, 1960 Tenn. LEXIS 410 (1960), rehearing denied, 206 Tenn. 620, 337 S.W.2d 601, 1960 Tenn. LEXIS 423 (1960).

The second injury fund was not liable for benefits due an employee who was totally disabled from coal miner's pneumoconiosis. Adkins v. Consolidated Coal Co., 893 S.W.2d 939, 1995 Tenn. LEXIS 47 (Tenn. Special Workers' Comp. App. Panel 1995); Caudill v. Consolidation Coal Co., 910 S.W.2d 417, 1995 Tenn. LEXIS 695 (Tenn. Special Workers' Comp. App. Panel 1995).

4. Liability of First Employer.

Demonstration by insurance carrier of first employer that employee was injuriously exposed to occupational disease, dermatitis, during second employment had effect of absolving first employer and its carrier of liability relating to permanent partial disability from dermatitis even though second employer was not a party and its liability was not adjudged. Hudgins v. United States Fidelity & Guaranty Co., 479 S.W.2d 804, 1972 Tenn. LEXIS 400 (Tenn. 1972).

Where employee was determined by a specialist to be totally permanently disabled by coal worker's pneumoconiosis according to applicable federal statutes and regulations prior to the time that he worked four days as a relief driver for his son at another strip mine, court's finding that he was last injuriously exposed to the hazards of the disease while working for his previous employer was proper. Hill v. Four-Leaf Coal Co., 529 S.W.2d 225, 1975 Tenn. LEXIS 581 (Tenn. 1975).

5. Liability of Successive Employers.

In determining the liability of successive employers, the courts have applied the Tennessee statute rather than federal criteria in coal workers' pneumoconiosis cases. Huddleston v. P & L Coal Co., 587 S.W.2d 377, 1979 Tenn. LEXIS 505 (Tenn. 1979).

6. Necessary Proof.

It is not necessary that an employee prove he was free of a disease when he began working for the defendant employer to establish his claim for workers' compensation benefits, and it is sufficient that he prove he was last injuriously exposed to the hazard of the disease during his employment by the defendant. Asarco, Inc. v. Raley, 603 S.W.2d 113, 1980 Tenn. LEXIS 480 (Tenn. 1980).

Collateral References.

Workers' compensation: law enforcement officer's recovery for injury sustained during exercise or physical recreation activities. 44 A.L.R.5th 569.

50-6-305. Notice of contraction of disease and claim for compensation.

  1. Within thirty (30) days after the first distinct manifestation of an occupational disease, the employee, or someone in the employee's behalf, shall give written notice thereof to the employer in the same manner as is provided in the case of a compensable accidental injury.
  2. This section shall not apply to claims for total disability or death due to or resulting from an asbestos-related disease or coal worker's pneumoconiosis.

Acts 1947, ch. 139, § 1; C. Supp. 1950, § 6852; Acts 1971, ch. 300, § 6; T.C.A. (orig. ed.), § 50-1107; Acts 1997, ch. 177, § 1.

Law Reviews.

Recent Developments — Workers' Compensation — Choice of Physician — Post-Judgment Right of Control, 48 Tenn. L. Rev. 196 (1981).

Workers' Compensation Appeals Board Decisions. At an expedited hearing, the trial court property concluded an employee is likely to prevail at trial in proving he gave sufficient notice  of his alleged occupational disease even though the employee's physicians were concerned about lead exposure as early as 2005, where a specialist did not mention “occupational exposure to lead, with possible toxicity” until June 17, 2017, which was within 30 days of the employee's last day of work, and a treating physician did not opine the employee's occupational exposures were the primary cause of his medical condition until February 14, 2018, which was within six days of the date the employee filed his petition for benefits. Wilson v. O.G. Kelley and Company, 2019 TN Wrk Comp App Bd LEXIS 13.

NOTES TO DECISIONS

1. In General.

Where employee quit his job in 1969, but his cause of action was not complete until 1972 when pneumoconiosis was detected (or should have been detected), the applicable statute was the one in effect in 1972 and not the statute in effect in 1969. Bituminous Casualty Corp. v. Lewis, 538 S.W.2d 604, 1976 Tenn. LEXIS 494 (Tenn. 1976).

2. Nature of Notice.

Notice in occupational disease case is the same as that required in a case of accidental injury. Wilson v. Van Buren County, 196 Tenn. 487, 268 S.W.2d 363, 1954 Tenn. LEXIS 411 (1954).

Although there was no specific request for workers' compensation it was sufficient compliance with this section where employee gave employer notice of every fact he himself had in his possession, including doctor's letter which suggested that plaintiff's disease arose out of claimant's employment. Stratton-Warren Hardware v. Parker, 557 S.W.2d 494, 1977 Tenn. LEXIS 674 (Tenn. 1977).

3. Time Notice Required.

Written notice of occupational disease is not required until symptoms reach a point where all doubts are so far removed that a physician can diagnose trouble as an occupational disease. Greener v. E. I. Du Pont De Nemours & Co., 188 Tenn. 303, 219 S.W.2d 185, 1949 Tenn. LEXIS 342 (1949).

The question of reasonableness of excuse for failure to give notice required by the statute is one peculiarly for the trial judge and where there is material evidence to support his finding on the question such finding is final as far as the appellate court is concerned. Lampley v. St. Paul Mercury Indem. Co., 201 Tenn. 458, 300 S.W.2d 876, 1957 Tenn. LEXIS 324 (1957).

Finding by trial court of reasonable excuse for failure of uneducated 80 year-old dependent father of deceased workman to give notice that son's death resulted from silicosis was supported by material evidence and would not be disturbed on appeal where record disclosed that father did not learn of cause of death until five months later and notice was given two weeks later. Lampley v. St. Paul Mercury Indem. Co., 201 Tenn. 458, 300 S.W.2d 876, 1957 Tenn. LEXIS 324 (1957).

Where evidence sustained finding of trial court that by reason of his limited education claimant did not know until 1961 that he was suffering from occupational disease at which time he told his foreman something was wrong with him and that he was going to have to take steps, action of trial court in allowing compensation was proper. Smith v. Tennessee Furniture Industries, Inc., 208 Tenn. 608, 348 S.W.2d 290, 1961 Tenn. LEXIS 328 (1961).

Claimant in workers' compensation case who first claimed compensation for anthracosis (lung disease) six years after discontinuing work in coal mine was not precluded from recovery, where evidence established he gave notice of the disease within 30 days after he knew of it and instituted suit within one year, as required by statutes of Tennessee. Tinker v. Bessemer Coal, Iron & Land Co., 227 F. Supp. 710, 1964 U.S. Dist. LEXIS 8232 (E.D. Tenn. 1964).

Whether or not an employee had knowledge that he had an occupational disease is a fact question. Christopher v. Consolidation Coal Co., 222 Tenn. 727, 440 S.W.2d 281, 1969 Tenn. LEXIS 474 (1969).

Running of time for giving of notice of occupational disease should be postponed until there is an actual disability and a reasonably sufficient opportunity to discover the disease and its relationship to the employment. Christopher v. Consolidation Coal Co., 222 Tenn. 727, 440 S.W.2d 281, 1969 Tenn. LEXIS 474 (1969).

Running of the time for giving notice commences when the employee has knowledge, actual or constructive, that he has an occupational disease which injuriously affects his capacity to work to a degree amounting to a compensable disability. Consolidation Coal Co. v. Pride, 224 Tenn. 188, 452 S.W.2d 349, 1970 Tenn. LEXIS 313 (1970).

4. “First Distinct Manifestation.”

The “first distinct manifestation” of lead poisoning occurred when the symptoms had reached the point where doubt was so far removed as to enable a physician to diagnose the trouble as lead poisoning. It clearly was not a distinct manifestation of lead poisoning prior to the time that it could be so diagnosed. Greener v. E. I. Du Pont De Nemours & Co., 188 Tenn. 303, 219 S.W.2d 185, 1949 Tenn. LEXIS 342 (1949).

Petitioner treated by physician for pneumoconiosis from the fall of 1949 until September of 1952 when X-ray report revealed that he had silicosis, and who filed suit 16 days later for compensation for occupational disease of silicosis after giving written notice complied with 30-day provision, since there was no “distinct manifestation” of silicosis until it was revealed by X-ray report. Wilson v. Van Buren County, 196 Tenn. 487, 268 S.W.2d 363, 1954 Tenn. LEXIS 411 (1954).

The disability must reach a point where doctor would diagnose it as an occupational disease before the requirement of notice applies. Christopher v. Consolidation Coal Co., 222 Tenn. 727, 440 S.W.2d 281, 1969 Tenn. LEXIS 474 (1969).

5. Employee Excused from Notice Requirement.

Where employer's doctor knew of existence of occupational disease and concealed it from employee, employee was excused from giving written notice of disease. Whitehead v. Holston Defense Corp., 205 Tenn. 326, 326 S.W.2d 482, 1959 Tenn. LEXIS 368 (1959).

Notice is dispensed with in the case of coal worker's pneumoconiosis where claim is for total disability. Hill v. Four-Leaf Coal Co., 529 S.W.2d 225, 1975 Tenn. LEXIS 581 (Tenn. 1975).

6. Burden of Proof.

It is not required that a petition or complaint seeking workers' compensation benefits must affirmatively allege that the statutory notice was given, nor that a reason for not giving it be stated, because failure to give the required notice is a matter of defense; but when failure to give notice is pleaded, the burden is on the claimant to prove it was given, or why it was not. Aetna Casualty & Surety Co. v. Long, 569 S.W.2d 444, 1978 Tenn. LEXIS 622 (Tenn. 1978).

Collateral References.

Requirement of Workmen's Compensation Act, as to notice of accident or injury. 78 A.L.R. 1232, 92 A.L.R. 505, 107 A.L.R. 816, 145 A.L.R. 1263.

50-6-306. Statute of limitations.

  1. The right to compensation for an occupational disease or a claim for death benefits as a result of an occupational disease shall be forever barred, unless a claim is initiated pursuant to § 50-6-203; provided, however, that the applicable time limitation period or periods shall commence as of the date of the beginning of the incapacity for work resulting from an occupational disease or upon the date death results from the occupational disease; provided, further, that if upon the date of the death of the employee the employee's claim has become barred, the claim of the employee's dependent or dependents shall likewise be barred, and in that case the claim shall be barred whether or not the employer gives the notice required by § 50-6-224(2) [Applicable only to injuries occurring prior to July 1, 2014. See the Compiler's Notes.].
  2. A claim for benefits or death due to coal worker's pneumoconiosis shall be timely filed if the claim is instituted pursuant to § 50-6-203 within three (3) years of the discovery of total disability or the date of death, as the case may be.

Acts 1947, ch. 139, § 1; C. Supp. 1950, § 6852; Acts 1971, ch. 300, § 7; T.C.A. (orig. ed.), § 50-1108; Acts 2004, ch. 962, § 21.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during such fifteen (15) month period, adjustments to the policy may be made at such time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2004, ch. 962, § 51 provided in part, that § 21 shall apply to accidents or injuries occurring on or after January 1, 2005.

Acts 2013, ch. 289, § 59, effective July 1, 2014, amends § 50-6-224, referred to in this section, by deleting it in its entirety. However, pursuant to § 50-6-101, as amended by Acts 2013, ch. 289, § 3, effective July 1, 2014, all claims having a date of injury prior to July 1, 2014, shall be governed by prior law. Thus, § 50-6-224 remains in effect as to injuries occurring prior to July 1, 2014.

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 25.

Law Reviews.

Workmen's Compensation for Radiation Injuries in Tennessee (E. Blythe Stason), 19 Vand. L. Rev. 571 (1966).

NOTES TO DECISIONS

1. Voluntary Payment as Tolling Statute.

Under the proviso of § 50-6-203, voluntary payment of compensation for disability arising from occupational disease tolled the running of the statute of limitations until one year after the last payment was made. Holeproof Hosiery Co. v. Wilkins, 194 Tenn. 683, 254 S.W.2d 973, 1953 Tenn. LEXIS 290 (1953).

2. Time from Which Statute Commences to Run.

The statute of limitations in occupational disease cases commences to run when the accumulated effects of the latent disease culminate in a disability which is traceable to such disease as the primary cause and which is apparent to the employee or could have been discovered by the exercise of reasonable care and diligence. Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 315 S.W.2d 245, 1958 Tenn. LEXIS 230 (1958).

An employee is not required to institute suit until he has reliable information that his condition is the result of an occupational disease. Whitehead v. Holston Defense Corp., 205 Tenn. 326, 326 S.W.2d 482, 1959 Tenn. LEXIS 368 (1959).

Statute of limitations in compensation claim for dermatitis did not run from date which employee observed a rash on his hands but from the date that physician advised employee that the rash was dermatitis. Charnes v. Burk, 205 Tenn. 371, 326 S.W.2d 657, 1959 Tenn. LEXIS 373 (1959).

Where there was nothing to show that petitioner knew that two previous illnesses resulted from occupation, especially when neither the physicians nor the employer could determine with certainty at such time when petitioner was collecting benefits under group disability policy whether or not disability was covered by workers' compensation, action was not barred by statute of limitations when action was brought at time of last illness. American Bridge Div. U. S. Steel Corp. v. McClung, 206 Tenn. 317, 333 S.W.2d 557, 1960 Tenn. LEXIS 367 (1960), overruled, Brooks v. Gilman Paint Co., 208 Tenn. 595, 347 S.W.2d 665, 1961 Tenn. LEXIS 324 (1961).

Where claimant was temporarily disabled with tenosynovitis in May 1955 and again in November 1957 but permanent disability did not begin to develop until April or May 1958 and grew steadily worse until she was discharged in August 1958, suit brought in October 1958 was not barred by statute of limitations. Tennessee Tufting Co. v. Potter, 206 Tenn. 620, 336 S.W.2d 539, 1960 Tenn. LEXIS 410 (1960), rehearing denied, 206 Tenn. 620, 337 S.W.2d 601, 1960 Tenn. LEXIS 423 (1960).

Where employee did not know that he was actually suffering from contact dermatitis until it was so diagnosed, statute of limitations did not commence to run until his condition was diagnosed. Duplan Corp. v. Wilson, 210 Tenn. 315, 358 S.W.2d 322, 1962 Tenn. LEXIS 440 (1962).

Claimant in workers' compensation case who first claimed compensation for anthracosis (lung disease) six years after discontinuing work in coal mine was not precluded from recovery, where evidence established he gave notice of the disease within 30 days after he knew of it and instituted suit within one year, as required by statutes of Tennessee code. Tinker v. Bessemer Coal, Iron & Land Co., 227 F. Supp. 710, 1964 U.S. Dist. LEXIS 8232 (E.D. Tenn. 1964).

Action for workers' compensation benefits due to alleged occupational disease contracted during employment was properly barred where material evidence in the record supported finding that petitioner knew, or by exercise of reasonable caution should have known, that he had silicosis, which had injuriously affected his capacity to work to degree amounting to compensable disability for more than one year prior to the filing of his petition. Jones v. Lenoir City Car Works, 216 Tenn. 351, 392 S.W.2d 671, 1965 Tenn. LEXIS 582 (1965).

When claimant commenced suit within one year after he had been advised by doctor that he had silicosis, which was first knowledge that he had disease although he had previously suffered from shortness of breath, his right to compensation was not barred. Wormsley v. Consolidation Coal Co., 278 F. Supp. 698, 1967 U.S. Dist. LEXIS 7806 (E.D. Tenn. 1967), aff'd, 408 F.2d 79, 1969 U.S. App. LEXIS 13447 (6th Cir. Tenn. 1969).

Before the statute of limitation commences to run in occupational disease cases there must be an incapacity for work and actual or constructive knowledge that an occupational disease is the cause of the incapacity for work, and in relating the incapacity for work to the disease the employee is required to exercise reasonable care and diligence with failure to do so amounting to constructive notice. Tennessee Products & Chemical Corp. v. Reeves, 220 Tenn. 148, 415 S.W.2d 118, 1967 Tenn. LEXIS 396 (1967); A. C. Lawrence Leather Co. v. Britt, 220 Tenn. 444, 414 S.W.2d 830, 1967 Tenn. LEXIS 425 (1967), rehearing denied, 220 Tenn. 457, 418 S.W.2d 660, 1967 Tenn. LEXIS 426 (1967); Consolidation Coal Co. v. Brown, 225 Tenn. 572, 474 S.W.2d 416, 1971 Tenn. LEXIS 327 (1971).

The claim of a coal miner who contracted a coal dust disease in December, 1963, but continued to work until September, 1967, was not barred by this section because of not being filed until March 14, 1968, as his claim did not accrue until the disease affected his capacity to work to a compensable extent. Bray v. Consolidation Coal Co., 286 F. Supp. 1019, 1968 U.S. Dist. LEXIS 10014 (E.D. Tenn. 1968), aff'd, 416 F.2d 1, 1969 U.S. App. LEXIS 10777 (6th Cir. Tenn. 1969).

Even though plaintiff had been informed more than one year prior to bringing suit that he had silicosis, where he was told that he could return to work the only limitation being that he return for another examination in one year, suit brought within one year after time he was hospitalized was brought within the limitation period. Lively v. Consolidation Coal Co., 406 F.2d 523, 1969 U.S. App. LEXIS 9053 (6th Cir. Tenn. 1969).

Before the period of limitations contained in this section begins to run, the claimant must have actual or constructive knowledge of his occupational disease. Wormsley v. Consolidation Coal Co., 408 F.2d 79, 1969 U.S. App. LEXIS 13447 (6th Cir. Tenn. 1969).

Whether or not an employee had knowledge that he had an occupational disease is a fact question. Christopher v. Consolidation Coal Co., 222 Tenn. 727, 440 S.W.2d 281, 1969 Tenn. LEXIS 474 (1969).

Before the statute commences to run there must be knowledge on the part of the employee or knowledge that he should have had that he has an occupational disease and that it has affected his capacity to work. Christopher v. Consolidation Coal Co., 222 Tenn. 727, 440 S.W.2d 281, 1969 Tenn. LEXIS 474 (1969); Brown v. Consolidation Coal Co., 224 Tenn. 144, 451 S.W.2d 684, 1970 Tenn. LEXIS 307 (1970); Consolidation Coal Co. v. Pride, 224 Tenn. 188, 452 S.W.2d 349, 1970 Tenn. LEXIS 313 (1970).

In relating the incapacity to work to the occupational disease, an employee is required to exercise reasonable care and diligence and if he does not do so he can be charged with constructive notice. Christopher v. Consolidation Coal Co., 222 Tenn. 727, 440 S.W.2d 281, 1969 Tenn. LEXIS 474 (1969).

Where rock quarry worker was granted disability retirement on basis of hypertension and arthritis and at time of retirement had been advised that his difficulty in breathing was due to bronchitis, and where there was no evidence that at that time he knew he was suffering from an occupational disease, period of limitation on claim for compensation for silicosis did not commence to run until he was finally so diagnosed and advised. Cash v. Ideal Cement Co., 524 S.W.2d 644, 1975 Tenn. LEXIS 671 (Tenn. 1975).

Where employee quit his job in 1969, but his cause of action was not complete until 1972 when pneumoconiosis was detected (or should have been detected), the applicable statute of limitations was the one in effect in 1972 and not the statute in effect in 1969. Bituminous Casualty Corp. v. Lewis, 538 S.W.2d 604, 1976 Tenn. LEXIS 494 (Tenn. 1976).

The statute of limitations in T.C.A. § 50-6-306 does not begin to run until the employee knows, or should know in the exercise of reasonable caution, that he has an occupational disease, and that it has injuriously affected his capacity to work to a degree amounting to a compensable disability. Smith v. Asarco, Inc., 627 S.W.2d 946, 1982 Tenn. LEXIS 385 (Tenn. 1982).

3. —“Beginning of the Incapacity.”

The term “beginning of the incapacity,” as used in this section, carries the same meaning as the term “the happening of the injury,” as used in § 50-6-303. Adams v. American Zinc Co., 205 Tenn. 189, 326 S.W.2d 425, 1959 Tenn. LEXIS 353 (1959); Tennessee Products & Chemical Corp. v. Reeves, 220 Tenn. 148, 415 S.W.2d 118, 1967 Tenn. LEXIS 396 (1967); Christopher v. Consolidation Coal Co., 222 Tenn. 727, 440 S.W.2d 281, 1969 Tenn. LEXIS 474 (1969).

The “beginning of the incapacity” under this section is when such occupational disease, with the knowledge of the employee (or knowledge that he should have had in the exercise of reasonable caution) that he has an occupational disease, and that it has injuriously affected his capacity to work to a degree amounting to a compensable disability. Adams v. American Zinc Co., 205 Tenn. 189, 326 S.W.2d 425, 1959 Tenn. LEXIS 353 (1959).

Because the employee filed suit within one year of becoming incapacitated from working, her claim for benefits was timely, and the trial court's judgment was reversed. Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 2007 Tenn. LEXIS 741 (Tenn. Aug. 30, 2007).

4. —Knowledge of Condition.

Worker, who had symptoms of disability in 1963 after having ceased work as a miner in 1960, who became aware of his disability in 1963 and thereafter applied for disability benefits to the veterans' administration and the social security administration but did not discover until 1965 that he had silicosis, although he exercised reasonable care by going to a competent physician, was not guilty of lack of diligence in discovering his condition and his claim was not barred where suit was filed within one year after discovering the nature of his disability. Tennessee Products & Chemical Corp. v. Reeves, 220 Tenn. 148, 415 S.W.2d 118, 1967 Tenn. LEXIS 396 (1967).

5. Old Injury Barred.

Employee's right to compensation for dermatitis was not barred by limitations where his petition for compensation was filed within one year after incapacity for work, despite the fact that he had an old injury which was barred by limitations as well as a circulatory ailment making him more susceptible to dermatitis. Underwood v. Combustion Engineering, Inc., 201 Tenn. 519, 300 S.W.2d 901, 1957 Tenn. LEXIS 331 (1957).

Collateral References.

Computation of period for filing death claim under compensation statutes. 119 A.L.R. 1158.

Date of accident or date when injury becomes manifest as time from which period for filing claim commences to run. 108 A.L.R. 316.

Occupational or industrial disease, when prescriptive period beings to run. 86 A.L.R. 572.

Requirements as to time of notice. 78 A.L.R. 1239, 92 A.L.R. 505, 107 A.L.R. 816, 145 A.L.R. 1263.

War as suspending time for notice or filing of claim under Workmen's Compensation Act. 137 A.L.R. 1465, 140 A.L.R. 1518, 141 A.L.R. 1511.

When limitations period begins to run as to claim for disability benefits for contracting of disease under workers' compensation or occupational diseases act. 86 A.L.R.5th 295.

50-6-307. Waiver of compensation for aggravation of condition.

    1. When an employee, or prospective employee, though not incapacitated for work, is found to be affected by or susceptible to a specific occupational disease, the employee or prospective employee may, subject to the approval of the workers' compensation bureau of the department of labor and workforce development, be permitted to waive in writing compensation for any aggravation of the employee's or prospective employee's condition that may result from the employee's or prospective employee's working or continuing to work in the same or similar occupation for the same employer or for another employer; provided, that this provision shall not apply to specific occupational diseases on which waivers are prohibited by the federal Coal Mine Health and Safety Act of 1969, compiled in 30 U.S.C. § 901 et seq.
    2. All provisions of this chapter, with respect to accidents shall be applicable to the coverage provided in this part for occupational diseases, except as otherwise provided in this part.
  1. When an employee or prospective employee has a prior history of heart disease, heart attack or coronary failure or occlusion, the employee or prospective employee may be permitted to waive in writing compensation from the employee's or prospective employee's employer or future employer for claims growing out of an aggravation or repetition of the condition, the waiver to be evidenced by filing with the administrator a written instrument to which shall be attached a copy of a medical statement giving the prior history of the condition, and in all those cases claims for workers' compensation benefits growing out of an aggravation or repetition of the condition by the employee or the employee's dependents shall be barred.
  2. No employer shall require the execution of a waiver by any employee who was at work on March 17, 1961, unless the employee subsequently suffers a heart condition.

Acts 1947, ch. 139, § 1; C. Supp. 1950, § 6852; Acts 1961, ch. 339, § 1; 1972, ch. 699, § 7; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1109; Acts 1999, ch. 520, § 41; 2015, ch. 341, § 15.

Compiler's Notes. The federal Coal Mine Health and Safety Act of 1969, referred to in this section, is now cited as the Black Lung Benefits Act.

Amendments. The 2015 amendment substituted “bureau” for “division” in (a)(1).

Effective Dates. Acts 2015, ch. 341, § 19. May 4, 2015.

Cross-References. Inapplicability to claims filed against state, § 9-8-307.

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 19.

Law Reviews.

Workers' Compensation Outline (Paul Campbell III), 18 No. 3 Tenn. B.J. 11 (1982).

NOTES TO DECISIONS

1. Waiver as to Heart Condition.

Employee could not defeat application of provisions of statute permitting waiver of claims arising out of recurrence of heart condition by statement to effect that he did not fully understand what he signed. Modern Upholstered Chair Co. v. Henry, 213 Tenn. 475, 376 S.W.2d 441, 1964 Tenn. LEXIS 415 (1964).

The purpose of the 1961 amendment was to enable employees with a history of heart trouble to be employed when otherwise industry would not put them to work because of the potential claim of further disability from a recurrence of the heart trouble. Modern Upholstered Chair Co. v. Henry, 213 Tenn. 475, 376 S.W.2d 441, 1964 Tenn. LEXIS 415 (1964).

The reason for the requirement that a medical report accompany the notice of waiver by employee with history of heart trouble is to prevent the employer from taking such a waiver from an employee who in fact does not come within the provisions of the statute. Modern Upholstered Chair Co. v. Henry, 213 Tenn. 475, 376 S.W.2d 441, 1964 Tenn. LEXIS 415 (1964).

Trial court properly allowed amendment of employer's answer at beginning of trial setting up defense of waiver by employee of claims arising out of recurrence of heart condition. Modern Upholstered Chair Co. v. Henry, 213 Tenn. 475, 376 S.W.2d 441, 1964 Tenn. LEXIS 415 (1964).

2. Requirements for Waiver Not Shown.

Trial court erred in granting the employer's motion for summary judgment as the claimant's 2011 asbestosis-related lung disease claim was not barred by res judicata because there was no mention of asbestos or asbestos-related disease in the 2003 complaint or the 2005 order; the evidence provided by the employer did not show with certainty that the existence or cause of asbestos-related disease was at issue in the prior lawsuit; an agreement to prospectively extinguish or reduce the employer's obligations under the Workers'  Compensation Law violated public policy and was unenforceable; and there was no proof of compliance with the requirement for waiver of compensation for any aggravation of the claimant's lung condition by his work. Segroves v. Union Carbide, — S.W.3d —, 2015 Tenn. LEXIS 945 (Tenn. Dec. 10, 2015), aff'd, — S.W.3d —, 2015 Tenn. LEXIS 946 (Tenn. Dec. 10, 2015).

Part 4
Insurance

50-6-401. Authority to write insurance — Tax.

      1. Every person, partnership, association, organization or corporation, whether organized under the laws of this or any other state or country, that has or may hereafter comply with the laws of this state and is authorized to write accident or indemnity insurance in this state shall be authorized and empowered to write workers' compensation insurance under the terms and provisions of this part, and likewise every reciprocal and mutual insurance association or corporation shall have the same privileges; provided, that any such entity offering workers' compensation insurance shall be required to offer medical benefits coverage for paid-on-call and volunteer firefighters.
      2. For purposes of this subdivision (a)(1), “volunteer firefighter” means any member or personnel of a fire department, volunteer fire department, rescue squad or volunteer rescue squad, including, but not limited to, a junior member, a board member or an auxiliary member of the department or squad.
    1. An entity offering workers' compensation insurance shall offer coverage for members of rescue squads on similar terms and conditions as coverage available to full-time paid firefighters or emergency medical services personnel.
    1. All insurance carriers provided for by this section shall be subject to a tax of four percent (4%) on premiums collected for workers' compensation insurance, and a surcharge of four tenths of one percent (0.4%) of the premiums, the surcharge to be earmarked for the administration of the Tennessee Occupational Safety and Health Act, compiled in chapter 3 of this title, and this shall be in lieu of any other tax on premiums for the writing of the business of workers' compensation insurance now provided for by law.
    2. The surcharge of four tenths of one percent (0.4%) on the tax on workers' compensation insurance premiums levied by this section shall not apply to any employer who employs ten (10) or fewer employees unless the employer is in the business of construction or manufacturing.
  1. Of the funds collected pursuant to subsection (b), a sum sufficient 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 this section, and shall be paid into the subsequent injury and vocational recovery fund created in § 50-6-208, to provide payments for the benefits provided in § 50-6-208.

Acts 1919, ch. 123, § 40; 1923, ch. 84, § 4; Shan. Supp., § 3608a190; Code 1932, § 6894; C. Supp. 1950, § 6894; impl. am. Acts 1980, ch. 534, § 1; Acts 1981, ch. 396, §§ 3, 4; T.C.A. (orig. ed.), § 50-1201; Acts 1985, ch. 393, § 17; 1988, ch. 707, §§ 1, 2; 1995, ch. 449, § 1; 1997, ch. 533, § 51; 2013, ch. 210, § 1; 2017, ch. 344, § 1.

Code Commission Notes.

Former subsection (d), concerning the transfer of funds earmarked for the administration of the Tennessee Occupational Safety and Health Act to the general fund, was deleted as obsolete by the code commission in 2005.

Amendments. The 2017 amendment substituted “subsequent injury and vocational recovery fund” for “second injury fund” near the end of (c).

Effective Dates. Acts 2017, ch. 344, § 12. May 9, 2017.

Cross-References. Business corporations, service on corporation, § 48-15-104.

Inapplicability of part to claims filed against state, § 9-8-307.

Premium tax on insurers, § 56-4-206.

Law Reviews.

The Exclusiveness of an Employee's Workers' Compensation Remedy Against His Employer (Joseph H. King, Jr.), 55 Tenn. L. Rev. 405 (1988).

Attorney General Opinions. Applicability to county-sponsored community programs' volunteers, OAG 90-45 (3/28/90).

NOTES TO DECISIONS

1. Constitutionality.

Constitutional prohibition against act containing two subjects is not contravened because both the compensation act and its title provided a system of workers' compensation and also a system of liability or accident insurance. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

2. Funding of Second Injury Fund.

Statutes providing for funding of the second injury fund did not guarantee to eligible claimants that the fund would not be underfunded. Brock v. McWherter, 94 F.3d 242, 1996 FED App. 286P, 1996 U.S. App. LEXIS 22386 (6th Cir. Tenn. 1996).

3. Employer Operation under Statutes of Two States — Contribution between Insurers.

Although an Illinois resident who was employed by an Illinois corporation which had qualified under the workers' compensation statutes of both Tennessee and Illinois and who was injured while working in Tennessee could have recovered under the statutes of either state, the insurance carrier who paid an award made under the Illinois statute was not entitled to contribution from the company insuring claims under the Tennessee statute, as the obligations of the two insurers were essentially different due to diverse provisions of the statutes of the two states and the parties were not in aequali jure. United States Casualty Co. v. Standard Acc. Ins. Co., 175 Tenn. 559, 136 S.W.2d 504, 1939 Tenn. LEXIS 75, 126 A.L.R. 876 (1940).

4. Group Insurance Not Intended as Compensation Insurance — Suit against Insurer.

Where an insurance company issued to a coal mining company a policy designated as an “employer's group liability policy,” insuring the mining company against accidental bodily injuries suffered by its employees, which contract did not comply, and was not intended to comply, with the requirements of the Workers' Compensation Law, and on injury of an employee of the insured the insurer paid the amount due under the policy to the insured, which converted the money to its own use, the insurer could not be held liable to the employee for the amount due under the act. McKinney v. Fidelity Coal Mining Co., 169 Tenn. 331, 87 S.W.2d 1004, 1935 Tenn. LEXIS 49 (1935).

5. Injuries Covered.

Workers' compensation insurer takes employee as he finds him and is liable for disability resulting from injury sustained by employee arising out of his employment even though it aggravates a previous condition existing at the time the insurer commenced coverage and results in disability greater than otherwise would have been the case. Newport v. Webb, 223 Tenn. 445, 446 S.W.2d 683, 1969 Tenn. LEXIS 430 (1969).

50-6-402. Classification of risks and premiums — Filing — Approval.

  1. In determining classifications of risks and premiums relating to the classification, the insurer may include allowances of any character made to any employee, only when the allowances are in lieu of wages, and are specified as part of the wage contract.
  2. Before approving any workers' compensation loss cost filing made by the designated rate service organization pursuant to this part or title 56, the commissioner of commerce and insurance shall consult with the advisory council on workers' compensation concerning the filing. The council shall have sixty (60) days to provide written comment on the filing. The council shall meet to provide the comment. The commissioner of commerce and insurance shall approve, disapprove or modify the filing within ninety (90) days of receiving the filing. If the commissioner of commerce and insurance modifies the filing, the modification shall be within the range established by the recommendation of the rate service organization in its filing and the recommendation of the advisory council on workers' compensation. In instances when the commissioner of commerce and insurance modifies the filing, the rate service organization shall develop a plan that reflects the commissioner's modification, unless the organization appeals the modification pursuant to § 56-5-308. The commissioner shall report the action taken on the filing to the commerce and labor committee of the senate, and the consumer and human resources committee of the house of representatives and to the speakers of the senate and the house of representatives.
  3. Prior to the commissioner of commerce and insurance establishing the multiplier to be applied to the assigned risk plan, as provided in § 56-5-114(c), the commissioner shall provide notice of the intended action, including supporting rationale for the action, to the advisory council on workers' compensation. The council may, within fifteen (15) days of receipt of the notice, provide written comment and recommendation to the commissioner related to the intended action. After the fifteen-day period has expired, the commissioner shall establish the multiplier, by order, as provided in § 56-5-114(c).
  4. The commissioner of commerce and insurance shall report quarterly to the advisory council on workers' compensation concerning all workers' compensation filings made by the designated rate service organization received by the department of commerce and insurance that were not referred to the council as set out in subsection (b) since the last report.

Acts 1919, ch. 123, § 40; 1923, ch. 84, § 4; Shan. Supp., § 3608a190; Code 1932, § 6894; C. Supp. 1950, § 6894; impl. am. Acts 1971, ch. 137, § 2; Acts 1972, ch. 456, § 1; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1202; Acts 1996, ch. 944, §§ 32, 33; 1998, ch. 1024, § 15; 2001, ch. 192, § 2; 2003, ch. 359, §§ 5, 6; 2011, ch. 410, § 10(d); 2013, ch. 236, § 31.

Compiler's Notes. Acts 1996, ch. 944, § 43(a), as amended by Acts 2001, ch. 192, § 2(a), provided that §§ 31-42 of the act are repealed, effective July 1, 2007, and that the affected sections of titles 50 and 56 shall be revived and reenacted in their prior versions on that date. Acts 2007, ch. 359, §§ 1 and 2 provided that the provisions of Acts 1996, ch. 944, § 43(a) and Acts 2001, ch. 192, § 2(a) are deleted effective June 5, 2007.

Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Section 56-5-314 referenced in (c) was renumbered as 56-5-114 by the authority of the code commission in 2016.

Cross-References. Tax on self-insurers, § 56-4-207.

50-6-403. [Repealed.]

Compiler's Notes. Former § 50-6-403 (Acts 1919, ch. 123, § 40; 1923, ch. 84, § 4; Shan. Supp., § 3608a190; Code 1932, § 6894; C. Supp. 1950, § 6894; T.C.A. (orig. ed.), § 50-1203), concerning annual statements and reports, was repealed by Acts 1983, ch. 66, § 21. For present provisions, see §§ 56-5-106 and 56-5-113.

50-6-404. Bond or certificate.

    1. Every insurance company doing a workers' compensation business in this state shall furnish a bond running to the state in the sum of fifty thousand dollars ($50,000) with some surety company authorized to transact business in this state as surety, in the form approved by the commissioner of commerce and insurance, conditioned for the payment of compensation losses on policies issued by the company upon risks located in the state.
    2. Suit may be brought upon the bond by the bureau of workers' compensation for the use and benefit of any party or parties at interest.
    3. The annual license of the company shall not be issued or renewed until it has filed with the commissioner of commerce and insurance a bond as required in subdivision (a)(1).
    4. In lieu of the bond, a deposit of the same amount may be made with the state treasurer in the form of other security satisfactory to the commissioner of commerce and insurance.
  1. The commissioner may, in the commissioner's discretion, accept, in lieu of the bond required in subdivision (a)(1), a certificate from the commissioner of insurance or other corresponding official of the state in which the insurance company is organized and domiciled, that the company has on deposit in such state the sum of not less than one hundred thousand dollars ($100,000) in cash, or its equivalent, which deposit is for the protection of all of its policyholders, ratably.

Acts 1933, ch. 158, § 1; C. Supp. 1950, § 6894; impl. am. Acts 1971, ch. 137, § 2; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1204; 2015, ch. 341, § 15.

Compiler's Notes. The provisions of the former first sentence of this section were transferred to and incorporated into § 50-6-408.

Amendments. The 2015 amendment substituted “bureau” for “division” in (a)(2).

Effective Dates. Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-405. Compensation insurance or proof of financial ability required — Self insurers — Payment of premiums — Excess catastrophe reinsurance coverage — Authority and duty of administrator.

  1. Every employer under and affected by this chapter, shall:
    1. Insure and keep insured the employer's liability under this chapter in some person or persons, association, organization or corporation authorized to transact the business of workers' compensation insurance in this state; or
    2. Possess a valid certificate of authority from the commissioner of commerce and insurance by furnishing satisfactory proof of the employer's financial ability to pay all claims that may arise against the employer under this chapter and guarantee the payment of the claims in the amount and manner and when due as provided for in this chapter.
    1. If the employer elects to proceed under subdivision (a)(2), the commissioner of commerce and insurance shall require the applicant to pay a nonrefundable application fee of five hundred dollars ($500) or in an amount the commissioner shall promulgate by rule.
    2. The commissioner of commerce and insurance shall require the applicant to file and maintain with the department of commerce and insurance the following:
        1. Security, in an amount to be determined by the commissioner of commerce and insurance, but not less than five hundred thousand dollars ($500,000), in any of the following forms, as specified herein: negotiable securities; a surety bond; a certificate of deposit; or a letter of credit;
        2. The security, or a contract between the self-insured employer, a depository institution and the commissioner of commerce and insurance evidencing the security held in the depository institution for purposes of compliance with this section, shall be held by the commissioner of commerce and insurance and shall be conditioned to run solely and directly for the benefit of the employees of the self-insured employer. Any legal actions to enforce the payment of the security being held for purposes of compliance with this section shall be brought by the commissioner of commerce and insurance for the benefit of the employees of the self-insured employer;
        3. The security held pursuant to this section may be used for the payment of any and all fees or costs required to administer the disbursement of the proceeds to or for the benefit of the employees;
        4. The venue for any suit filed by the commissioner of commerce and insurance under this provision shall be in Davidson County.
        5. (a)  Any security held for purposes of compliance with this section shall be held for a minimum of ten (10) years after the self-insured employer is no longer self-insured and the self-insured employer shall maintain the fair market value of security on deposit at not less than five hundred thousand dollars ($500,000), unless otherwise approved by the commissioner of commerce and insurance or the commissioner's designee;
          1. (v)  (a)  Any security held for purposes of compliance with this section shall be held for a minimum of ten (10) years after the self-insured employer is no longer self-insured and the self-insured employer shall maintain the fair market value of security on deposit at not less than five hundred thousand dollars ($500,000), unless otherwise approved by the commissioner of commerce and insurance or the commissioner's designee;
          2. Any employer that is no longer self-insured pursuant to this section as of December 31, 2004, shall not be subject to subdivision (b)(2)(A)(v)(a ).
        6. All security, and contracts evidencing the security, filed with the commissioner of commerce and insurance shall be in a form substantively that has been previously approved by the commissioner of commerce and insurance. Any security that fails to meet any requirement under this section shall not be considered for purposes of determining a self-insurer's compliance with any of the security maintenance requirements of this section;
        7. As used in this subdivision (b)(2)(A), “qualified United States financial institution” shall have the meaning assigned by § 56-2-209(a);
        8. The commissioner of commerce and insurance may by rule establish requirements for securities posted pursuant to this subsection (b). These rules may also prescribe the various types and classes of securities that the commissioner of commerce and insurance will accept under this subsection (b);
        1. Evidence of the employer's financial ability to pay all claims that may arise against the employer in the form of an annual certified financial statement, including a statement of assets and liabilities and a statement of profit and loss, to be filed no later than the last day of the sixth month after the end of the employer's immediately preceding fiscal year;
        2. The financial statement is to include a detailed accounting for reserves for losses outstanding incurred in connection with workers' compensation self-insurance. The employer's losses and adequacy of reserves shall be certified annually by an actuary qualified under rules established by the commissioner of commerce and insurance for the filing of statements by insurance companies.
    3. Filings pursuant to this subsection (b) shall be kept confidential by the commissioner of commerce and insurance and shall not be construed to be a public record pursuant to title 10, chapter 7.
    4. The commissioner of commerce and insurance may assess a civil penalty of one hundred dollars ($100) per day for each day any self-insured employer has failed to comply with any financial record filing requirement. The civil penalty assessed under this subdivision (b)(4) shall be cumulative and in addition to any other civil penalty or remedy available to the commissioner. No civil penalty shall be assessed against any political subdivision of the state.
    5. The commissioner of commerce and insurance shall take into account all available information when making the determination as to both the adequacy of all security deposits, letters of credit, negotiable securities or bonds held by the commissioner and whether an employer has the ability to pay all claims that may arise.
    6. No employer shall self-insure its workers' compensation liabilities without a certificate of authority issued by the commissioner of commerce and insurance. It shall be unlawful for any employer to self-insure its liabilities for workers' compensation without first obtaining a duly issued certificate of authority from the commissioner of commerce and insurance. Whenever an employer has complied with subdivisions (a)(2) and (b)(2)(A) and (B), the commissioner of commerce and insurance, or the commissioner's designee, may issue to the employer a certificate of authority allowing the employer to self-insure under this section. Notice of this authorization shall be sent to the administrator of the bureau of workers' compensation.
    7. Upon failure by an authorized self-insured employer to furnish the commissioner of commerce and insurance the requirements delineated in subdivisions (a)(2) and (b)(2)(A) and (B), the commissioner may, after giving written notice and an opportunity for a hearing to the affected party or parties within thirty (30) days, suspend or revoke the certificate authorizing the employer to self-insure granted under this section. The commissioner may, without prior notice and if it appears in the commissioner's discretion that the continuation of the certificate would be clearly hazardous to the employees of the self-insurer or to the public generally, summarily suspend an authorized self-insurer's certificate before a hearing is commenced and in that event shall immediately notify the self-insurer, and the notice shall include a statement to the effect that the commissioner's action is subject to review. All hearings conducted under this section shall comply with the contested case provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
    8. Any hearing under this section shall be requested in writing by the self-insured employer within fifteen (15) days of receiving written notification from the commissioner of commerce and insurance or the commissioner's designee. In any proceeding in which the self-insured employer's certificate of authority is suspended or revoked, the self-insured employer shall pay all costs associated with the proceeding. The commissioner may serve a notice, order, petition or complaint in any action arising under this section by certified mail to the self-insured employer at the address of record in the files of the department. Notwithstanding any law to the contrary, service in the manner set forth in this subdivision (b)(8), shall be deemed to constitute actual service on the self-insured employer.
    9. The commissioner of commerce and insurance or the commissioner's designee shall immediately notify the administrator of the bureau of workers' compensation of any decision to suspend or revoke a certificate authorizing an employer to self-insure.
    10. The commissioner of commerce and insurance or the commissioner's designee has the authority to examine and investigate any self-insured employer whenever the commissioner deems it prudent to do so. The purposes and scope of the examinations and the commissioner's powers shall be set forth in title 56, chapter 1, part 4, pertaining to examinations of insurance companies.
    11. The commissioner of commerce and insurance may promulgate rules and regulations, including emergency rules and regulations, necessary for the administration of this section and shall conduct all rulemaking in accordance with the Uniform Administrative Procedures Act.
    1. With the permission of a trade or professional association board of directors, ten (10) or more employers of the same group may enter into agreements to pool their liabilities under this chapter for the purpose of qualifying as self-insurers. The trade or professional association shall have been in active existence in Tennessee for at least five (5) years and the association shall:
      1. Have a constitution or bylaws;
      2. Have members that support the association by regular payment of dues on an annual, semiannual, quarterly or monthly basis; and
      3. Be created in good faith for purposes other than that of creating workers' compensation self-insurer pools. The commissioner of commerce and insurance has the authority to promulgate rules and regulations deemed necessary to provide for the solvency, administration and enforcement of the pooling agreements. To the extent deemed necessary by the commissioner of commerce and insurance, each employer member of the approved group shall be classified as a self-insurer as otherwise provided in this chapter.
    2. Notwithstanding any other law or rule to the contrary, funds not needed for current obligations may be invested by the board of trustees in Tennessee securities as defined in § 56-4-210(a). The board of trustees of each workers' compensation pool shall adopt an investment policy. The policy shall address credit, quality of investments, maximum maturity of investments and other matters the board deems appropriate. Real estate investments must be undertaken with the approval of the commissioner of commerce and insurance.
      1. Each group of employers qualifying as self-insurers pursuant to this subsection (c) shall submit to the commissioner of commerce and insurance a statement of financial condition audited by an independent certified public accountant on or before the last day of the sixth month following the end of the group's fiscal year. A thirty-day extension of the financial statement filing requirement shall be granted by the commissioner upon receipt of a request, via certified mail, by a group. The request shall be submitted to the commissioner not less than thirty (30) days prior to the date the financial statement is due to be filed.
      2. Notwithstanding subdivision (c)(3)(A), a qualified self-insured trust that has entered into a self-insurance loss portfolio transfer agreement approved by the commissioner of commerce and insurance with an insurer licensed in this state pursuant to which all of the liabilities and obligations pooled by the group of employers of the self-insured trust for their workers' compensation and employers' liability losses, including all existing and incurred but not reported claims, is not required to annually submit a statement of financial condition audited by an independent certified public accountant; provided, that the commissioner of commerce and insurance has granted a request filed by the self-insured trust for exemption from the annual submission of an audited statement of financial condition.
      1. At the request of a group of employers qualifying as self-insurers pursuant to this subsection (c), the commissioner of commerce and insurance, in the commissioner's sole discretion, may grant additional thirty-day extensions to the financial statement filing requirements for acts of God, public enemies, fire, flood, storms or similar events constituting force majeure that cause the group to require more time to meet the filing requirements.
      2. The commissioner of commerce and insurance, after notice and an opportunity for a hearing, may revoke the certificate of approval of a group of employers qualifying as self-insurers pursuant to this subsection (c) if the group fails to comply with this subsection (c) or any rules promulgated under this subsection (c). In addition to or in lieu of revoking a certificate of approval, the commissioner may assess a civil penalty of one hundred dollars ($100) per day for failure to timely meet the filing requirements set forth in this subsection (c). All hearings under this subsection (c) shall be conducted pursuant to the Uniform Administrative Procedures Act.
      3. Financial statements filed pursuant to this subsection (c), individual member financial statements, work papers, notes, internal documents generated by the department of commerce and insurance or any other information obtained by or disclosed to the commissioner of commerce and insurance pursuant to this chapter or any regulations promulgated under this chapter, shall be confidential and shall not be disclosed to the public. This provision, however, shall not apply to the examination report prepared by the commissioner of commerce and insurance, nor to any rebuttal to the examination reports submitted by or on behalf of the group examined. However, nothing contained in this subdivision (c)(4)(C) shall be construed as prohibiting the commissioner of commerce and insurance from disclosing the information listed in this subdivision (c)(4)(C), or any matters relating to that information, to state agencies of this or any other state, or to law enforcement officials of this or any other state or agency of the federal government at any time.
      4. Upon receipt of a request from any approved authorized agent of a group of employers qualifying as self-insurers pursuant to this subsection (c), the group shall provide a copy of the annual statement of financial condition. The agent, however, shall not further disseminate the information except for purposes of obtaining errors and omission insurance or in the exercise of due diligence of the agent on behalf of the agent's client seeking admission to the group. Further, any individual or entity obtaining a copy of the statement shall hold the information confidential and shall not share or disclose the information to any other individual or entity.
    3. All groups pooling their liabilities pursuant to this subsection (c) shall pay premium tax and surcharges at the rates set forth in § 56-4-206. Each group's premium tax and surcharge payments shall be due on or before the last day of the sixth month following the end of the group's fiscal year. Any group failing to timely pay the taxes and surcharges shall be subject to the penalties and sanctions set forth in § 56-4-216.
    4. The sponsoring trade association may determine whether or not the pool shall remain in existence, subject to the approval of the commissioner.
    5. The pool shall provide to the sponsoring trade association all information requested by the association, other than a member's financial information.
    6. The sponsoring association shall not be liable or responsible for any act or omission of the pool.
    7. The commissioner of commerce and insurance has the authority to promulgate rules and regulations that would provide for civil penalties for violations of this subsection (c) or rules promulgated under this subsection (c).
    1. It is an offense for any employer whose employee is entitled to the benefits of this chapter:
      1. To require such employee to pay any portion of the insurance premium paid by the employer; or
      2. To deduct any portion of such premium from the wages or salary of such employee.
    2. A violation of subdivision (d)(1) is a Class C misdemeanor.
      1. In addition to any criminal penalty assessed for a violation of subdivision (d)(1), the administrator of the bureau of workers' compensation is authorized to impose a civil penalty of up to an amount equal to the amount of premiums deducted from such employee’s wages or salary.
      2. If a civil penalty is assessed pursuant to subdivision (d)(3)(A), the administrator of the bureau of workers' compensation shall assess the penalty in a specific dollar amount to be paid directly to the employee.
  2. If at any time the commissioner of commerce and insurance deems the security or bond inadequate or unsafe, the commissioner shall require adequate bond or security.
  3. The commissioner of commerce and insurance may require the employer to secure excess catastrophe reinsurance coverage.
  4. This part shall not apply to policies of insurance against loss from explosions of boilers or flywheels or other similar single catastrophe hazards.
  5. The commissioner of commerce and insurance may issue rules, regulations and orders necessary to properly administer the deposits, bonds and financial evidence as required in this part.
  6. It is the duty of the commissioner of commerce and insurance and the administrator of the bureau of workers' compensation to interchange information as to matters of mutual interest under this chapter.
  7. Any employer of a construction services provider, as defined in § 50-6-901, shall, upon request by the bureau, provide proof of valid workers' compensation insurance coverage at the employer's place of business and at job sites where the employer is providing construction services. Failure to provide proof of valid workers' compensation insurance coverage within one (1) business day of the request may result in a penalty of not less than fifty dollars ($50.00) nor more than five hundred dollars ($500) per violation for any initial violation at the discretion of the administrator or administrator's designee, and not less than fifty dollars ($50.00) nor more than five thousand dollars ($5,000) per violation for subsequent violations. The administrator has discretion in determining acceptable proof of coverage, including electronic proof of coverage, taking into account standard insurance industry practices. Insurers shall advise policy holders who are construction services providers regarding the availability of electronic downloads of policy information to facilitate field inspection of proof of workers' compensation coverage.

Acts 1919, ch. 123, § 41; impl. am. Acts 1923, ch. 7, §§ 2, 50; Shan. Supp., § 3608a191; mod. Code 1932, § 6895; Acts 1941, ch. 90, § 11; mod. C. Supp. 1950, § 6895; impl. am. Acts 1971, ch. 137, § 1; Acts 1973, ch. 379, § 11; 1978, ch. 759, § 1; impl. am. Acts 1980, ch. 534, § 1; Acts 1980, ch. 457, §§ 1, 2; T.C.A. (orig. ed.), § 50-1205; Acts 1985, ch. 381, § 1; 1989, ch. 591, § 113; 1993, ch. 224, § 1; 1995, ch. 142, § 1; 1997, ch. 533, § 50; 1999, ch. 520, § 41; 2000, ch. 852, § 15; 2002, ch. 544, §§ 1, 2; 2003, ch. 359, §§ 7-9, 13; 2004, ch. 962, §§ 34-37, 47; 2005, ch. 390, §§ 9-12; 2006, ch. 954, §§ 1, 2; 2008, ch. 841, § 1; 2009, ch. 217, § 1; 2009, ch. 373, §§ 1, 2; 2009, ch. 566, § 12; 2010, ch. 1149, § 7; 2013, ch. 282, § 1; 2015, ch. 341, § 15; 2017, ch. 344, § 10.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that: (a) The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of this act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.

It is the intent of the general assembly that the savings of this act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2009, ch. 566, § 12 provided that the Tennessee code commission is directed to change all references to public necessity rules, wherever such references appear in this code, to emergency rules, as sections are amended and volumes are replaced.

Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which amended (d). All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2017, ch. 344, § 12 provided that the act, which added (j), shall apply to violations that occur on and after May 9, 2017.

Amendments. The 2013 amendment, effective July 1, 2014, substituted “administrator of the division of workers' compensation” for “commissioner of labor and workforce development” in the last sentence of (b)(3), (b)(6), and (i), and substituted “administrator of the division of workers' compensation” for “commissioner” in (d)(3)(A) and (B).

The 2015 amendment substituted “bureau” for “division” throughout.

The 2017 amendment added (j).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2017, ch. 344, § 12. May 9, 2017.

50-6-405. Compensation insurance or proof of financial ability required — Self insurers — Payment of premiums — Excess catastrophe reinsurance coverage — Authority and duty of commissioner. [Applicable to injuries occurring prior to July 1, 2014.]

  1. Every employer under and affected by this chapter, shall:
    1. Insure and keep insured the employer's liability under this chapter in some person or persons, association, organization or corporation authorized to transact the business of workers' compensation insurance in this state; or
    2. Possess a valid certificate of authority from the commissioner of commerce and insurance by furnishing satisfactory proof of the employer's financial ability to pay all claims that may arise against the employer under this chapter and guarantee the payment of the claims in the amount and manner and when due as provided for in this chapter.
    1. If the employer elects to proceed under subdivision (a)(2), the commissioner of commerce and insurance shall require the applicant to pay a nonrefundable application fee of five hundred dollars ($500) or in an amount the commissioner shall promulgate by rule.
    2. The commissioner of commerce and insurance shall require the applicant to file and maintain with the department of commerce and insurance the following:
        1. Security, in an amount to be determined by the commissioner of commerce and insurance, but not less than five hundred thousand dollars ($500,000), in any of the following forms, as specified herein: negotiable securities; a surety bond; a certificate of deposit; or a letter of credit;
        2. The security, or a contract between the self-insured employer, a depository institution and the commissioner of commerce and insurance evidencing the security held in the depository institution for purposes of compliance with this section, shall be held by the commissioner of commerce and insurance and shall be conditioned to run solely and directly for the benefit of the employees of the self-insured employer. Any legal actions to enforce the payment of the security being held for purposes of compliance with this section shall be brought by the commissioner of commerce and insurance for the benefit of the employees of the self-insured employer;
        3. The security held pursuant to this section may be used for the payment of any and all fees or costs required to administer the disbursement of the proceeds to or for the benefit of the employees.
        4. The venue for any suit filed by the commissioner of commerce and insurance under this provision shall be in Davidson County.
        5. (a)  Any security held for purposes of compliance with this section shall be held for a minimum of ten (10) years after the self-insured employer is no longer self-insured and the self-insured employer shall maintain the fair market value of security on deposit at not less than five hundred thousand dollars ($500,000), unless otherwise approved by the commissioner of commerce and insurance or the commissioner's designee;
          1. (v)  (a)  Any security held for purposes of compliance with this section shall be held for a minimum of ten (10) years after the self-insured employer is no longer self-insured and the self-insured employer shall maintain the fair market value of security on deposit at not less than five hundred thousand dollars ($500,000), unless otherwise approved by the commissioner of commerce and insurance or the commissioner's designee;
          2. Any employer that is no longer self-insured pursuant to this section as of December 31, 2004, shall not be subject to subdivision (b)(2)(A)(v)(a );
        6. All security, and contracts evidencing the security, filed with the commissioner of commerce and insurance shall be in a form substantively that has been previously approved by the commissioner of commerce and insurance. Any security that fails to meet any requirement under this section shall not be considered for purposes of determining a self-insurer's compliance with any of the security maintenance requirements of this section;
        7. As used in this subdivision (b)(2)(A), “qualified United States financial institution” shall have the meaning assigned by § 56-2-209(a).
        8. The commissioner of commerce and insurance may by rule establish requirements for securities posted pursuant to this subsection (b). These rules may also prescribe the various types and classes of securities that the commissioner of commerce and insurance will accept under this subsection (b).
        1. Evidence of the employer's financial ability to pay all claims that may arise against the employer in the form of an annual certified financial statement, including a statement of assets and liabilities and a statement of profit and loss, to be filed no later than the last day of the sixth month after the end of the employer's immediately preceding fiscal year;
        2. The financial statement is to include a detailed accounting for reserves for losses outstanding incurred in connection with workers' compensation self-insurance. The employer's losses and adequacy of reserves shall be certified annually by an actuary qualified under rules established by the commissioner of commerce and insurance for the filing of statements by insurance companies.
    3. Filings pursuant to this subsection (b) shall be kept confidential by the commissioner of commerce and insurance and shall not be construed to be a public record pursuant to title 10, chapter 7.
    4. The commissioner of commerce and insurance may assess a civil penalty of one hundred dollars ($100) per day for each day any self-insured employer has failed to comply with any financial record filing requirement. The civil penalty assessed under this subdivision (b)(4) shall be cumulative and in addition to any other civil penalty or remedy available to the commissioner. No civil penalty shall be assessed against any political subdivision of the state.
    5. The commissioner of commerce and insurance shall take into account all available information when making the determination as to both the adequacy of all security deposits, letters of credit, negotiable securities or bonds held by the commissioner and whether an employer has the ability to pay all claims that may arise.
    6. No employer shall self-insure its workers' compensation liabilities without a certificate of authority issued by the commissioner of commerce and insurance. It shall be unlawful for any employer to self-insure its liabilities for workers' compensation without first obtaining a duly issued certificate of authority from the commissioner of commerce and insurance. Whenever an employer has complied with subdivisions (a)(2) and (b)(2)(A) and (B), the commissioner of commerce and insurance, or the commissioner's designee, may issue to the employer a certificate of authority allowing the employer to self-insure under this section. Notice of this authorization shall be sent to the commissioner of labor and workforce development.
    7. Upon failure by an authorized self-insured employer to furnish the commissioner of commerce and insurance the requirements delineated in subdivisions (a)(2) and (b)(2)(A) and (B), the commissioner may, after giving written notice and an opportunity for a hearing to the affected party or parties within thirty (30) days, suspend or revoke the certificate authorizing the employer to self-insure granted under this section. The commissioner may, without prior notice and if it appears in the commissioner's discretion that the continuation of the certificate would be clearly hazardous to the employees of the self-insurer or to the public generally, summarily suspend an authorized self-insurer's certificate before a hearing is commenced and in that event shall immediately notify the self-insurer, and the notice shall include a statement to the effect that the commissioner's action is subject to review. All hearings conducted under this section shall comply with the contested case provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
    8. Any hearing under this section shall be requested in writing by the self-insured employer within fifteen (15) days of receiving written notification from the commissioner of commerce and insurance or the commissioner's designee. In any proceeding in which the self-insured employer's certificate of authority is suspended or revoked, the self-insured employer shall pay all costs associated with the proceeding. The commissioner may serve a notice, order, petition or complaint in any action arising under this section by certified mail to the self-insured employer at the address of record in the files of the department. Notwithstanding any law to the contrary, service in the manner set forth in this subdivision (b)(8), shall be deemed to constitute actual service on the self-insured employer.
    9. The commissioner of commerce and insurance or the commissioner's designee shall immediately notify the commissioner of labor and workforce development of any decision to suspend or revoke a certificate authorizing an employer to self-insure.
    10. The commissioner of commerce and insurance or the commissioner's designee has the authority to examine and investigate any self-insured employer whenever the commissioner deems it prudent to do so. The purposes and scope of the examinations and the commissioner's powers shall be set forth in title 56, chapter 1, part 4, pertaining to examinations of insurance companies.
    11. The commissioner of commerce and insurance may promulgate rules and regulations, including emergency rules and regulations, necessary for the administration of this section and shall conduct all rulemaking in accordance with the Uniform Administrative Procedures Act.
    1. With the permission of a trade or professional association board of directors, ten (10) or more employers of the same group may enter into agreements to pool their liabilities under this chapter for the purpose of qualifying as self-insurers. The trade or professional association shall have been in active existence in Tennessee for at least five (5) years and the association shall:
      1. Have a constitution or bylaws;
      2. Have members that support the association by regular payment of dues on an annual, semiannual, quarterly or monthly basis; and
      3. Be created in good faith for purposes other than that of creating workers' compensation self-insurer pools. The commissioner of commerce and insurance has the authority to promulgate rules and regulations deemed necessary to provide for the solvency, administration and enforcement of the pooling agreements. To the extent deemed necessary by the commissioner of commerce and insurance, each employer member of the approved group shall be classified as a self-insurer as otherwise provided in this chapter.
    2. Notwithstanding any other law or rule to the contrary, funds not needed for current obligations may be invested by the board of trustees in Tennessee securities as defined in § 56-4-210(a). The board of trustees of each workers' compensation pool shall adopt an investment policy. The policy shall address credit, quality of investments, maximum maturity of investments and other matters the board deems appropriate. Real estate investments must be undertaken with the approval of the commissioner of commerce and insurance.
      1. Each group of employers qualifying as self-insurers pursuant to this subsection (c) shall submit to the commissioner of commerce and insurance a statement of financial condition audited by an independent certified public accountant on or before the last day of the sixth month following the end of the group's fiscal year. A thirty-day extension of the financial statement filing requirement shall be granted by the commissioner upon receipt of a request, via certified mail, by a group. The request shall be submitted to the commissioner not less than thirty (30) days prior to the date the financial statement is due to be filed.
      2. Notwithstanding subdivision (c)(3)(A), a qualified self-insured trust that has entered into a self-insurance loss portfolio transfer agreement approved by the commissioner of commerce and insurance with an insurer licensed in this state pursuant to which all of the liabilities and obligations pooled by the group of employers of the self-insured trust for their workers' compensation and employers' liability losses, including all existing and incurred but not reported claims, is not required to annually submit a statement of financial condition audited by an independent certified public accountant; provided, that the commissioner of commerce and insurance has granted a request filed by the self-insured trust for exemption from the annual submission of an audited statement of financial condition.
      1. At the request of a group of employers qualifying as self-insurers pursuant to this subsection (c), the commissioner of commerce and insurance, in the commissioner's sole discretion, may grant additional thirty-day extensions to the financial statement filing requirements for acts of God, public enemies, fire, flood, storms or similar events constituting force majeure that cause the group to require more time to meet the filing requirements;
      2. The commissioner of commerce and insurance, after notice and an opportunity for a hearing, may revoke the certificate of approval of a group of employers qualifying as self-insurers pursuant to this subsection (c) if the group fails to comply with this subsection (c) or any rules promulgated under this subsection (c). In addition to or in lieu of revoking a certificate of approval, the commissioner may assess a civil penalty of one hundred dollars ($100) per day for failure to timely meet the filing requirements set forth in this subsection (c). All hearings under this subsection (c) shall be conducted pursuant to the Uniform Administrative Procedures Act.
      3. Financial statements filed pursuant to this subsection (c), individual member financial statements, work papers, notes, internal documents generated by the department of commerce and insurance or any other information obtained by or disclosed to the commissioner of commerce and insurance pursuant to this chapter or any regulations promulgated under this chapter, shall be confidential and shall not be disclosed to the public. This provision, however, shall not apply to the examination report prepared by the commissioner of commerce and insurance, nor to any rebuttal to the examination reports submitted by or on behalf of the group examined. However, nothing contained in this subdivision (c)(4)(C) shall be construed as prohibiting the commissioner of commerce and insurance from disclosing the information listed in this subdivision (c)(4)(C), or any matters relating to that information, to state agencies of this or any other state, or to law enforcement officials of this or any other state or agency of the federal government at any time;
      4. Upon receipt of a request from any approved authorized agent of a group of employers qualifying as self-insurers pursuant to this subsection (c), the group shall provide a copy of the annual statement of financial condition. The agent, however, shall not further disseminate the information except for purposes of obtaining errors and omission insurance or in the exercise of due diligence of the agent on behalf of the agent's client seeking admission to the group. Further, any individual or entity obtaining a copy of the statement shall hold the information confidential and shall not share or disclose the information to any other individual or entity.
    3. All groups pooling their liabilities pursuant to this subsection (c) shall pay premium tax and surcharges at the rates set forth in § 56-4-206. Each group's premium tax and surcharge payments shall be due on or before the last day of the sixth month following the end of the group's fiscal year. Any group failing to timely pay the taxes and surcharges shall be subject to the penalties and sanctions set forth in § 56-4-216.
    4. The sponsoring trade association may determine whether or not the pool shall remain in existence, subject to the approval of the commissioner.
    5. The pool shall provide to the sponsoring trade association all information requested by the association, other than a member's financial information.
    6. The sponsoring association shall not be liable or responsible for any act or omission of the pool.
    7. The commissioner of commerce and insurance has the authority to promulgate rules and regulations that would provide for civil penalties for violations of this subsection (c) or rules promulgated under this subsection (c).
    1. It is an offense for any employer whose employee is entitled to the benefits of this chapter:
      1. To require such employee to pay any portion of the insurance premium paid by the employer; or
      2. To deduct any portion of such premium from the wages or salary of such employee.
    2. A violation of subdivision (d)(1) is a Class C misdemeanor.
      1. In addition to any criminal penalty assessed for a violation of subdivision (d)(1), the commissioner is authorized to impose a civil penalty of up to an amount equal to the amount of premiums deducted from such employee’s wages or salary.
      2. If a civil penalty is assessed pursuant to subdivision (d)(3)(A), the commissioner shall assess the penalty in a specific dollar amount to be paid directly to the employee.
  2. If at any time the commissioner of commerce and insurance deems the security or bond inadequate or unsafe, the commissioner shall require adequate bond or security.
  3. The commissioner of commerce and insurance may require the employer to secure excess catastrophe reinsurance coverage.
  4. This part shall not apply to policies of insurance against loss from explosions of boilers or flywheels or other similar single catastrophe hazards.
  5. The commissioner of commerce and insurance may issue rules, regulations and orders necessary to properly administer the deposits, bonds and financial evidence as required in this part.
  6. It is the duty of the commissioner of commerce and insurance and the commissioner of labor and workforce development to interchange information as to matters of mutual interest under this chapter.

Acts 1919, ch. 123, § 41; impl. am. Acts 1923, ch. 7, §§ 2, 50; Shan. Supp., § 3608a191; mod. Code 1932, § 6895; Acts 1941, ch. 90, § 11; mod. C. Supp. 1950, § 6895; impl. am. Acts 1971, ch. 137, § 1; Acts 1973, ch. 379, § 11; 1978, ch. 759, § 1; impl. am. Acts 1980, ch. 534, § 1; Acts 1980, ch. 457, §§ 1, 2; T.C.A. (orig. ed.), § 50-1205; Acts 1985, ch. 381, § 1; 1989, ch. 591, § 113; 1993, ch. 224, § 1; 1995, ch. 142, § 1; 1997, ch. 533, § 50; 1999, ch. 520, § 41; 2000, ch. 852, § 15; 2002, ch. 544, §§ 1, 2; 2003, ch. 359, §§ 7-9, 13; 2004, ch. 962, §§ 34-37, 47; 2005, ch. 390, §§ 9-12; 2006, ch. 954, §§ 1, 2; 2008, ch. 841, § 1; 2009, ch. 217, § 1; 2009, ch. 373, §§ 1, 2; 2009, ch. 566, § 12; 2010, ch. 1149, § 7.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that: (a) The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of this act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.

It is the intent of the general assembly that the savings of this act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2009, ch. 566, § 12 provided that the Tennessee code commission is directed to change all references to public necessity rules, wherever such references appear in this code, to emergency rules, as sections are amended and volumes are replaced.

Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which amended (d). All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

      Cross-References. Confidentiality of public records, § 10-7-504.

      Inquisitorial powers of grand jury over violations, § 50-6-410.

      Penalty for Class C misdemeanor, § 40-35-111.

      Violation of this section as Class C misdemeanor, § 50-6-410.

      Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, §§ 5, 7.

      Law Reviews.

      Workmen's Compensation in Tennessee: The Second Injury Fund, 6 Mem. St. U.L. Rev. 715 (1976).

      1. Constitutionality. 2. Employer's Failure to Comply — Effect. 3. Effect of Employer's Compliance. 4. Election of Remedies. 5. Waiver of Right to Sue at Law. 6. Joint and Several Liability of Employer and Insurer. 7. Joint Action Against Employer and Insurer. 8. Liability of Insurer to Employer. 9. Guarantor of Self-Insured. 10. Pleadings. 11. —Nature of Allegations. 12. Evidence. 13. —Admissibility of Insured's Statements. 14. Activities Required by Insurance as Compensable. 15. Nature of Insurance. 16. Injuries Covered. 17. Termination of Insurance. 18. Reduction in Work Force. 19. Commissioner's Authority.

      Constitutional requirement that act and title contain only one subject was not violated in that compensation act and title provided revenue for the state and compensation to employees by providing for fines after conviction upon violation of certain of its provisions and by appropriating from state revenues sums necessary to effectuate the purpose of the act. To withhold the revenue necessary would render the act a nullity. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

      Employer failing to comply with statute may be liable to injured employee for compensation under the compensation statute, or at law as if its provisions had been refused. Barbee v. Baker Car Co., 154 Tenn. 130, 289 S.W. 525, 1926 Tenn. LEXIS 110 (1926).

      Employer, who has failed to comply with section, when sued at law, cannot rely upon the defenses of contributory negligence, the negligence of a fellow servant or assumed risk. Schroader v. Rural Educational Ass'n, 33 Tenn. App. 36, 228 S.W.2d 491, 1950 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1950).

      Directors and stockholders of corporation were not individually liable for payment of compensation to widow of employee killed in his employment because of failure of corporation to provide compensation coverage on the ground that judgment for compensation was in excess of capital stock, as no affirmative act of the stockholders created the debt since such debt arose as the result of an unforeseen accident. Kilgore v. Ake Coal Co., 182 Tenn. 479, 187 S.W.2d 781, 1945 Tenn. LEXIS 243 (1945).

      Where an employer had not renewed his annual filing of evidence of compliance with the Workers' Compensation Law at the time of employee's death, employer was not subject to common-law liability under this section because the provision for election of remedy by employee only applies to initial compliance, not renewal compliance. House v. John Bouchard & Sons Co., 495 S.W.2d 541, 1972 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1972).

      Where an employer does not voluntarily comply with this section by posting a certificate of insurance or by meeting the requirements of a self-insured employer, such an employer who is subject to the Workers' Compensation Law is liable for benefits to an employee injured in the course of his employment, and the employee has the option to proceed at common law or to seek workers' compensation benefits. Thomas v. Transport Ins. Co., 532 S.W.2d 263, 1976 Tenn. LEXIS 603 (Tenn. 1976).

      An employer who has filed proof of insurance with the division of workers' compensation has acknowledged that he is subject to the Workers' Compensation Law. Karstens v. Wheeler Millwork Cabinet & Supply Co., 614 S.W.2d 37, 1981 Tenn. LEXIS 417 (Tenn. 1981).

      The institution of an action at law does not operate as a waiver to sue for compensation until the action at law has been prosecuted to final judgment, and likewise the institution of a suit for compensation does not operate as a waiver of the right to sue at law until it is prosecuted to final judgment. Hudgins v. Nashville Bridge Co., 172 Tenn. 580, 113 S.W.2d 738, 1937 Tenn. LEXIS 99 (1938).

      Minor who recovered against employer in suit for violation of Child Labor Law was not entitled to recover compensation from workers' compensation insurer for injury arising out of and in course of such employment. Davis v. United States Fidelity & Guaranty Co., 206 Tenn. 683, 337 S.W.2d 240, 1960 Tenn. LEXIS 419 (1960).

      The claim of compensation under this section and § 50-6-406, which will constitute a waiver of the right to sue at law, is a claim filed in a tribunal having jurisdiction to hear and determine it and not a mere request or demand upon the employer invoking no process of law for its enforcement. Shipley v. Wellwood Silk Throwing Mills, 164 Tenn. 281, 47 S.W.2d 561, 1931 Tenn. LEXIS 33 (1932).

      The mere filing of the statutory notice by an employee, which is a prerequisite to a valid claim for compensation, cannot be given the effect of a waiver of the right to sue for damages under this section, a distinction between notice and claim being recognized by the Workers' Compensation Law. Shipley v. Wellwood Silk Throwing Mills, 164 Tenn. 281, 47 S.W.2d 561, 1931 Tenn. LEXIS 33 (1932).

      Where employee instituted a suit at law for injuries due to lead poisoning suffered while in defendant's employ and then instituted a suit for compensation under the compensation statute but did not prosecute the suit for compensation to final judgment, the employee was not barred from proceeding with the action at law. Hudgins v. Nashville Bridge Co., 172 Tenn. 580, 113 S.W.2d 738, 1937 Tenn. LEXIS 99 (1938).

      “Voluntariness” of payments of workers' compensation accepted by widow of deceased employee does not authorize the widow to accept workers' compensation and at the same time maintain a suit against the employer for wrongful death. Mooney v. Stainless, Inc., 338 F.2d 127, 1964 U.S. App. LEXIS 4741 (6th Cir. Tenn. 1964), cert. denied, 381 U.S. 925, 85 S. Ct. 1561, 14 L. Ed. 2d 684, 1965 U.S. LEXIS 1173 (1965).

      The employer and insurer are each principals jointly and severally liable to the employee, and if the insurer becomes insolvent the employer is liable for the unpaid balance due the employee. Collins v. Murray, 164 Tenn. 580, 51 S.W.2d 834, 1931 Tenn. LEXIS 52 (1932).

      An employee's action under the Workers' Compensation Law may be against the employer and the insurer jointly. American Mut. Liability Ins. Co. v. Patrick, 157 Tenn. 618, 11 S.W.2d 872, 1928 Tenn. LEXIS 229 (1928); Douglas v. Sharp, 194 Tenn. 11, 249 S.W.2d 999, 1952 Tenn. LEXIS 346 (1952).

      Workers' compensation insurer is liable in damages to employer for mismanaging claim which such insurer, under the contract of insurance, undertook to defend. Aycock Hosiery Mills v. Maryland Casualty Co., 157 Tenn. 559, 11 S.W.2d 889, 1928 Tenn. LEXIS 221 (1928).

      The guarantor of a self-insured employer's obligations is entitled to the same immunity as a workers' compensation insurer. Malkiewicz v. R.R. Donnelley & Sons Co., 703 F. Supp. 49, 1989 U.S. Dist. LEXIS 290 (M.D. Tenn. 1989), aff'd without opinion, 932 F.2d 968, 1991 U.S. App. LEXIS 14568 (6th Cir. Tenn. 1991).

      There is no principled distinction between the status of a workers' compensation insurer and that of a guarantor who guarantees the employer's financial ability to comply with the workers' compensation statutes. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

      In a suit at law by a servant against his master for personal injuries alleged to have been suffered because of an unsafe place to work and defective machinery, an amendment to the declaration alleging that defendant was subject to the Workers' Compensation Law but failed to so operate by not obtaining workers' compensation insurance or carrying his own insurance did not change the cause of action to one under the compensation statute and the action remained one for common law. Stevens v. Brown, 173 Tenn. 234, 116 S.W.2d 1021, 1938 Tenn. LEXIS 12 (1938).

      The law writes into a contract of employment an obligation upon the employer to insure the employee against accidental injury for benefit of employee's dependents. The right of dependents to benefits of this insurance is vested, at least to the extent that the employee cannot dispose of such benefits, so as to deprive dependents thereof. Insured is without interest under the policy and his statements that he was improperly at place of the accident are inadmissible in suit by dependents against insurer for his death, as declarations against interest. Kennedy v. Columbian Casualty Co., 163 Tenn. 312, 43 S.W.2d 201, 1931 Tenn. LEXIS 118 (1931).

      Where it was necessary for operators of battery plant to provide employees with facilities for removal of clothing and showering at end of work period in order to obtain insurance against occupational disease of lead poisoning, time spent by employees in changing into and out of work clothes and in showering were compensable as an integral part of the principal activities of such employees under the federal Portal-to-Portal Act (29 U.S.C. § 251 et seq.). Steiner v. Mitchell, 350 U.S. 247, 76 S. Ct. 330, 100 L. Ed. 267, 1956 U.S. LEXIS 1743 (1956).

      A policy which insures an employer against liability under the Workers' Compensation Law is a policy of liability insurance. Vines v. United States Fidelity & Guaranty Co., 267 F. Supp. 436, 1967 U.S. Dist. LEXIS 8327 (E.D. Tenn. 1967).

      Workers' compensation insurer takes employee as he finds him and is liable for disability resulting from injury sustained by employee arising out of his employment even though it aggravates a previous condition existing at the time the insurer commenced coverage and results in disability greater than otherwise would have been the case. Newport v. Webb, 223 Tenn. 445, 446 S.W.2d 683, 1969 Tenn. LEXIS 430 (1969).

      An insurance carrier remains liable for the policy period shown on any initial or renewal filing of a proof of insurance filed with the division (now bureau)of workers' compensation unless terminated by notice thereof filed with the division (now bureau), and the effective date of termination cannot precede the date such notice is received by the division. Karstens v. Wheeler Millwork Cabinet & Supply Co., 614 S.W.2d 37, 1981 Tenn. LEXIS 417 (Tenn. 1981).

      An employer employing five or more persons who has filed proof of insurance pursuant to T.C.A. §§ 50-6-405 and 50-6-406, who thereafter reduces his work force to less than five persons, shall be deemed to have elected to remain subject to the workers' compensation law until notice of withdrawal is filed with the division (now bureau) of workers' compensation in accord with T.C.A. § 50-6-106. Whitehead v. Watkins, 741 S.W.2d 327, 1987 Tenn. LEXIS 1029 (Tenn. 1987).

      Insurance commissioner had the authority to make financial assessments against members of a self-insured trucking association's workers'  compensation trust to remedy a deficit in the trust under T.C.A. § 50-6-405(c), and she met the only requirement that the assessment methodology be equitable because the commissioner used procedures and guidelines established by the national council on compensation insurance and corrected errors in the premiums charged, resulting in the members being responsible for an equitable proportion of the deficit. State ex rel. Flowers v. Tenn. Trucking Ass'n Self Ins. Group Trust, 209 S.W.3d 595, 2006 Tenn. App. LEXIS 249 (Tenn. Ct. App. 2006), appeal denied, State ex rel. Flowers v. Tenn. Trucking Ass'n Self Ins. Group Trust & Trucking Servs., — S.W.3d —, 2006 Tenn. LEXIS 1009 (Tenn. Oct. 30, 2006).

  2. If an employer fails to comply with  § 50-6-405, then during the continuance of the failure, the employer shall be liable to an injured employee either for compensation as provided in this chapter to be recovered in an action brought in a court of competent jurisdiction for that purpose, or for damages to be recovered as if this chapter had not been enacted, as the employee may elect; and in the case suit for damages is brought instead of a suit to recover compensation under this chapter, the employer, when sued, shall not be allowed to set up as a defense to the action that the employee was negligent, or that the injury was caused by negligence of a fellow servant or fellow employee, or that the employee had assumed the risk of the injury.
  3. Claim of compensation made under this chapter shall be deemed a waiver of the right to sue for damages, and the institution and prosecution to final judgment of a suit for damages shall be deemed a waiver of a right to claim compensation under this chapter.

NOTES TO DECISIONS

1. Constitutionality.

2. Employer's Failure to Comply — Effect.

3. Effect of Employer's Compliance.

4. Election of Remedies.

5. Waiver of Right to Sue at Law.

6. Joint and Several Liability of Employer and Insurer.

7. Joint Action Against Employer and Insurer.

8. Liability of Insurer to Employer.

9. Guarantor of Self-Insured.

10. Pleadings.

11. —Nature of Allegations.

12. Evidence.

13. —Admissibility of Insured's Statements.

14. Activities Required by Insurance as Compensable.

15. Nature of Insurance.

16. Injuries Covered.

17. Termination of Insurance.

18. Reduction in Work Force.

19. Commissioner's Authority.

50-6-406. Evidence of compliance to be filed — Penalty for failing to comply — Liability to employee in damages — Defenses.

Every employer, or the employer's insurance carrier unless the employer is self-insured, subject to this chapter, shall file evidence of its compliance with § 50-6-405 with the bureau of workers' compensation on a form prescribed by the administrator, within thirty (30) days after procurement or renewal of suitable workers' compensation insurance or qualification as a self-insurer.

Acts 1919, ch. 123, § 42; impl. am. Acts 1923, ch. 7, §§ 2, 50; Shan. Supp., § 3608a192; mod. Code 1932, § 6896; Acts 1973, ch. 379, § 12; 1978, ch. 759, § 2; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1206; Acts 1989, ch. 591, § 113; 1999, ch. 520, § 41; 2000, ch. 852, § 16; 2013, ch. 282, § 1; 2015, ch. 341, § 15.

Compiler's Notes. Acts 2000, ch. 852, § 21, provided that (b), as rewritten by the act, is effective for violations occurring on and after January 1, 2001.

Amendments. The 2013 amendment, effective July 1, 2014, substituted “administrator” for “commissioner” in (a).

The 2015 amendment substituted “bureau” for “division” in (a).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-406. Evidence of compliance to be filed — Penalty for failing to comply — Liability to employee in damages — Defenses. [Applicable to injuries occurring prior to July 1, 2014.]

  1. Every employer, or the employer's insurance carrier unless the employer is self-insured, subject to this chapter, shall file evidence of its compliance with § 50-6-405 with the division of workers' compensation on a form prescribed by the commissioner, within thirty (30) days after procurement or renewal of suitable workers' compensation insurance or qualification as a self-insurer.
  2. If an employer fails to comply with  § 50-6-405, then during the continuance of the failure, the employer shall be liable to an injured employee either for compensation as provided in this chapter to be recovered in an action brought in a court of competent jurisdiction for that purpose, or for damages to be recovered as if this chapter had not been enacted, as the employee may elect; and in the case suit for damages is brought instead of a suit to recover compensation under this chapter, the employer, when sued, shall not be allowed to set up as a defense to the action that the employee was negligent, or that the injury was caused by negligence of a fellow servant or fellow employee, or that the employee had assumed the risk of the injury.
  3. Claim of compensation made under this chapter shall be deemed a waiver of the right to sue for damages, and the institution and prosecution to final judgment of a suit for damages shall be deemed a waiver of a right to claim compensation under this chapter.

Acts 1919, ch. 123, § 42; impl. am. Acts 1923, ch. 7, §§ 2, 50; Shan. Supp., § 3608a192; mod. Code 1932, § 6896; Acts 1973, ch. 379, § 12; 1978, ch. 759, § 2; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1206; Acts 1989, ch. 591, § 113; 1999, ch. 520, § 41; 2000, ch. 852, § 16.

Compiler's Notes. Acts 2000, ch. 852, § 21, provided that (b), as rewritten by the act, is effective for violations occurring on and after January 1, 2001.

The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

Cross-References. Inquisitorial powers of grand jury over violations, § 50-6-410.

Textbooks. Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, § 5.

Law Reviews.

Workmen's Compensation in Tennessee: The Second Injury Fund, 6 Mem. St. U.L. Rev. 715 (1976).

NOTES TO DECISIONS

1. Employer's Failure to Comply with Statute — Effect.

Where an employer had not renewed his annual filing of evidence of compliance with the Workers' Compensation Law at the time of employee's death, employer was not subject to common law liability under this section because there was no showing that noncompliance was the result of refusal or willful neglect. House v. John Bouchard & Sons Co., 495 S.W.2d 541, 1972 Tenn. App. LEXIS 302 (Tenn. Ct. App. 1972).

Although employer had made the initial filing as required by § 50-6-405, where it failed to make the subsequent annual filings as required by this section for a period of almost three years immediately preceding the date of the accident, and continued in default thereafter and on day of trial presented an affidavit showing that it continuously had workers' compensation insurance in effect but containing no excuse or explanation for its failure to file, it amounted to a refusal and willful neglect to file, and suit by person injured could be maintained for common-law negligence. Wilson v. French, 601 S.W.2d 919, 1980 Tenn. LEXIS 471 (Tenn. 1980).

2. Reduction in Work Force.

An employer employing five or more persons who has filed proof of insurance pursuant to T.C.A. §§ 50-6-405 and 50-6-406, who thereafter reduces his work force to less than five persons, shall be deemed to have elected to remain subject to the workers' compensation law until notice of withdrawal is filed with the division (now bureau) of workers' compensation in accord with T.C.A. § 50-6-106. Whitehead v. Watkins, 741 S.W.2d 327, 1987 Tenn. LEXIS 1029 (Tenn. 1987).

Collateral References.

Right of employee to maintain common law action for negligence against workmen's compensation insurance carrier. 93 A.L.R.2d 598.

50-6-407. Certificate of compliance with insurance provisions.

Every individual, firm, association, or corporation using the services of one (1) or more persons for pay shall post and maintain in a conspicuous place on the business premises a printed notice regarding workers' compensation as prescribed by the administrator of the bureau of workers' compensation. The notice shall include, at a minimum, a general description of the duties and obligations of both the employer and the employee under the law; the name, address and telephone number of the individual to notify in the event of a work-related injury; a toll-free number and address for the department of labor and workforce development at which employers or employees may obtain additional information; and the name, address and telephone number of a representative of the employer who can confirm whether the individual, firm, association, or corporation is subject to this chapter; and other information required through rules promulgated by the administrator of the bureau of workers' compensation.

Acts 1919, ch. 123, § 43; Shan. Supp., § 3608a193; Code 1932, § 6897; Acts 1978, ch. 759, § 3; T.C.A. (orig. ed.), § 50-1207; Acts 1990, ch. 795, §§ 1-3; 1999, ch. 520, § 41; 2002, ch. 695, § 7; 2003, ch. 359, § 10; 2013, ch. 282, § 1; 2015, ch. 341, § 15.

Amendments. The 2013 amendment, effective July 1, 2014, substituted “administrator of the division of workers' compensation” for “commissioner of labor and workforce development” in two places.

The 2015 amendment substituted “bureau” for “division” in two places.

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-407. Certificate of compliance with insurance provisions. [Applicable to injuries occurring prior to July 1, 2014.]

Every individual, firm, association, or corporation using the services of one (1) or more persons for pay shall post and maintain in a conspicuous place on the business premises a printed notice regarding workers' compensation as prescribed by the commissioner of labor and workforce development. The notice shall include, at a minimum, a general description of the duties and obligations of both the employer and the employee under the law; the name, address and telephone number of the individual to notify in the event of a work-related injury; a toll-free number and address for the department of labor and workforce development at which employers or employees may obtain additional information; and the name, address and telephone number of a representative of the employer who can confirm whether the individual, firm, association, or corporation is subject to this chapter; and other information required through rules promulgated by the commissioner of labor and workforce development.

Acts 1919, ch. 123, § 43; Shan. Supp., § 3608a193; Code 1932, § 6897; Acts 1978, ch. 759, § 3; T.C.A. (orig. ed.), § 50-1207; Acts 1990, ch. 795, §§ 1-3; 1999, ch. 520, § 41; 2002, ch. 695, § 7; 2003, ch. 359, § 10.

50-6-408. Mandatory policy provisions.

All policies insuring the payment of compensation under this chapter, including all contracts of mutual, reciprocal, or interinsurance, must contain a clause to the effect that:

  1. As between the employer and the insurer or insurers, the notice of or knowledge of the occurrence of the injury on the part of the insured employer shall be deemed notice or knowledge, as the case may be, on the part of the insurer or insurers;
  2. Jurisdiction of the insured for the purpose of this chapter shall be jurisdiction of the insurer or insurers; and
  3. The insurer or insurers shall in all things be bound by and subject to the awards, orders, judgments or decrees rendered against the insured employer, whether a formal party to the proceedings or not.

Acts 1919, ch. 123, § 44; Shan. Supp., § 3608a194; Code 1932, § 6898; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1208.

Compiler's Notes. The provisions of the former first sentence of § 50-6-404 were transferred to and incorporated into this section.

NOTES TO DECISIONS

1. Application.

The provisions of this section and § 50-6-409 did not apply to an “employer's group liability policy” not intended as a workers' compensation insurance policy and which provided different benefits from that provided under the compensation act. McKinney v. Fidelity Coal Mining Co., 169 Tenn. 331, 87 S.W.2d 1004, 1935 Tenn. LEXIS 49 (1935).

2. Nature of Policy Contract.

The insurer's contract is not one of guaranty, but creates a primary liability. It possesses characteristics and incidents that cause its construction to be with special reference to the subject of the contract. United States Fidelity & Guaranty Co. v. Booth, 164 Tenn. 41, 45 S.W.2d 1075, 1931 Tenn. LEXIS 8 (1932); Douglas v. Sharp, 194 Tenn. 11, 249 S.W.2d 999, 1952 Tenn. LEXIS 346 (1952).

Where a partnership was insured, the firm may be treated as a distinct entity as contemplated by the parties; and the withdrawal by sale to the other members of a member who takes thereafter the status of an employee does not terminate the contract. Such employee on being injured is not deprived of right to compensation. United States Fidelity & Guaranty Co. v. Booth, 164 Tenn. 41, 45 S.W.2d 1075, 1931 Tenn. LEXIS 8 (1932); Douglas v. Sharp, 194 Tenn. 11, 249 S.W.2d 999, 1952 Tenn. LEXIS 346 (1952).

The contract that the insurance carrier makes in a workers' compensation case is a contract of indemnity. McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956).

3. Nature of Liability.

The employer and the insurer are each principals and are jointly and severally liable to the employee. Collins v. Murray, 164 Tenn. 580, 51 S.W.2d 834, 1931 Tenn. LEXIS 52 (1932).

4. —Insurer's Liability.

The insurance contract being one of indemnity, there is no liability on part of insurer unless the employer is liable. Elliott v. Elliott Bros., 165 Tenn. 23, 52 S.W.2d 144, 1931 Tenn. LEXIS 166 (1932).

Where insurer concedes liability for a certain sum as the amount of weekly payments, judgment will be rendered therefor, although the evidence reveals that petitioner is entitled to a smaller amount as correct sum. United States Fidelity & Guaranty Co. v. McBride, 165 Tenn. 580, 56 S.W.2d 736, 1932 Tenn. LEXIS 89 (1933).

Where sole employer who directed employee to do what she did when she was injured was liable to employee when the compensation statute was otherwise in force as to him, the insurance carrier who was liable as an indemnitor was also liable. McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956).

5. Joint Action Against Employer and Insurer.

The employee's action may be against employer and insurer jointly. American Mut. Liability Ins. Co. v. Patrick, 157 Tenn. 618, 11 S.W.2d 872, 1928 Tenn. LEXIS 229 (1928); Douglas v. Sharp, 194 Tenn. 11, 249 S.W.2d 999, 1952 Tenn. LEXIS 346 (1952).

Where compensation suit is brought against the employer and insurer jointly, and there is judgment of award, such judgment should be against both defendants. American Mut. Liability Ins. Co. v. Patrick, 157 Tenn. 618, 11 S.W.2d 872, 1928 Tenn. LEXIS 229 (1928).

6. Res Judicata.

Where in compensation suit involving successive hospitalizations chancellor found that disability resulted from injury occurring at time of first hospitalization, such finding was binding in subsequent suit between the insurance carriers of the two dates who, although not named, had entered appearances in the original suit. United States Fidelity & Guaranty Co. v. Bituminous Casualty Corp., 52 Tenn. App. 43, 371 S.W.2d 801, 1962 Tenn. App. LEXIS 129 (Tenn. Ct. App. 1962).

Collateral References.

Notice of accident claim, etc., provision of workmen's compensation insurance policy with respect to. 76 A.L.R. 23, 123 A.L.R. 950, 18 A.L.R.2d 443, 32 A.L.R.4th 141.

50-6-409. Policy provision concerning agreement to pay benefits.

  1. No policy of insurance against liability arising under this chapter, shall be issued unless it contains an express agreement of the insurer that it will promptly pay to the person entitled to them all benefits conferred by this chapter and all installments of the compensation that may be awarded or agreed upon, and that this obligation shall not be affected by any default of the insured for the injury or by any default in the giving of any notice required by the policy or otherwise.
  2. The agreement shall be construed to be a direct promise by the insurer to the person entitled to compensation under this chapter, and may be enforced directly by that person in that person's name, and the failure, if any, of the insured to comply with any provisions of the policy regarding notice of injury, and such matters shall not be a defense in a suit on the policy by the insured employee or the insured employee's dependents or representatives, unless it can be shown that the insured employee or the insured employee's representatives or dependents aided and abetted in seeking to mislead or defraud the insurer.

Acts 1919, ch. 123, § 45; Shan. Supp., § 3608a195; Code 1932, § 6899; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-1209.

Law Reviews.

Workmen's Compensation — Propriety of Punitive Damages, 31 Tenn. L. Rev. 272 (1964).

NOTES TO DECISIONS

1. Construction of Policy.

This section and § 50-6-408 must be read into the policy of the insurer. American Mut. Liability Ins. Co. v. Patrick, 157 Tenn. 618, 11 S.W.2d 872, 1928 Tenn. LEXIS 229 (1928); United States Fidelity & Guaranty Co. v. Booth, 164 Tenn. 41, 45 S.W.2d 1075, 1931 Tenn. LEXIS 8 (1932).

Since the insurance required under the Workers' Compensation Law is insurance that will protect employees of the insured in the payment of any compensation to which they may become entitled under the law, the policy of insurance should if possible be construed so as to afford protection to the employees contemplated by the law. Welch v. Reiling, 170 Tenn. 698, 99 S.W.2d 216, 1936 Tenn. LEXIS 51 (1936).

The Workers' Compensation Law must be read into the insurance contract. Douglas v. Sharp, 194 Tenn. 11, 249 S.W.2d 999, 1952 Tenn. LEXIS 346 (1952).

A compensation insurance policy is a direct promise of the insurer to pay compensation to the injured employee. Douglas v. Sharp, 194 Tenn. 11, 249 S.W.2d 999, 1952 Tenn. LEXIS 346 (1952).

The provisions of the Workers' Compensation Law must be read into the contract of insurance and such contract is not one of suretyship or guaranty but is one that creates a primary liability. General Guaranty Ins. Co. v. Scudginton, 213 Tenn. 532, 376 S.W.2d 464, 1964 Tenn. LEXIS 420 (1964).

2. Liability of Insurer.

Insurer who agreed in policy to promptly pay claims under the Workers' Compensation Law and to defend suits arising thereunder was not required to defend suit by minor employee against employer for illegal employment. Park Corp. v. Great American Indem. Co., 187 Tenn. 79, 213 S.W.2d 12, 1948 Tenn. LEXIS 412 (1948).

An insurer was liable on a policy of workers' compensation insurance issued to a partnership leasing and operating coal mining property, notwithstanding a sublease of the property, where the evidence showed that the deceased employee's wages were taken into account in computing the premium paid on the policy, and that the sublease, which was entered into without the consent of the lessor required by the principal lease, was in reality a mere operating arrangement or management contract and the deceased employee was actually the employee of the partnership, and the insurer had notice of the sublease but did not change the policy. Douglas v. Sharp, 194 Tenn. 11, 249 S.W.2d 999, 1952 Tenn. LEXIS 346 (1952).

Determination by trial judge of question of whether or not compensation policy was in effect at time of accident will not be disturbed on appeal if there is any evidence to support such finding. General Guaranty Ins. Co. v. Scudginton, 213 Tenn. 532, 376 S.W.2d 464, 1964 Tenn. LEXIS 420 (1964).

3. Direct Action Against Insurer.

Employee may bring suit directly against the insurer. Hartford Acci. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904, 1928 Tenn. LEXIS 76 (1929); Central Surety & Ins. Corp. v. Court, 162 Tenn. 477, 36 S.W.2d 907, 1930 Tenn. LEXIS 111 (1931).

Injured employee may bring suit directly against the employer's insurer alone, and he is not required to also sue the employer. T. H. Mastin & Co. v. Loveday, 202 Tenn. 589, 202 Tenn. 598, 308 S.W.2d 385, 1957 Tenn. LEXIS 444 (1957), overruled in part, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993); General Guaranty Ins. Co. v. Scudginton, 213 Tenn. 532, 376 S.W.2d 464, 1964 Tenn. LEXIS 420 (1964).

A suit by an injured employee against his employer's liability insurance carrier to determine disability and benefits was a direct action under this section. Vines v. United States Fidelity & Guaranty Co., 267 F. Supp. 436, 1967 U.S. Dist. LEXIS 8327 (E.D. Tenn. 1967).

4. Credits of Insurer.

Liability insurer is entitled to no credit on judgment in compensation case for repeated contributions of employer and his wife out of employer's petty cash to keep family from want during employee's disability, such gratuities not relieving employer or his insurer of statutory liability. Hartford Acci. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904, 1928 Tenn. LEXIS 76 (1929).

5. Penalty for Default or Delay.

The penalty required to be paid by insurance companies for refusal to pay within 60 days after demand does not apply to workers' compensation cases. Wilkinson v. Johnson City Shale Brick Corp., 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1927 Tenn. LEXIS 130 (1928), modified, 156 Tenn. 373, 2 S.W.2d 89, 299 S.W. 1056, 1928 Tenn. LEXIS 243 (1928).

6. Nature and Effect of Judgment.

The employee may sue the insurer alone or jointly with the employer, however only one recovery is contemplated in the amount of which the employee is entitled by the statute and such employee is not entitled to a judgment in one amount against the employer and for a different amount against the insurer. Bituminous Casualty Corp. v. Smith, 200 Tenn. 13, 288 S.W.2d 913, 1956 Tenn. LEXIS 372 (1956).

7. Modification of Judgment on Appeal.

Where insurer appealed compensation award and obtained a modification thereof, supreme court could modify judgment against employer to such extent as was necessary to prevent insurer from paying by reason of such judgment an amount in excess of that to which the insurer was liable under the decision of the supreme court, even though the employer did not join in the appeal. Bituminous Casualty Corp. v. Smith, 200 Tenn. 13, 288 S.W.2d 913, 1956 Tenn. LEXIS 372 (1956); General Guaranty Ins. Co. v. Scudginton, 213 Tenn. 532, 376 S.W.2d 464, 1964 Tenn. LEXIS 420 (1964).

50-6-410. Violations of § 50-6-405.

The grand jury of every county in the state is given inquisitorial power over all violations of § 50-6-405 relating to employers insuring their compensation liability under this chapter, and is required to inquire into all such violations and to present them to the court by indictment or presentment.

Acts 1933, ch. 71, §§ 1, 2; mod. C. Supp. 1950, §§ 11583.1, 11583.2; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), §§ 50-1210, 50-1211; Acts 1989, ch. 591, § 113; 2000, ch. 852, §§ 12, 13.

Law Reviews.

The Tennessee Court Systems — The Jury System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 489 (1977).

50-6-411. Misclassification of employees by construction service providers.

    1. It is a violation of this section if at any time a construction services provider, as defined in § 50-6-901, misclassifies employees to avoid proper classification for premium calculations by concealing any information pertinent to the computation and application of an experience rating modification factor or by materially understating or concealing:
      1. The amount of the construction services provider's payroll;
      2. The number of the construction services provider's employees; or
      3. Any of the construction services provider's employee's duties.
    2. A construction services provider who violates subdivision (a)(1) shall be subject to a penalty issued by the administrator or administrator's designee of up to the greater of one thousand dollars ($1,000) or one and one-half (1 ½) times the average yearly workers' compensation premium for such construction services provider based on the appropriate assigned risk plan advisory prospective loss cost and multiplier minus the premium dollars paid on the policy that was the object of the understatement or concealment.
  1. This section shall have no effect upon a construction services provider's or carrier's duty to provide benefits under this chapter or upon any of the construction services provider's or carrier's rights and defenses under this chapter, including, but not limited to, § 50-6-108.
  2. In addition to the penalties provided for in subdivision (a)(2), the department shall refer cases involving business operations that are in violation of this section to the Tennessee bureau of investigation or the appropriate district attorney general for any action deemed necessary under any applicable criminal law.
    1. As used in this subsection (d), “successor in interest” means a successor in ownership of any part of a business or enterprise that is carried on and controlled in substantially the same manner as the penalized construction services provider.
    2. A penalty issued under this section must follow any owner of a business, or member of an LLC, that is closed, liquidated, or dissolved, when that owner or member owns or operates any part of a subsequent business that is carried on and controlled in substantially the same manner as the penalized construction services provider.
    3. A successor in interest to a construction service provider is liable for any penalty assessed under this section against that construction services provider.
    4. A penalized owner, or member of an LLC, of a construction services provider, or a successor in interest to the construction services provider, may appeal a penalty assessment by requesting a contested case hearing pursuant to § 50-6-412(e).
    5. The administrator or the administrator's designee may waive a penalty against a penalized owner, or member of an LLC, of a construction services provider, or successor in interest to a construction services provider, for good cause.
  3. The funds collected by the administrator or the administrator's designee for penalties assessed pursuant to this section shall be deposited in the employee misclassification education and enforcement fund established by § 50-6-913 to be administered by the administrator.

Acts 2013, ch. 282, § 1; 2013, ch. 424, § 1; 2020, ch. 682, §§ 4, 5.

Compiler's Notes. Former § 50-6-411 (Acts 1990, ch. 719, § 1.), concerning the exception to the prohibition of additional charges on workers' compensation policies, was repealed by Acts 2000, ch. 852, § 5, effective May 31, 2000.

Acts 2013, ch. 424, § 3 provided that the act, which enacted this section, shall apply to violations occurring on or after July 1, 2013.

Acts 2020, ch. 682, § 7 provided that the act, which amended this section, applies to penalties assessed on or after June 15, 2020.

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, substituted “administrator or administrator's designee” for “commissioner or commissioner's designee” in (a)(2); and substituted “administrator” for “commissioner of labor and workforce development” near the beginning and at the end of (e).

The 2020 amendment rewrote (d) which read: “(d)  An individual or entity that is not a successor-in-interest or a principal of a construction services provider who is in violation of this section shall not be liable for the monetary penalties in this section.”; and substituted “pursuant to this section” for “pursuant to subdivision (a)(2)” in (e).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2020, ch. 682, § 7. June 15, 2020.

50-6-411. Misclassification of employees by construction service providers. [Applicable to injuries occurring prior to July 1, 2014.]

    1. It is a violation of this section if at any time a construction services provider, as defined in § 50-6-901, misclassifies employees to avoid proper classification for premium calculations by concealing any information pertinent to the computation and application of an experience rating modification factor or by materially understating or concealing:
      1. The amount of the construction services provider's payroll;
      2. The number of the construction services provider's employees; or
      3. Any of the construction services provider's employee's duties.
    2. A construction services provider who violates subdivision (a)(1) shall be subject to a penalty issued by the commissioner or commissioner's designee of up to the greater of one thousand dollars ($1,000) or one and one-half (1 ½) times the average yearly workers' compensation premium for such construction services provider based on the appropriate assigned risk plan advisory prospective loss cost and multiplier minus the premium dollars paid on the policy that was the object of the understatement or concealment.
  1. This section shall have no effect upon a construction services provider's or carrier's duty to provide benefits under this chapter or upon any of the construction services provider's or carrier's rights and defenses under this chapter, including, but not limited to, § 50-6-108.
  2. In addition to the penalties provided for in subdivision (a)(2), the department shall refer cases involving business operations that are in violation of this section to the Tennessee bureau of investigation or the appropriate district attorney general for any action deemed necessary under any applicable criminal law.
  3. An individual or entity that is not a successor-in-interest or a principal of a construction services provider who is in violation of this section shall not be liable for the monetary penalties in this section.
  4. The funds collected by the commissioner of labor and workforce development or the commissioner's designee for penalties assessed pursuant to subdivision (a)(2) shall be deposited in the employee misclassification education and enforcement fund established by § 50-6-913 to be administered by the commissioner of labor and workforce development.

Acts 2013, ch. 424, § 1.

Compiler's Notes. Former § 50-6-411 (Acts 1990, ch. 719, § 1.), concerning the exception to the prohibition of additional charges on workers' compensation policies, was repealed by Acts 2000, ch. 852, § 5, effective May 31, 2000.

Acts 2013, ch. 424, § 3 provided that the act, which enacted this section, shall apply to violations occurring on or after July 1, 2013.

50-6-412. Penalties for noncompliance with insurance requirements.

  1. The administrator of the bureau of workers' compensation or the administrator's designee has the authority to issue a subpoena to require an employer doing business in the state to produce any and all books, documents or other tangible things that may be relevant to or reasonably calculated to lead to the discovery of relevant information necessary to determine whether an employer is subject to this chapter, or has secured payment of compensation pursuant to this chapter, and to determine the amount of any monetary penalty that is required to be assessed against an employer for failure to secure payment of compensation pursuant to this chapter.
    1. All monetary penalties assessed pursuant to this section that are based on the average yearly workers' compensation premium shall be calculated by utilizing the appropriate assigned risk plan advisory prospective loss cost and multiplier for the employer as of the date of determination that the employer is subject to this chapter, and has not secured payment of compensation pursuant to this chapter.
    2. If the administrator or administrator's designee determines the period of noncompliance with this chapter, is less than one (1) year, any assessed monetary penalty shall be prorated; however, the monetary penalty shall not be less than an amount equal to one (1) month's premium of the average yearly workers' compensation premium for the employer based on the appropriate assigned risk plan advisory prospective loss cost and multiplier.
    3. If any monetary penalty assessed against an employer is held in abeyance pursuant to this section, the period of abeyance shall be two (2) years. Any abated penalty becomes void upon the expiration of the two-year period; provided, that the employer remained subject to this chapter, during the two-year period and continuously secured payment of compensation as required by law. Any abated penalty becomes voidable, if within the two-year period, the employer provides notice to the administrator that the employer is no longer subject to this chapter and upon concurrence of the administrator that the employer is no longer subject to this chapter, the penalty shall become void. Any abated penalty shall become due and payable immediately if, within the two-year period, the employer continues to be subject to this chapter and fails to secure payment of compensation as required by law.
    4. The administrator shall advise an employer of the amount of any assessed monetary penalty in writing and shall include the date on which the monetary penalty shall be due and payable.
    1. When the records of the bureau of workers' compensation indicate, or when the bureau's investigation of an employer indicates, that an employer is subject to this chapter, and has failed to secure payment of compensation as required by this chapter, the bureau shall so notify the employer by certified letter, return receipt requested.
    2. The bureau shall require the employer to provide, within fifteen (15) calendar days of the receipt of the certified letter, either proof that the employer had secured payment of compensation as required by this chapter or a verifiable sworn affidavit, with supporting documentation, that the employer is exempt from this chapter.
    3. The certified letter shall also advise the employer of the monetary penalties that may be assessed against the employer if it is determined by the administrator or the administrator's designee that the employer has failed to secure payment of compensation as required by this chapter and shall advise the employer of the criminal penalties to which the employer may be subject for the failure.
    1. If the employer responds to the certified letter within fifteen (15) calendar days of its receipt and the administrator or the administrator's designee determines that the employer has secured payment of compensation as required by this chapter, or that the employer is not subject to this chapter, no monetary penalty shall be assessed.
    2. If the employer responds to the certified letter within fifteen (15) calendar days of its receipt and the administrator or the administrator's designee determines that the employer is subject to this chapter and that the employer has secured the payment of compensation since the date of receipt of the certified letter, the administrator or the administrator's designee shall issue a decision assessing a monetary penalty to the employer equal to one and one-half (1 ½) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of one thousand dollars ($1,000) or one and one-half (1 ½) times the average yearly workers' compensation premium.
    1. If the employer fails to respond to the certified letter within fifteen (15) calendar days of its receipt or the employer responds to the certified letter but does not provide a verifiable sworn affidavit of exemption, the administrator or the administrator's designee shall issue a decision assessing two (2) penalties. The administrator or administrator's designee shall send the decision to the employer by certified mail, return receipt requested, to the employer's last known address, according to the bureau's records.
      1. The first monetary penalty shall be equal to one and one-half (1 ½) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6- 901, the greater of one thousand dollars ($1,000) or one and one-half (1 ½) times the average yearly workers' compensation premium.
      2. The second monetary penalty shall be equal to the average yearly workers' compensation premium for such employer.
    2. The administrator's or administrator's designee's decision shall notify the employer of all monetary penalties that have been assessed against the employer and the criminal penalties to which the employer may be subject.
    3. The administrator's or administrator's designee's decision shall advise the employer that it may request a contested case hearing to show cause why it should not have been assessed penalties for failure to comply with the workers' compensation law or to challenge the amount of the penalties assessed. Such a request must be made to the bureau in writing within fifteen (15) calendar days of receipt of the administrator's or administrator's designee's decision assessing monetary penalties. If such request is not timely made, the decision becomes final.
    4. The employer has the burden of proof at the contested case hearing and shall produce documentary evidence that the penalties should be reduced, that the employer is not subject to this chapter, or that the employer was in compliance with this chapter.
    5. The contested case hearing shall be scheduled to be heard in a timely manner, not to exceed forty-five (45) calendar days from the date of the employer's timely written request for a contested case hearing pursuant to subdivision (e)(3).
    1. If the administrator or the administrator's designee determines at the contested case hearing that the employer is not subject to this chapter, or that the employer had secured and continues to secure payment of compensation as required by this chapter, all monetary penalties shall be void.
    2. If the administrator or the administrator's designee determines at the contested case hearing that the employer is subject to this chapter and that the employer has come into compliance with this chapter by securing payment of compensation prior to the date of the contested case hearing, the first monetary penalty equal to one and one-half (1 ½) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of one thousand dollars ($1,000) or one and one-half (1 ½) times the average yearly workers' compensation premium shall be due; however, the second monetary penalty equal to the average yearly workers' compensation premium shall be held in abeyance.
    3. If the administrator or the administrator's designee determines at the contested case hearing that the employer is subject to this chapter and that the employer has failed to secure payment of compensation as required by this chapter, the employer shall be ordered to procure workers' compensation insurance coverage and to provide the bureau with proof of coverage within five (5) days of the issuance of the order, excluding Saturdays, Sundays and holidays. If the employer obtains workers' compensation insurance coverage and provides the bureau with proof of coverage as ordered, the first monetary penalty equal to one and one-half (1 ½) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of one thousand dollars ($1,000) or one and one-half (1 ½) times the average yearly workers' compensation premium shall be due; however, the second monetary penalty equal to the average yearly workers' compensation premium shall be held in abeyance.
    4. If the employer fails to obtain workers' compensation insurance coverage as ordered by the administrator or administrator's designee within the required time period, all monetary penalties, totaling two and one-half (2 ½) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of two thousand dollars ($2,000) or two and one-half (2 ½) times the average yearly workers' compensation premium, shall be immediately due and payable.
  2. The administrator shall notify the secretary of state:
    1. When any employer engaged in the construction industry, as defined in § 50-6-901, fails to secure payment of compensation, as required by this chapter; and
    2. When any employer engaged in the construction industry, as defined in § 50-6-901, who has failed to secure payment of compensation, as required by this chapter, has secured payment of such compensation.
    1. In the event an employer engaged in the construction industry, as defined in § 50-6-901, fails to comply with the requirements of this chapter, by failing to secure payment two (2) or more times within a five-year period, then the administrator shall issue a monetary penalty against the employer that is the greater of three thousand dollars ($3,000) or three (3) times the average yearly workers' compensation premium for each second or subsequent violation.
      1. In the event an employer engaged in the construction industry, as defined in § 50-6-901, fails to comply with the requirements of this chapter, by failing to secure payment two (2) or more times within a five-year period, such employer shall be permanently prohibited from obtaining an exemption pursuant to part 9 of this chapter and the administrator shall notify the secretary of state of such prohibition.
      2. For purposes of subdivision (h)(2)(A), “such employer” includes any construction services provider, as defined by § 50-6-901, who applies for or has ever received a workers' compensation exemption pursuant to part 9 of this chapter using the same federal employer identification number as the employer who fails to comply with the requirements of this chapter.
    1. The administrator has the authority to seek an injunction in the chancery court of Davidson County to prohibit an employer from operating its business in any way until the employer has complied with an order by the administrator or the administrator's designee to obtain workers' compensation insurance coverage.
    2. In the event an employer fails to comply with the requirements of this chapter, by failing to secure payment of compensation on a second or subsequent occasion, the administrator shall have the authority to seek an injunction in the chancery court of Davidson County to prohibit the employer from operating its business in any way until the employer provides proof that it has complied with this chapter by securing payment of compensation.
  3. The employer shall have the right to appeal, pursuant to the Uniform Administrative Procedures Act, compiled at title 4, chapter 5, any decision made by or order issued by the administrator or the administrator's designee pursuant to this section.
    1. A successor in interest, as defined in § 50-6-411(d)(1), is liable for any penalty issued under this section against a construction services provider.
    2. A person or entity designated as a successor in interest may appeal a penalty assessment by requesting a contested case hearing pursuant to subsection (e).
    3. The administrator or the administrator's designee may waive a penalty against a successor in interest for good cause.

Acts 1992, ch. 900, § 23; 1999, ch. 520, § 41; 2000, ch. 972, § 4; 2010, ch. 1149, §§ 8-12; 2014, ch. 903, § 8; 2015, ch. 341, §§ 15, 17; 2020, ch. 682, § 6.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which amended this section. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2010, ch. 1149, § 20(c) provided, in part, that § 50-6-412(h)(2) shall apply only to a failure to secure payment for compensation that occurs on or after March 1, 2012.

Acts 2020, ch. 682, § 7 provided that the act, which amended this section, applies to penalties assessed on or after June 15, 2020.

Amendments. The 2014 amendment rewrote the section which read: “(a) The commissioner of labor and workforce development or the commissioner's designee has the authority to issue a subpoena to require an employer doing business in the state to produce any and all books, documents or other tangible things that may be relevant to or reasonably calculated to lead to the discovery of relevant information necessary to determine whether an employer is subject to this chapter, or has secured payment of compensation pursuant to this chapter, and to determine the amount of any monetary penalty that is required to be assessed against an employer for failure to secure payment of compensation pursuant to this chapter.“(b)(1) All monetary penalties assessed pursuant to this section that are based on the average yearly workers' compensation premium shall be calculated by utilizing the appropriate assigned risk plan advisory prospective loss cost and multiplier for the employer as of the date of determination that the employer is subject to this chapter, and has not secured payment of compensation pursuant to this chapter.“(2) If the commissioner or commissioner's designee determines the period of noncompliance with this chapter, is less than one (1) year, any assessed monetary penalty shall be prorated; however, the monetary penalty shall not be less than an amount equal to one (1) month's premium of the average yearly workers' compensation premium for the employer based on the appropriate assigned risk plan advisory prospective loss cost and multiplier.“(3) If any monetary penalty assessed against an employer is held in abeyance pursuant to this section, the period of abeyance shall be two (2) years. Any abated penalty becomes void upon the expiration of the two-year period; provided, that the employer remained subject to this chapter, during the two-year period and continuously secured payment of compensation as required by law. Any abated penalty becomes voidable, if within the two-year period, the employer provides notice to the commissioner that the employer is no longer subject to this chapter and upon concurrence of the commissioner that the employer is no longer subject to this chapter, the penalty shall become void. Any abated penalty shall become due and payable immediately if, within the two-year period, the employer continues to be subject to this chapter and fails to secure payment of compensation as required by law.“(4) The commissioner shall advise an employer of the amount of any assessed monetary penalty in writing and shall include the date on which the monetary penalty shall be due and payable.“(c)(1) When the records of the department of labor and workforce development indicate, or when the department's investigation of an employer indicates, that an employer is subject to this chapter, and has failed to secure payment of compensation as required by this chapter, the department shall so notify the employer by certified letter, return receipt requested.“(2) The department shall require the employer to provide, within ten (10) days of the receipt of the certified letter, excluding Saturdays, Sundays and holidays, either proof that the employer had secured payment of compensation as required by this chapter or a verifiable sworn affidavit, with supporting documentation, that the employer is exempt from this chapter.“(3) The certified letter shall also advise the employer of the monetary penalties that may be assessed against the employer if it is determined by the commissioner or the commissioner's designee that the employer has failed to secure payment of compensation as required by this chapter and shall advise the employer of the criminal penalties to which the employer may be subject for the failure.“(d)(1) If the employer responds to the certified letter within ten (10) days of its receipt, excluding Saturdays, Sundays, and holidays, and it is determined by the commissioner or the commissioner's designee that the employer has secured payment of compensation as required by this chapter, or that the employer is not subject to this chapter, no monetary penalty shall be assessed.“(2) If the employer responds to the certified letter within ten (10) days of its receipt, excluding Saturdays, Sundays, and holidays, and it is determined by the commissioner or the commissioner's designee that the employer is subject to this chapter and that the employer has secured the payment of compensation since the date of receipt of the certified letter, the commissioner shall issue a monetary penalty to the employer equal to one and one half (1 1/2) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of one thousand dollars ($1,000) or one and one half (1 1/2) times the average yearly workers' compensation premium.“(e)(1) If the employer fails to respond to the certified letter within ten (10) days of its receipt, excluding Saturdays, Sundays, and holidays, or the employer responds to the certified letter but does not provide a verifiable sworn affidavit of exemption, the commissioner or the commissioner's designee shall issue a show cause order and notice of hearing, which shall be sent to the employer by certified mail, return receipt requested, to the employer's last known address, according to department records. If either of these circumstances occur, the commissioner shall assess two (2) penalties. The first monetary penalty shall be equal to one and one half (1 1/2) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of one thousand dollars ($1,000) or one and one half (1 1/2) times the average yearly workers' compensation premium. The second monetary penalty shall be equal to the average yearly workers' compensation premium for such employer.“(2) The show cause order and notice of hearing shall notify the employer of all monetary penalties that have been assessed against the employer and the criminal penalties to which the employer may be subject.“(3) The show cause order and notice of hearing shall advise the employer it must appear at the show cause hearing before the commissioner or the commissioner's designee to show cause why it should not be held to be in violation of this chapter, by its failure to secure compensation as required by this chapter.“(4) The employer shall have the burden of proof at the show cause hearing and shall be required to produce documentary evidence that the employer is not subject to this chapter, or that the employer was in compliance with this chapter.“(5) The department shall schedule the show cause hearing in a timely manner, not to exceed sixty (60) days from the date of the employer's receipt of the first certified letter sent pursuant to subdivision (c)(1).“(f)(1) If the commissioner or the commissioner's designee determines at the show cause hearing that the employer is not subject to this chapter, or that the employer had secured and continues to secure payment of compensation as required by this chapter, all monetary penalties shall be void.“(2) If the employer appears at the show cause hearing and it is determined by the commissioner or the commissioner's designee that the employer is subject to this chapter and that the employer has come into compliance with this chapter by securing payment of compensation prior to the date of the show cause hearing, the first monetary penalty equal to one and one half (1 1/2) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of one thousand dollars ($1,000) or one and one half (1 1/2) times the average yearly workers' compensation premium shall be due; however, the second monetary penalty equal to the average yearly workers' compensation premium shall be held in abeyance.“(3) If the employer appears at the show cause hearing and it is determined by the commissioner or the commissioner's designee that the employer is subject to this chapter and that the employer has failed to secure payment of compensation as required by this chapter, the employer shall be ordered to procure workers' compensation insurance coverage and to provide the department with proof of coverage within five (5) days of the issuance of the order, excluding Saturdays, Sundays and holidays. If the employer obtains workers' compensation insurance coverage and provides the department with proof of coverage as ordered, the first monetary penalty equal to one and one half (1 1/2) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of one thousand dollars ($1,000) or one and one half (1 1/2) times the average yearly workers' compensation premium shall be due; however, the second monetary penalty equal to the average yearly workers' compensation premium shall be held in abeyance.“(4) If the employer fails to obtain workers' compensation insurance coverage as ordered by the commissioner or commissioner's designee within the required time period, all monetary penalties, totaling two and one half (2 1/2) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of two thousand dollars ($2,000) or two and one half (2 1/2) times the average yearly workers' compensation premium, shall be immediately due and payable.“(g) The commissioner shall notify the secretary of state when any employer engaged in the construction industry:“(1) Fails to secure payment of compensation, as required by this chapter; and“(2) When any employer who has failed to secure payment of compensation, as required by this chapter, has secured payment of such compensation.“(h)(1) In the event an employer engaged in the construction industry, as defined in § 50-6-901, fails to comply with the requirements of this chapter, by failing to secure payment two (2) or more times within a five-year period, then the commissioner shall issue a monetary penalty against the employer that is the greater of three thousand dollars ($3,000) or three (3) times the average yearly workers' compensation premium for each second or subsequent violation.“(2)(A) In the event an employer engaged in the construction industry, as defined in § 50-6-901, fails to comply with the requirements of this chapter, by failing to secure payment two (2) or more times within a five-year period, such employer shall be permanently prohibited from obtaining an exemption pursuant to part 9 of this chapter and the commissioner shall notify the secretary of state of such prohibition.“(B) For purposes of subdivision (h)(2)(A), "such employer" includes any construction services provider, as defined by § 50-6-901, who applies for or has ever received a workers' compensation exemption pursuant to part 9 of this chapter using the same federal employer identification number as the employer who fails to comply with the requirements of this chapter.“(i)(1) The commissioner has the authority to seek an injunction in the chancery court of Davidson County to prohibit an employer from operating its business in any way until the employer has complied with an order by the commissioner or the commissioner's designee to obtain workers' compensation insurance coverage.“(2) In the event an employer shall fail to comply with the requirements of this chapter, by failing to secure payment of compensation on a second or subsequent occasion, the commissioner shall have the authority to seek an injunction in the chancery court of Davidson County to prohibit the employer from operating its business in any way until the employer provides proof that it has complied with this chapter by securing payment of compensation.“(j) The employer shall have the right to appeal, pursuant to the Uniform Administrative Procedures Act, compiled at title 4, chapter 5, any decision made by or order issued by the commissioner or the commissioner's designee pursuant to this section.”

The 2015 amendment substituted “bureau” for “division” throughout and substituted “bureau's” for “division's” in (c)(1) and (e)(1).

The 2020 amendment added (k).

Effective Dates. Acts 2014, ch. 903, § 14. May 13, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2020, ch. 682, § 7, June 15, 2020.

50-6-413. [Repealed.]

Acts 1992, ch. 900, § 27; 2015, ch. 341, § 15; repealed by Acts 2018, ch. 709, § 1, effective April 12, 2018.

Compiler's Notes. Former § 50-6-413 concerned requirement for and authority of in-state claims office or adjuster.

50-6-414. Experience modification factors — Notification of employers — Failure to give timely notification.

  1. Any employer who is assigned an experience modification factor for the purpose of determining its workers' compensation premium shall be sent annually, at no charge to the employer, a copy of any information relative to its experience modification factor that is available to an insurance company.
  2. If the experience modification factor notification is not received by the employer prior to the policy renewal date, or the policy anniversary date if different, the experience modification factor shall not be used for premium purposes if its use results in a higher premium for the employer. The mailing of the experience modification factor worksheet shall be sufficient proof of notice, provided the mailing is by certified mail, return receipt requested.

Acts 1993, ch. 370, § 1; 2000, ch. 852, § 6.

50-6-415. Data collection — Reporting data.

    1. The administrator of the bureau of workers' compensation has the same authority as the commissioner of commerce and insurance to request and obtain relevant information on workers' compensation claims. All workers' compensation insurers or their designated agents, self insurers and the department of commerce and insurance shall report claims information and other relevant workers' compensation data necessary to determine and analyze costs of the system to the administrator of the bureau of workers' compensation or to the agents as the administrator may designate. The administrator may promulgate all reasonable rules and regulations necessary to implement this section in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
    2. In promulgating rules concerning data collection, the administrator of the bureau of workers' compensation shall include appropriate elements of the Detailed Claim Information Reporting Model Regulation for Workers' Compensation Insurance issued by the National Association of Insurance Commissioners, and other information the administrator deems necessary. The administrator shall also consult with the advisory council on workers' compensation in defining the information needed to permit management of the system. The administrator shall also report to the commerce and labor committee of the senate and the consumer and human resources committee of the house of representatives at the request of the chairs of the committees.
  1. The bureau of workers' compensation shall gather, and has the duty to analyze and report, information relevant to the functioning of the workers' compensation system to the advisory council on workers' compensation, the general assembly and the governor. The bureau shall respond to information requests concerning workers' compensation issues from the advisory council on workers' compensation, the general assembly and the governor.
  2. The administrator of the workers' compensation bureau shall enforce requests pursuant to this section in the same manner and with the same authority as the commissioner of commerce and insurance possesses with respect to violations of this part and title 56. The administrator shall also notify the principal corporate office of any insurer of any refusal to comply with such requests. The administrator's enforcement authority under this subsection (c) applies only to the administrator's efforts to obtain relevant data as provided in subsections (a) and (b).

Acts 1996, ch. 944, § 24; 1998, ch. 1024, § 4; 1999, ch. 520, § 41; 2011, ch. 410, § 10(e); 2013, ch. 236, § 31; 2013, ch. 282, § 1; 2015, ch. 341, § 15.

Compiler's Notes. Acts 1996, ch. 944, which enacted this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, substituted “administrator of the division of workers' compensation” for “commissioner of labor and workforce development” in (a)(1) and (a)(2), substituted “administrator” for “commissioner” in (a)(1), (a)(2), and (c); and substituted “administrator of the workers' compensation division” for “commissioner of labor and workforce development” in (c).

The 2015 amendment substituted “bureau” for “division” throughout.

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

50-6-415. Data collection — Reporting data. [Applicable to injuries occurring prior to July 1, 2014.]

    1. The commissioner of labor and workforce development has the same authority as the commissioner of commerce and insurance to request and obtain relevant information on workers' compensation claims. All workers' compensation insurers or their designated agents, self insurers and the department of commerce and insurance shall report claims information and other relevant workers' compensation data necessary to determine and analyze costs of the system to the commissioner of labor and workforce development or to the agents as the commissioner may designate. The commissioner may promulgate all reasonable rules and regulations necessary to implement this section in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
    2. In promulgating rules concerning data collection, the commissioner of labor and workforce development shall include appropriate elements of the Detailed Claim Information Reporting Model Regulation for Workers' Compensation Insurance issued by the National Association of Insurance Commissioners, and other information the commissioner deems necessary. The commissioner shall also consult with the advisory council on workers' compensation in defining the information needed to permit management of the system. The commissioner shall also report to the commerce and labor committee of the senate and the consumer and human resources committee of the house of representatives at the request of the chairs of the committees.
  1. The division of workers' compensation shall gather, and has the duty to analyze and report, information relevant to the functioning of the workers' compensation system to the advisory council on workers' compensation, the general assembly and the governor. The division shall respond to information requests concerning workers' compensation issues from the advisory council on workers' compensation, the general assembly and the governor.
  2. The commissioner of labor and workforce development shall enforce requests pursuant to this section in the same manner and with the same authority as the commissioner of commerce and insurance possesses with respect to violations of this part and title 56. The commissioner shall also notify the principal corporate office of any insurer of any refusal to comply with such requests. The commissioner's enforcement authority under this subsection (c) applies only to the commissioner's efforts to obtain relevant data as provided in subsections (a) and (b).

Acts 1996, ch. 944, § 24; 1998, ch. 1024, § 4; 1999, ch. 520, § 41; 2011, ch. 410, § 10(e); 2013, ch. 236, § 31.

Compiler's Notes. Acts 1996, ch. 944, which enacted this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

50-6-416. [Repealed.]

Compiler's Notes. Former § 50-6-416 (Acts 1996, ch. 944, § 26), concerning payment of disability and medical benefits, was repealed by Acts 1997, ch. 533, § 6.

50-6-417. Dispute of experience modification factor.

In cases where an employer disputes an experience modification factor assigned to the employer, the insurer shall notify the employer of the employer's right to submit a request for review and to appeal to the commissioner of commerce and insurance pursuant to § 56-5-109(b).

Acts 1996, ch. 944, § 27.

Compiler's Notes. Acts 1996, ch. 944, which enacted this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Section 56-5-309 referenced in this section was renumbered as 56-5-109 by the authority of the code commission  in 2016.

50-6-418. Rating plans based on drug-free workplace program participation.

    1. The department of commerce and insurance shall approve rating plans for workers' compensation insurance that give specific identifiable consideration in the setting of rates to employers that implement a drug-free workplace program pursuant to rules adopted by the bureau of workers' compensation of the department of labor and workforce development. The plans must take effect January 1, 1997, must be actuarially sound, and must state the savings anticipated to result from the drug testing. The credit shall be at least five percent (5%) unless the commissioner of commerce and insurance determines that five percent (5%) is actuarially unsound.
    2. The commissioner is also authorized to develop a schedule of premium credits for workers' compensation insurance for employers who have safety programs that attain certain criteria for safety programs. The commissioner shall consult with the administrator of the bureau of workers' compensation in setting the criteria.
  1. The department of commerce and insurance shall apply the drug-free workplace program credit separately to each individual company for an employer having more than one (1) company under one (1) workers' compensation insurance policy. However, no credit given to an individual company may be combined with any credit given to any other company of the common employer or to the common employer itself.

Acts 1996, ch. 944, § 51; 1999, ch. 520, § 41; 2005, ch. 390, § 14; 2013, ch. 282, § 1; 2015, ch. 341, § 15.

Compiler's Notes. Acts 1996, ch. 944, which enacted this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Amendments. The 2013 amendment, effective July 1, 2014, substituted “administrator of the division of workers' compensation” for “commissioner of labor and workforce development” in the second sentence of (a)(2).

The 2015 amendment substituted “bureau” for “division” in the first sentence of (a)(1) and in the second sentence of (a)(2).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-418. Rating plans based on drug-free workplace program participation. [Applicable to injuries occurring prior to July 1, 2014.]

    1. The department of commerce and insurance shall approve rating plans for workers' compensation insurance that give specific identifiable consideration in the setting of rates to employers that implement a drug-free workplace program pursuant to rules adopted by the division of workers' compensation of the department of labor and workforce development. The plans must take effect January 1, 1997, must be actuarially sound, and must state the savings anticipated to result from the drug testing. The credit shall be at least five percent (5%) unless the commissioner of commerce and insurance determines that five percent (5%) is actuarially unsound.
    2. The commissioner is also authorized to develop a schedule of premium credits for workers' compensation insurance for employers who have safety programs that attain certain criteria for safety programs. The commissioner shall consult with the commissioner of labor and workforce development in setting the criteria.
  1. The department of commerce and insurance shall apply the drug-free workplace program credit separately to each individual company for an employer having more than one (1) company under one (1) workers' compensation insurance policy. However, no credit given to an individual company may be combined with any credit given to any other company of the common employer or to the common employer itself.

Acts 1996, ch. 944, § 51; 1999, ch. 520, § 41; 2005, ch. 390, § 14.

Compiler's Notes. Acts 1996, ch. 944, which enacted this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

50-6-419. Rules governing settlement of workers' compensation claims.

  1. Notwithstanding any other provision of this part or of title 56 to the contrary, in order to assure that injured employees are treated fairly and to assure that claims are handled in an appropriate and uniform manner, the administrator of the bureau of workers' compensation shall set standards by rule governing the adjustment and settlement of workers' compensation claims by insurance carriers, self-insured employers, and any entity acting on behalf of an insurance carrier or self-insured employer in the resolution of claims brought pursuant to this title. The standards may include, but are not limited to, standards governing contact with an employee after notice of injury has been given, the processing of claims and procedures for making an offer of settlement.
  2. The administrator shall promulgate rules and regulations to effectuate the purposes of this section. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
    1. The administrator may enforce the standards described in this section, and any rules promulgated pursuant to this section, through assessment of civil penalties pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, against any entity employing individuals who adjust workers' compensation claims under this title. Such penalties may be in an amount not less than fifty dollars ($50.00) nor more than five thousand dollars ($5,000) per violation. Each separate act shall constitute a separate violation and may subject the entity to assessment of additional civil penalties.
    2. The administrator may also notify:
      1. The department of commerce and insurance of any penalties assessed by the bureau pursuant to this section; and
      2. The principal corporate office of any insurer of any violations of the standards or rules described in this section.

Acts 1996, ch. 944, § 53; 1999, ch. 520, § 41; 2013, ch. 282, § 1; 2015, ch. 341, § 15; 2016, ch. 803, §§ 2, 3.

Code Commission Notes.

Former subsection (d), concerning the development of standards for the adjustment and settlement of workers' compensation claims by insurance carriers and self-insured employers, was deleted as obsolete by the code commission in 2005.

Compiler's Notes. Acts 1996, ch. 944, which enacted this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Acts 2016, ch. 803, § 4 provided that the act, which amended this section, shall apply to actions committed on or after January 1, 2017.

The text of this section as was effective for injuries occurring, and actions committed, on or after July 1, 2014, but prior to January 1, 2017, is as follows:

“(a) Notwithstanding any other provision of this part or of title 56 to the contrary, in order to assure that injured employees are treated fairly and to assure that claims are handled in an appropriate and uniform manner, the administrator of the bureau of workers' compensation shall set standards by rule governing the adjustment and settlement of workers' compensation claims by insurance carriers and self-insured employers. The standards may include, but are not limited to, standards governing contact with an employee after notice of injury has been given, the processing of claims and procedures for making an offer of settlement.”

“(b) The administrator shall promulgate rules and regulations to effectuate the purposes of this section. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.”

“(c)The administrator of the bureau of workers' compensation shall enforce standards adopted pursuant to this section in the same manner and with the same authority as the commissioner of commerce and insurance possesses with respect to violations of this part and title 56. The administrator shall also notify the principal corporate office of any insurer of any violations of the standards.”

Amendments. The 2013 amendment, effective July 1, 2014,  substituted “administrator of the division of workers' compensation” for “commissioner of labor and workforce development” in the first sentence in (a) and the first sentence in (c); and substituted “administrator” for “commissioner” in (b) and in the second sentence in (c).

The 2015 amendment substituted “bureau” for “division” in the first sentence in (a) and in the first sentence in (c).

The 2016 amendment, effective January 1, 2017, substituted “insurance carriers, self-insured employers, and any entity acting on behalf of an insurance carrier or self-insured employer in the resolution of claims brought pursuant to this title” for “insurance carriers and self-insured employers” at the end of the first sentence in (a); and rewrote (c) which read: “(c) The administrator of the bureau of workers' compensation shall enforce standards adopted pursuant to this section in the same manner and with the same authority as the commissioner of commerce and insurance possesses with respect to violations of this part and title 56. The administrator shall also notify the principal corporate office of any insurer of any violations of the standards.”

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2016, ch. 803, § 4. January 1, 2017; provided that for purposes of promulgating rules, the act took effect April 14, 2016.

50-6-419. Rules governing settlement of workers' compensation claims. [Applicable to injuries occurring prior to July 1, 2014.]

  1. Notwithstanding any other provision of this part or of title 56 to the contrary, in order to assure that injured employees are treated fairly and to assure that claims are handled in an appropriate and uniform manner, the commissioner of labor and workforce development shall set standards by rule governing the adjustment and settlement of workers' compensation claims by insurance carriers and self-insured employers. The standards may include, but are not limited to, standards governing contact with an employee after notice of injury has been given, the processing of claims and procedures for making an offer of settlement.
  2. The commissioner shall promulgate rules and regulations to effectuate the purposes of this section. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  3. The commissioner of labor and workforce development shall enforce standards adopted pursuant to this section in the same manner and with the same authority as the commissioner of commerce and insurance possesses with respect to violations of this part and title 56. The commissioner shall also notify the principal corporate office of any insurer of any violations of the standards.

Acts 1996, ch. 944, § 53; 1999, ch. 520, § 41.

Code Commission Notes.

Former subsection (d), concerning the development of standards for the adjustment and settlement of workers' compensation claims by insurance carriers and self-insured employers, was deleted as obsolete by the code commission in 2005.

Compiler's Notes. Acts 1996, ch. 944, which enacted this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

50-6-420. Legislative intent.

It is the intent of the general assembly that upon the filing of a claim pursuant to this chapter, the insurer is encouraged to provide semi-annual reports to the employer, at no cost to the employer, regarding the status of the claim.

Acts 2004, ch. 962, § 44.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during such fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.
    1. Employer name and business address;
    2. Workers’ compensation insurance carrier name and business address; and
    3. Workers' compensation insurance policy number, policy effective date, policy expiration date, policy cancellation date, and policy reinstatement date.

50-6-421. Requesting and obtaining information on employer workers’ compensation insurance policies to ensure compliance with law — Confidentiality — What constitutes public record.

The administrator of the bureau of workers' compensation may request and obtain information regarding employer workers’ compensation insurance policies in order to ensure compliance with the law. Except as otherwise provided in subsection (b), any information relating to workers’ compensation insurance policies obtained by the administrator pursuant to this subsection (a) shall be deemed confidential and shall not constitute a public record, as defined in § 10-7-503; provided, such information may be used by any state agency, or vendor designated by the state, for the purpose of ensuring compliance with the law.

The following information obtained by the administrator pursuant to subsection (a) shall constitute a public record, as defined in § 10-7-503, and shall be open for personal inspection by any citizen of this state:

Acts 2013, ch. 50, § 1; 2013, ch. 282, § 1; 2015, ch. 341, § 15; 2015, ch. 345, § 1.

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, substituted “administrator of the division of workers' compensation” for “commissioner of labor and workforce development” at the beginning of (a); and substituted “administrator” for “commissioner” in the second sentence of (a) and in the introductory paragraph of (b).

The 2015 amendment by ch. 341, effective May 4, 2015, substituted “bureau” for “division” at the beginning of (a).

The 2015 amendment by ch. 345, effective May 4, 2015, rewrote (b)(3) which read: “Workers’ compensation insurance policy number, policy effective date and policy expiration date.”

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2015, ch. 345, § 2. May 4, 2015.

Cross-References. Confidentiality of public records, § 10-7-504.

Attorney General Opinions. The date that a workers’ compensation policy is canceled is not a “policy expiration date” under T.C.A. § 50-6-421(b) and is therefore confidential.  OAG 14-11, 2014 Tenn. AG LEXIS 12 (1/21/14).

50-6-421. Requesting and obtaining information on employer workers' compensation insurance policies to ensure compliance with law — Confidentiality — What constitutes public record. [Applicable to injuries occurring prior to July 1, 2014.]

  1. The commissioner of labor and workforce development may request and obtain information regarding employer workers' compensation insurance policies in order to ensure compliance with the law. Except as otherwise provided in subsection (b), any information relating to workers' compensation insurance policies obtained by the commissioner pursuant to this subsection (a) shall be deemed confidential and shall not constitute a public record, as defined in § 10-7-503; provided, such information may be used by any state agency, or vendor designated by the state, for the purpose of ensuring compliance with the law.
  2. The following information obtained by the commissioner pursuant to subsection (a) shall constitute a public record, as defined in § 10-7-503, and shall be open for personal inspection by any citizen of this state:
    1. Employer name and business address;
    2. Workers' compensation insurance carrier name and business address; and
    3. Workers' compensation insurance policy number, policy effective date and policy expiration date.

Acts 2013, ch. 50, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

Attorney General Opinions. The date that a workers’ compensation policy is canceled is not a “policy expiration date” under T.C.A. § 50-6-421(b) and is therefore confidential.  OAG 14-11, 2014 Tenn. AG LEXIS 12 (1/21/14).

Part 5
Safe Employment Practices

50-6-501. Establishment of safety committees — Reporting by insurance companies — Civil penalty.

  1. In order to promote health and safety in places of employment in this state, every public or private employer that is subject to this chapter, shall establish and administer a safety committee in accordance with rules adopted pursuant to § 50-6-502, if the administrator of the workers' compensation bureau finds that the employer has an experience modification factor or rate applied to the premium greater than or equal to one and twenty hundredths (1.20).
  2. In making determinations under subsection (a), the administrator of the workers' compensation bureau  shall utilize the most recent statistics regarding experience modification rates.
    1. Every insurance company authorized to write workers' compensation insurance shall submit its modification factors or rates for each of its workers' compensation insureds to the commissioner of commerce and insurance, when requested by the commissioner. On request from the administrator of the workers' compensation bureau, the commissioner of commerce and insurance shall provide the bureau  of workers' compensation with the information.
    2. The administrator of the workers' compensation bureau  shall establish safety committee requirements for self-insured employers pursuant to rules promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
    3. The commissioner of commerce and insurance may assess a civil penalty of up to two thousand dollars ($2,000) per incident for failure to comply with subdivision (c)(1).

Acts 1992, ch. 900, § 5; 1999, ch. 520, § 41; 2005, ch. 390, § 13; 2013, ch. 282, § 1; 2015, ch. 341, § 15.

Amendments. The 2013 amendment, effective July 1, 2014,  substituted “administrator of the workers' compensation division” for “commissioner of labor and workforce development” in (a), (b), in the second sentence of (c)(1), and in (c)(2).

The 2015 amendment substituted “bureau” for “division” in (a) and (c).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-501. Establishment of safety committees — Reporting by insurance companies — Civil penalty. [Applicable to injuries occurring prior to July 1, 2014.]

  1. In order to promote health and safety in places of employment in this state, every public or private employer that is subject to this chapter, shall establish and administer a safety committee in accordance with rules adopted pursuant to § 50-6-502, if the commissioner of labor and workforce development finds that the employer has an experience modification factor or rate applied to the premium greater than or equal to one and twenty hundredths (1.20).
  2. In making determinations under subsection (a), the commissioner of labor and workforce development shall utilize the most recent statistics regarding experience modification rates.
    1. Every insurance company authorized to write workers' compensation insurance shall submit its modification factors or rates for each of its workers' compensation insureds to the commissioner of commerce and insurance, when requested by the commissioner. On request from the commissioner of labor and workforce development, the commissioner of commerce and insurance shall provide the department of labor and workforce development with the information.
    2. The commissioner of labor and workforce development shall establish safety committee requirements for self-insured employers pursuant to rules promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
    3. The commissioner of commerce and insurance may assess a civil penalty of up to two thousand dollars ($2,000) per incident for failure to comply with subdivision (c)(1).

Acts 1992, ch. 900, § 5; 1999, ch. 520, § 41; 2005, ch. 390, § 13.

Collateral References.

Validity, construction, and application of provisions of workers'  compensation act for additional compensation because of failure to comply with specific requirement of statute or regulation by public for protection of workers. 31 A.L.R.6th 199.

50-6-502. Rules governing committees — Duties of committees — Training — Operation under collective bargaining agreement.

  1. In carrying out § 50-6-501, the administrator of the workers' compensation bureau shall promulgate rules that include, but are not limited to, provisions:
    1. Prescribing the membership of the committees to ensure equal numbers of hourly employees and employer representatives as well as specifying the frequency of meetings;
    2. Requiring employers to make adequate written records of each meeting and to maintain the records subject to inspection by Tennessee occupational safety and health administration representatives; and
    3. Requiring employers to compensate employee representatives on safety committees at the regular hourly wage while the employees are engaged in safety committee training or are attending safety committee meetings.
  2. The duties and functions of the safety committee shall include, but are not limited to:
    1. Assisting in establishing procedures for workplace safety inspections by the committee;
    2. Assisting in establishing procedures for investigating all safety incidents, accidents, illnesses and deaths; and
    3. Assisting in evaluating accident and illness prevention programs.
  3. The employer shall provide training for safety committee members in their duties and responsibilities provided in subsection (b).
  4. An employer operating under a collective bargaining agreement that contains provisions regulating the formation and operation of a safety committee that meets or exceeds the minimum requirements of this section and § 50-6-501 may apply to the administrator of the workers' compensation bureau for a determination that the employer meets the requirements of this section and § 50-6-501.

Acts 1992, ch. 900, § 5; 1999, ch. 520, § 41; 2013, ch. 282, § 1; 2015, ch. 341, § 15.

Amendments. The 2013 amendment, effective July 1, 2014,  substituted “administrator of the workers' compensation division” for “commissioner of labor and workforce development” in (a) and (d).

The 2015 amendment substituted “bureau” for “division” in (a) and (d).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-502. Rules governing committees — Duties of committees — Training — Operation under collective bargaining agreement. [Applicable to injuries occurring prior to July 1, 2014.]

  1. In carrying out § 50-6-501, the commissioner of labor and workforce development shall promulgate rules that include, but are not limited to, provisions:
    1. Prescribing the membership of the committees to ensure equal numbers of hourly employees and employer representatives as well as specifying the frequency of meetings;
    2. Requiring employers to make adequate written records of each meeting and to maintain the records subject to inspection by Tennessee occupational safety and health administration representatives; and
    3. Requiring employers to compensate employee representatives on safety committees at the regular hourly wage while the employees are engaged in safety committee training or are attending safety committee meetings.
  2. The duties and functions of the safety committee shall include, but are not limited to:
    1. Assisting in establishing procedures for workplace safety inspections by the committee;
    2. Assisting in establishing procedures for investigating all safety incidents, accidents, illnesses and deaths; and
    3. Assisting in evaluating accident and illness prevention programs.
  3. The employer shall provide training for safety committee members in their duties and responsibilities provided in subsection (b).
  4. An employer operating under a collective bargaining agreement that contains provisions regulating the formation and operation of a safety committee that meets or exceeds the minimum requirements of this section and § 50-6-501 may apply to the commissioner of labor and workforce development for a determination that the employer meets the requirements of this section and § 50-6-501.

Acts 1992, ch. 900, § 5; 1999, ch. 520, § 41.

50-6-503. [Repealed.]

Compiler's Notes. Former § 50-6-503 (Acts 1992, ch. 900, § 5; 1999, ch. 520, § 41), concerning the safe employment education and training advisory committee, was repealed by Acts 2005, ch. 369, § 2, effective July 1, 2005.

50-6-504. [Repealed.]

Compiler's Notes. Former § 50-6-504 (Acts 1992, ch. 900, § 5; 1996, ch. 944, § 52; 1999, ch. 520, § 41), concerning occupational safety and health grants, was repealed by Acts 2005, ch. 369, § 2, effective July 1, 2005.

50-6-505. Civil liability of labor organization.

When an employee incurs an injury compensable under this chapter, the discussion or furnishing, or failure to discuss or furnish, or failure to enforce any safety or health provision, shall not subject a labor organization representing the injured employee to any civil liability for the injury.

Acts 1992, ch. 900, § 5.

Part 6
Workers' Compensation Insurance Fund Act of 1992

50-6-601. Short title — Establishment of competitive state workers' compensation insurance fund.

  1. This part shall be known and may be cited as the “Workers' Compensation Insurance Fund Act of 1992.”
    1. There shall be established a competitive state workers' compensation insurance fund to insure employers under this chapter.
    2. This fund shall operate as a nonprofit insurance company and is subject to all requirements of law and regulation as any other insurer offering workers' compensation insurance in Tennessee pursuant to title 56 and this chapter.
    3. This fund shall act in addition to, and not as a substitute for, an assigned risk pool.
    4. The fund shall be required to maintain an adequate rate and any assessment for accumulated liabilities shall be made only against those insured within the state workers' compensation insurance fund. No assessments shall be made against or for the Tennessee Guaranty Association, as described in title 56, chapter 12, and no assessment shall be made against a private insurer or any entity authorized under § 50-6-405(c), not participating in the state workers' compensation insurance fund. The policies written by the fund shall be assessable against the policyholders.

Acts 1992, ch. 900, § 26; 1994, ch. 979, § 2.

50-6-602. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Board” means the board of directors of the competitive state compensation insurance fund;
  2. “Fund” means the competitive state compensation insurance fund; and
  3. “Personal injury” or “injury” has the meaning given to it in § 50-6-102.

Acts 1992, ch. 900, § 26; 1994, ch. 979, § 3.

50-6-603. Purpose and organization of fund.

The fund shall be created as a nonprofit independent public corporation for the purpose of insuring employers against liability for personal injuries for which their employees may be entitled to benefits under this part. The fund shall be organized as a domestic insurance company.

Acts 1992, ch. 900, § 26.

50-6-604. Board of directors — Members.

  1. In the event the commissioner of commerce and insurance elects to make the fund operational pursuant to § 56-5-114, the existing board of directors shall terminate and a new board shall be appointed within sixty (60) days of the election.
  2. The board of directors shall initially consist of seven (7) members who are knowledgeable concerning the workers' compensation system. The state treasurer shall be an ex officio member. Initially, the speakers of the senate and the house of representatives and the governor shall each appoint one (1) member for a two-year term and one (1) member for a three-year term. Each director shall hold office until a successor is appointed and qualifies. The board shall annually elect a chair from among its members and other officers it deems necessary for the performance of its duties.
    1. Once the fund is operational and the commissioner of commerce and insurance certifies it as a fund able to effectively operate under this part and title 56, then on the next scheduled expiration of board members' terms:
      1. The members shall be elected by policyholders; and
      2. The state treasurer shall, on expiration of the treasurer's term, cease to be a member of the board.
    2. The successor board shall consist of seven (7) members selected by policyholders for three-year terms.

Acts 1992, ch. 900, § 26; 1996, ch. 944, § 28.

50-6-605. Management of fund.

The management and control of the fund is vested solely in the board.

Acts 1992, ch. 900, § 26.

50-6-606. Powers of board.

    1. The board is vested with full power, authority, and jurisdiction over the fund.
    2. The board may perform all acts necessary or convenient in the exercise of any power, authority, or jurisdiction over the fund, either in the administration of the fund or in connection with the insurance business to be carried on by it under this part, as fully and completely as the governing body of a private insurance carrier to fulfill the objectives and intent of this part.
  1. The board may invest assets as permitted by § 56-3-402.

Acts 1992, ch. 900, § 26.

50-6-607. [Repealed.]

Compiler's Notes. Former § 50-6-607 (Acts 1992, ch. 900, § 26), concerning administrative control by the fund manager, was repealed by Acts 1994, ch. 979, § 4.

50-6-608. Nonliability of board members, officers or employees.

The members of the board and officers or employees of the fund shall not be liable personally, either jointly or severally, for any debt or obligation created or incurred by the fund.

Acts 1992, ch. 900, § 26.

50-6-609. Scope of insurance by fund.

The fund shall insure an employer against any workers' compensation claim arising primarily out of and in the course and scope of employment as fully as any other insurer.

Acts 1992, ch. 900, § 26; 2013, ch. 282, § 9.

Amendments. The 2013 amendment, effective July 1, 2014, inserted the words “primarily” and “and scope” in the middle of this section.

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

50-6-609. Scope of insurance by fund. [Applicable to injuries occurring prior to July 1, 2014.]

The fund shall insure an employer against any workers' compensation claim arising out of and in the course of employment as fully as any other insurer.

Acts 1992, ch. 900, § 26.

50-6-610. Powers of fund.

For purposes of exercising the specific powers granted in this part and carrying out the other purposes of this part, the fund may:

  1. Sue and be sued;
  2. Have a seal and alter it at will;
  3. Make, amend, and repeal rules relating to the conduct of the business of the fund;
  4. Enter into contracts relating to the administration of the fund;
  5. Rent, lease, buy, or sell property in its own name and may construct or repair buildings necessary to provide space for its operations;
  6. Declare a dividend when there is an excess of assets over liabilities, and minimum surplus requirements;
  7. Pay medical expenses, rehabilitation expenses, compensation due claimants of insured employers, pay salaries, and pay administrative and other expenses;
  8. Hire personnel and set salaries and compensation; and
  9. Perform all other functions and exercise all other powers of a domestic insurance company that are necessary, appropriate, or convenient to administer the fund.

Acts 1992, ch. 900, § 26.

50-6-611. [Repealed.]

Compiler's Notes. Former § 50-6-611 (Acts 1992, ch. 900, § 26), concerning the appointment and compensation of the fund manager, was repealed by Acts 1994, ch. 979, § 4.

50-6-612. [Repealed.]

Compiler's Notes. Former § 50-6-612 (Acts 1992, ch. 900, § 26), concerning the fund manager's official bond, was repealed by Acts 1994, ch. 979, § 4.

50-6-613. [Repealed.]

Compiler's Notes. Former § 50-6-613 (Acts 1992, ch. 900, § 26), concerning the powers and duties of the fund manager, was repealed by Acts 1994, ch. 979, § 4.

50-6-614. [Repealed.]

Compiler's Notes. Former § 50-6-614 (Acts 1992, ch. 900, § 26), concerning the state compensation account, was repealed by Acts 1994, ch. 979, § 4.

50-6-615. Property of fund — Fund employees.

All premiums and other money paid to the fund, all property and securities acquired through the use of money belonging to the fund, and all interest and dividends earned upon money belonging to the fund and deposited or invested by the fund are the sole property of the fund and shall be used exclusively for the operation and obligations of the fund. The money of the fund is not state property. The employees of the fund shall not be considered state employees.

Acts 1992, ch. 900, § 26.

50-6-616. Appropriations prohibited except as provided in § 50-6-621.

The fund shall not receive any state appropriation at any time other than as provided by § 50-6-621.

Acts 1992, ch. 900, § 26.

50-6-617. Fund not a state agency.

The fund shall not be considered a state agency for any purpose.

Acts 1992, ch. 900, § 26.

50-6-618. Rules for sale of coverage by agents.

Private independent insurance agents licensed to sell workers' compensation insurance in this state may sell insurance coverage for the fund according to rules adopted by the board. The board shall, by rule, also establish a schedule of commissions that the fund will pay for the services of an agent.

Acts 1992, ch. 900, § 26.

50-6-619. Annual report required.

The board shall submit an annual report to the governor and general assembly indicating the business done by the fund the previous year and containing a statement of the resources and liabilities of the fund.

Acts 1992, ch. 900, § 26; 1994, ch. 979, § 5.

Cross-References. Reporting requirements satisfied by notice to general assembly members of publication of report, § 3-1-114.

50-6-620. Contents of annual report.

The board shall annually report to the general assembly, governor, and the director of the division of state audit the operations of the fund up to that date. The report shall include, but not be limited to:

  1. The volume of premiums insured through the state fund and its share of the state workers' compensation insurance market;
  2. The percent division of premium dollars among various types of benefit payments and administrative costs for policies and claims under the state fund;
  3. The average rate of return enjoyed by the state fund on its invested assets;
  4. Recommendations concerning desirable changes in the state fund to promote its prompt and efficient administration of policies and claims;
  5. A recommendation to the general assembly and governor regarding the continued operation of the fund;
  6. A full report concerning reserve practices including any actuarial analysis of the funds reserved; and
  7. Any other information the director deems appropriate.

Acts 1992, ch. 900, § 26; 1994, ch. 979, § 5.

50-6-621. Bonds, appropriation for start-up costs.

The state is authorized to issue bonds in accordance with law or appropriate funds in the general appropriations act to the competitive state compensation insurance fund for start-up costs to be repaid pursuant to terms set by authorizing legislation for issuance of the bonds or appropriated funds. The start-up costs may be utilized by the fund to meet the reserve and capitalization requirements of the department of commerce and insurance. The funds set aside for this purpose shall be considered an admitted asset for regulatory purposes. The time for the fund repaying the appropriations may be extended by the funding board.

Acts 1992, ch. 900, § 26; 1994, ch. 979, § 1; 1995, ch. 448, § 1.

Code Commission Notes.

Former subsection (b), concerning the reversion to the general fund of unexpended funds appropriated for establishing to workers' compensation insurance fund, was deleted as obsolete by the code commission in 2005.

50-6-622. Start-up of operations.

The fund shall begin providing workers' compensation insurance coverage when the board determines that the fund is able to do so and all requirements under state law have been met. The fund shall not issue insurance policies to employers until the approval of the director of the division of state audit has been obtained.

Acts 1992, ch. 900, § 26; 1994, ch. 979, § 6.

50-6-623. Submission and review of organizational and operating plans.

Before the fund established by this part shall enter into any contract, except for consulting services, or issue any bonds, or incur any liability, the board of directors shall submit organizational and operating plans for the fund to a review committee for approval. The review committee shall consist of the administrator of the workers' compensation bureau, the commissioners of commerce and insurance, and finance and administration, the state treasurer, and the comptroller of the treasury. The review committee shall approve the operational and organizational plans if it determines the plans to be in accord with this part and to be fiscally sound and responsible. If the committee approves the plan, then the fund may become fully operational. If the committee does not approve the plan, then the committee shall make appropriate recommendations to the board of directors, governor, and the speakers of the senate and house of representatives concerning any deficiencies.

Acts 1992, ch. 900, § 26; 1994, ch. 979, § 7; 1999, ch. 520, § 41; 2013, ch. 282 § 1; 2015, ch. 341, § 15.

Amendments. The 2013 amendment, effective July 1, 2014, substituted “the administrator of the workers’ compensation division, the commissioners of commerce and insurance,” for “the commissioners of labor and workforce development, commerce and insurance,” in the second sentence.

The 2015 amendment substituted “bureau” for “division” in the second sentence.

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-623. Submission and review of organizational and operating plans. [Applicable to injuries occurring prior to July 1, 2014.]

Before the fund established by this part shall enter into any contract, except for consulting services, or issue any bonds, or incur any liability, the board of directors shall submit organizational and operating plans for the fund to a review committee for approval. The review committee shall consist of the commissioners of labor and workforce development, commerce and insurance, and finance and administration, the state treasurer, and the comptroller of the treasury. The review committee shall approve the operational and organizational plans if it determines the plans to be in accord with this part and to be fiscally sound and responsible. If the committee approves the plan, then the fund may become fully operational. If the committee does not approve the plan, then the committee shall make appropriate recommendations to the board of directors, governor, and the speakers of the senate and house of representatives concerning any deficiencies.

Acts 1992, ch. 900, § 26; 1994, ch. 979, § 7; 1999, ch. 520, § 41.

Part 7
Interlocal Agreements by Electric Cooperatives and Municipal Utilities

50-6-701. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Association captive insurance company” means an association captive insurance company described in § 56-13-102, operated by an association described in § 56-13-102;
  2. “Electric cooperative” means an electric cooperative or electric membership corporation, whether organized or operating under title 65, chapter 25, or similar statutes of any other state, that distributes electric power purchased from the Tennessee Valley authority (TVA);
  3. “Interlocal agreement” means an agreement authorized by title 12, chapter 9, or by this part, or by both; and
  4. “Municipal utility” means any governmental entity as defined in § 29-20-102, having a system for the distribution of electric power, whether operated under the authority of a board of the governmental entity, by a department of the governmental entity or under the authority of a board created pursuant to the Municipal Electric Plant Law of 1935, compiled in title 7, chapter 52, or by the authority of any other law of the state, and that operates an electric generation or distribution system that distributes electric power purchased from the Tennessee Valley authority; and also includes any municipality, county or other political subdivision of another state, whether operated under a board or as a county or municipal department, that distributes electric power purchased from the Tennessee Valley authority.

Acts 1995, ch. 488, § 1.

50-6-702. Authorization to enter interlocal agreements — General assembly findings.

  1. For the purpose of insuring or self-insuring the obligations and liabilities under this chapter, municipal utilities and electric cooperatives are authorized to enter into interlocal agreements to pool their liabilities pursuant to § 29-20-401, as if each electric cooperative were a governmental entity for purposes of § 29-20-401, and as if each cooperative were a public agency for purposes of title 12, chapter 9, and under which the interlocal agreement is administered by an association captive insurance company or any of its affiliates or subsidiaries. An interlocal arrangement that is administered by an association captive insurance company may also provide for the insuring or self-insuring of obligations and liabilities arising under the federal Longshoremen's and Harbor Workers' Compensation Act, compiled in 33 U.S.C. §§ 901-950, as long as the company has obtained any necessary approvals by the appropriate federal agencies.
  2. The general assembly finds and determines that participation in the interlocal agreements by electric cooperatives and municipal utilities provides a mutual benefit to help reduce the expense of operations of municipal utilities and electric cooperatives and hence reduces the cost of electricity for the citizens of the state, and finds that all contributions of financial and administrative resources and associated costs and expenses made by a municipal utility pursuant to an interlocal agreement, as authorized in this part, are made for a public and governmental purpose, and that the contributions benefit the contributing municipal utilities. To the extent that the interlocal agreements provide for the respective parties to indemnify or hold harmless each other from certain liabilities arising out of participation in the pooling agreement, the provisions are authorized in accordance with the findings of the general assembly.

Acts 1995, ch. 488, § 2; 2010, ch. 848, § 1.

50-6-703. Association captive insurance companies as administrators for certain entities.

An association captive insurance company may, directly or through an entity it may create and control, enter into agreements with participating governmental entities or electric cooperatives under § 29-20-401, to serve as administrator or act as the special fund or legal or administrative entity of the pooled financial and administrative resources thereunder and under this part, and may charge fees and costs for such services as administrator. The company may provide insurance or reinsurance for excess losses above the amounts that are retained by the pooled financial resources, the same as if it were created by governmental entities under § 29-20-401(e), for those purposes, an electric cooperative shall be deemed to be a governmental entity. To the extent that an association captive insurance company shall be deemed to become a party to an interlocal agreement, it shall be deemed to have the status of a public agency for those purposes. The administrative activities and operations of the fund or entity, whether by, through or under the direction or supervision of the association captive insurance company or otherwise, shall be subject to § 29-20-401(d), and certificates of compliance may be issued as authorized by § 29-20-401(c)(2).

Acts 1995, ch. 488, § 3.

50-6-704. Liability — Participation in other arrangements — No implied repeal.

  1. Nothing in this part shall be construed to confer upon any electric cooperative any immunity from liability for damages for injuries to persons or property granted to a governmental entity under the provisions of the Tennessee Governmental Tort Liability Act, compiled in title 29, chapter 20, nor to prevent a municipal utility from exercising any right, privilege or option it may have under this chapter.
  2. Nothing in this part shall preclude a municipal utility or electric cooperative from participating in any other insured, self-insured, or risk-pooling arrangement permitted under any other law of this state.
  3. Nothing in this part shall be deemed to be an implied repeal of any of the provisions of title 65, chapter 25.

Acts 1995, ch. 488, §§ 4-6.

50-6-705. Liberal construction.

This part shall be liberally construed to permit electric cooperatives and municipal utilities to enter into agreements to pool their resources to provide for satisfaction of obligations under this chapter, as if electric cooperatives were governmental entities under § 29-20-401 or public agencies under title 12, chapter 9.

Acts 1995, ch. 488, § 7.

Part 8
Uninsured Employers Fund

50-6-801. Creation — Legislative intent — Uses of fund.

  1. There is created the uninsured employers fund as an account in the general fund, which shall be invested pursuant to § 9-4-603. Moneys from the fund may be expended to fund activities authorized by this part. Any revenues deposited in this fund shall remain in the fund until expended for purposes consistent with this part, and shall not revert to the general fund on any June 30. Any appropriation for the fund shall not revert to the general fund on any June 30, but shall remain available for expenditure in subsequent fiscal years.
  2. The uninsured employers fund may receive revenues that shall include all penalties assessed and collected from employers who fail to provide workers' compensation coverage or who fail to qualify as self-insurers pursuant to this chapter, and any other amounts that may be appropriated. In addition, when deemed necessary in the discretion of the administrator and when the balance remaining in the uninsured employers fund is less than the amount of funds distributed by the bureau to provide benefits to injured workers in the previous fiscal year, the administrator may also withdraw up to twenty-five percent (25%) of the balance of funds remaining after the costs and expenditures provided by § 50-6-913(b) have been satisfied, from the employee misclassification education and enforcement fund to provide benefits under this part.
  3. The uninsured employers fund shall be used for payment of the costs incurred by the bureau of workers' compensation to administer the assessment of and collection of penalties provided in § 50-6-412 and the cost of administering this part 8 including, but not limited to, lien fees or fees of third party administrators.
  4. The bureau may use any revenues remaining in the uninsured employers fund that are not used for the purposes provided in subsection (c) to provide temporary disability and medical benefits to any eligible employee who suffered an injury arising primarily within the course and scope of the employee's employment with an employer who failed to secure the payment of compensation pursuant to this chapter at the time the eligible employee suffered the injury. An employee shall be an eligible employee within the meaning provided by this section if:
    1. The employee was employed by an employer who failed to secure payment of compensation pursuant to this chapter;
    2. The employee suffered an injury on or after July 1, 2015, primarily within the course and scope of employment, at a time when the employer had failed to secure the payment of compensation;
    3. The employee was a Tennessee resident on the date of injury;
    4. The employee provided notice to the bureau of the injury and of the failure of the employer to secure the payment of compensation within a reasonable period of time, but in no event more than one hundred eighty (180) days, after the date of the injury; and
    5. Except as provided in § 50-6-802(d) and (e), the employee secured a judgment for workers' compensation benefits against the employer for the injury.

Acts 2000, ch. 972, § 2; 2014, ch. 765, §§ 1, 2; 2015, ch. 341, § 15; 2016, ch. 816, § 10; 2020, ch. 731, § 3.

Compiler's Notes. Acts 2020, ch. 731, § 5 provided that the act, which amended this section, applies to injuries occurring on or after June 22, 2020.

Amendments. The 2014 amendment added the last sentence in (b); substituted “division of workers' compensation” for “department of labor and workforce development” in (c); and added (d).

The 2015 amendment substituted “bureau” for “division” throughout.

The 2016 amendment added “and the cost of administering this part 8 including, but not limited to, lien fees or fees of third party administrators” at the end of (c).

The 2020 amendment substituted "one hundred eighty (180) days" for "sixty (60) days" in (d)(4).

Effective Dates. Acts 2014, ch. 765, § 4. April 24, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2016, ch. 816, § 11. April 14, 2016.

Acts 2020, ch. 731, § 5. June 22, 2020.

50-6-802. Request for benefits from fund.

  1. An eligible employee may request that the bureau provide the employee temporary disability or medical benefits, pursuant to § 50-6-801(d), by submitting a request for benefits from the uninsured employers fund to the bureau no more than sixty (60) days after conclusion of the claim, including all appeals. The request shall be made on a form prescribed by the bureau, and shall be submitted to the bureau via certified mail. The eligible employee shall include a copy of the judgment with the request. Any request for benefits that does not meet the requirements of this subsection (a) shall not be considered.
  2. For claims with a date of injury that is on or after July 1, 2015, the bureau may, upon receipt of a request for benefits pursuant to subsection (a) from an eligible employee, provide the employee workers' compensation benefits for temporary disability and medical benefits only. The bureau shall promulgate rules, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, setting forth the circumstances under which benefits may be paid pursuant to this part.
  3. If the bureau pays workers' compensation benefits to the injured employee, the workers' compensation benefits shall be paid to the employee from the uninsured employers fund and the amount paid to, or on behalf of, any injured employee, pursuant to this part, shall not exceed forty thousand dollars ($40,000). Of the forty thousand dollars ($40,000), no more than twenty thousand dollars ($20,000) shall be payable for medical benefits and no more than twenty thousand dollars ($20,000) shall be payable for temporary disability benefits. However, if less than twenty thousand dollars ($20,000) has been paid to the employee for temporary disability or medical benefits and the employee has secured a judgment for temporary disability or medical benefits in an amount greater than twenty thousand dollars ($20,000), the administrator may pay the remaining funds to the employee for temporary disability or medical benefits. The administrator shall not pay benefits pursuant to this part to, or on behalf of, any employee for more than one workplace injury.
    1. In order to establish medical causation, the administrator shall have authority to provide medical benefits to an employee who meets the requirements of § 50-6-801(d)(1)-(4) for the payment of the cost associated with the employee's visit with a physician to perform an evaluation and provide an opinion on medical causation. The employer shall be required to reimburse the bureau for the payment of benefits pursuant to this section even when the employee's injury is determined not to be compensable under this chapter.
    2. When medical benefits have been provided pursuant to subdivision (d)(1), the amount of payment shall be deducted from the total amount of benefits that may be provided under subsection (c) in the event that those benefits are provided. However, the provision of medical benefits pursuant to this subsection (d) shall not automatically entitle the employee to the benefits provided by subsection (c) even when the claim is determined to be compensable under this chapter.
    1. If medical causation is established and a workers' compensation judge determines that an employee, who meets the requirements of § 50-6-801(d)(1)-(4), is entitled to temporary disability or medical benefits, following an expedited hearing as provided in § 50-6-239(d), the administrator has the discretion to begin paying temporary disability or medical benefits.
    2. If the administrator makes any payments of temporary disability or medical benefits pursuant to this subsection (e) and the employee fails to prosecute the claim, the bureau has authority to seek recovery of the payments from the employee.
    3. The provision of medical benefits pursuant to this subsection (e) shall not automatically entitle the employee to the benefits provided by subsection (c) even when the claim is determined to be compensable under this chapter.
  4. [Deleted by 2020 amendment.]

Acts 2014, ch. 765, § 3; 2015, ch. 341, § 15; 2020, ch. 731, § 4.

Compiler's Notes. Acts 2020, ch. 731, § 5 provided that the act, which amended this section, applies to injuries occurring on or after June 22, 2020.

Amendments. The 2015 amendment substituted “bureau” for “division” throughout.

The 2020 amendment deleted former (f) which read: “(f) When an employee who has provided notice pursuant to § 50-6-801(d)(4) files a claim for workers' compensation benefits against the employer identified in the notice, the court of workers' compensation claims shall convene a full and final hearing no more than sixty (60) days after the notice of hearing has been filed pursuant to § 50-6-239(a).”

Effective Dates. Acts 2014, ch. 765, § 4. April 24, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2020, ch. 731, § 5. June 22, 2020.

50-6-803. Payment of benefits constitutes satisfaction of judgment — Recovery from employer.

  1. The payment of workers' compensation benefits to, or on behalf of, an injured employee pursuant to this part constitutes satisfaction of the judgment against the uninsured employer up to the amount paid. The bureau shall assume the rights of a creditor against the employer and may take action to collect the portion of the judgment that it satisfied on the employer's behalf.
  2. The bureau shall place a lien on the assets of the employer to recover money paid pursuant to this part by filing a notice of claim with the register of deeds of any county where the employer has assets. Upon filing the notice of claim with the appropriate official, the bureau shall be a secured creditor, and any lien secured pursuant to this part has first priority over all other liens with the exception of liens established for the collection of delinquent tax payments.
  3. The injured employee may collect the remaining portion of the judgment that was not satisfied by payment made pursuant to this part from the employer.

Acts 2014, ch. 765, § 3; 2015, ch. 341, § 15.

Amendments. The 2015 amendment substituted “bureau” for “division” in (a) and (b).

Effective Dates. Acts 2014, ch. 765, § 4. April 24, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Part 9
Construction Services Providers

50-6-901. Part definitions.

For purposes of this part, unless the context otherwise requires:

  1. “Active and in good standing as reflected in the records of the secretary of state” means a corporation, limited liability company, or partnership that is in existence, registered or authorized to transact business in this state as reflected in the records of the secretary of state; and in the case of a corporation, limited liability company, limited liability partnership, or limited partnership, such entity is in good standing with the Tennessee department of revenue;
  2. “Board” means the state board for licensing contractors;
  3. “Commercial construction project” means any construction project that is not:
    1. The construction, erection, remodeling, repair, improvement, alteration or demolition of one (1), two (2), three (3) or four (4) family unit residences not exceeding three (3) stories in height or accessory use structures in connection with the residences;
    2. The construction, erection, remodeling, repair, improvement, alteration or demolition of any building or structure for use and occupancy by the general public which, pursuant to § 62-6-112(f)(2), a small commercial building contractor is authorized to bid on and contract for; or
    3. Performed by any person, municipality, county, metropolitan government, cooperative, board, commission, district, or any entity created or authorized by public act, private act or general law to provide electricity, natural gas, water, waste water services, telephone service, telecommunications service, cable service, or Internet service or any combination thereof, for sale to consumers in any particular service area;
  4. “Construction project” means the construction, erection, remodeling, repair, improvement, alteration or demolition of a building, structure or other undertaking; provided, that if a general contractor contracts to erect, remodel, repair, improve, alter or demolish multiple buildings, structures or undertakings in one (1) contract, all such buildings, structures or undertakings described in such contract shall constitute one (1) construction project;
  5. “Construction services provider” or “provider” means any person or entity engaged in the construction industry;
  6. “Corporate officer” or “officer of a corporation” means any person who fills an office provided for in the corporate charter or articles of incorporation of a corporation that in the case of a domestic corporation is formed under the laws of this state pursuant to title 48, chapters 11-68, or in the case of a foreign corporation is authorized to transact business in this state pursuant to title 48, chapters 11-68; provided, that a domestic or foreign corporation is active and in good standing as reflected in the records of the secretary of state;
  7. “Direct labor” means the performance of any activity that would be assigned to the contracting group as those classifications are designated by the rate service organization designated by the commissioner of commerce and insurance as provided in § 56-5-120, but does not include:
    1. Classification code 5604, or any subsequent classification code, for construction executives, supervisors, or foremen that are responsible only for the oversight of laborers; or
    2. Classification code 5606, or any subsequent classification code, for project managers, construction executives, construction managers and construction superintendents having only administrative or managerial responsibilities for construction projects by exercising operational control indirectly through job supervisors or foremen;
  8. “Engaged in the construction industry” means any person or entity assigned to the contracting group as those classifications are designated by the rate service organization designated by the commissioner of commerce and insurance as provided in § 56-5-120; provided, that where more than one (1) classification applies, the governing classification, as that term is defined by the rate service organization designated by the commissioner of commerce and insurance as provided in § 56-5-120, shall be used to determine whether the person or entity is engaged in the construction industry;
  9. “Family-owned business” means a business entity in which members of the same family of the applicant have an aggregate of at least ninety-five percent (95%) ownership of such business;
  10. “General contractor” means the person or entity responsible to the owner or developer for the supervision or performance of substantially all of the work, labor, and the furnishing of materials in furtherance of the construction, erection, remodeling, repair, improvement, alteration or demolition of a building, structure or other undertaking and who contracts directly with the owner or developer of the building, structure or other undertaking; “general contractor” includes a prime contractor;
  11. “Good standing with the Tennessee department of revenue” means the secretary of state has received and verified through electronic confirmation or a certificate of tax clearance issued by the commissioner of revenue that a corporation, limited liability company, limited liability partnership, or limited partnership is current on all fees, taxes, and penalties to the satisfaction of the commissioner;
  12. “Member of a limited liability company” means any member of a limited liability company formed pursuant to title 48, chapters 201-249 that is active and in good standing as reflected in the records of the secretary of state;
  13. “Members of the same family of the applicant” means parents, children, siblings, grandparents, grandchildren, stepparents, stepchildren, stepsiblings, or spouses of such, and includes adoptive relationships;
  14. “Partner” means any person who is a member of an association that is formed by two (2) or more persons to carry on as co-owners of a business or other undertaking for profit and such association is active and in good standing as reflected in the records of the secretary of state;
  15. “Person” means only a natural person and does not include a business entity;
  16. “Registry” means the construction services provider workers' compensation exemption registry established pursuant to this part and maintained by the secretary of state; and
  17. “Sole proprietor” means one (1) person who owns a form of business in which that person owns all the assets of such business.

Acts 2010, ch. 1149, § 13; 2011, ch. 422, § 3.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2011, ch. 422, § 13 provided that  if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to this act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

Section 56-5-320, referenced in subdivisions (7) and (8) of this section, was renumbered by the authority of the code commission as § 56-5-120 in 2016.

50-6-902. Requirement that construction services providers carry workers' compensation insurance — Exemptions — Election by subcontractor.

  1. Except as provided in subsection (b), all construction services providers shall be required to carry workers' compensation insurance on themselves. The requirement set out in this subsection (a) shall apply whether or not the provider employs fewer than five (5) employees.
  2. To the extent there is no restriction on applying for an exemption pursuant to § 50-6-903, a construction services provider shall be exempt from subsection (a) if the provider:
    1. Is a construction services provider rendering services on a construction project that is not a commercial construction project and is listed on the registry;
    2. Is a construction services provider rendering services on a commercial construction project, is listed on the registry and such provider is rendering services to a person or entity that complies with § 50-6-914(b)(2);
    3. Is covered under a policy of workers' compensation insurance maintained by the person or entity for whom the provider is providing services;
    4. Is a construction services provider performing work directly for the owner of the property; provided, however, that this subdivision (b)(4) shall not apply to a construction services provider who acts as a general or intermediate contractor and who subsequently subcontracts any of the work contracted to be performed on behalf of the owner;
    5. Is a construction services provider building a dwelling or other structure, or performing maintenance, repairs, or making additions to structures, on the construction service provider's own property; or
    6. Is a provider whose employment at the time of injury is casual as provided in § 50-6-106.
  3. A subcontractor engaged in the construction industry under contract to a general contractor engaged in the construction industry may elect to be covered under any policy of workers' compensation insurance insuring the general contractor upon written agreement of the general contractor, regardless of whether such subcontractor is on the registry established pursuant to this part, by filing written notice of the election, on a form prescribed by the administrator of the workers' compensation bureau, with the bureau. It is the responsibility of the general contractor to file the written notice with the bureau. Failure of the general contractor to file the written notice shall not operate to relieve or alter the obligation of an insurance company to provide coverage to a subcontractor when the subcontractor can produce evidence of payment of premiums to the insurance company for the coverage. The election shall in no way terminate or affect the independent contractor status of the subcontractor for any other purpose than to permit workers' compensation coverage. The election of coverage may be terminated by the subcontractor or general contractor by providing written notice of the termination to the bureau and to all other parties consenting to the prior election. The termination shall be effective thirty (30) days from the date of the notice to all other parties consenting to the prior election and to the bureau.
  4. Nothing in this part shall be construed as exempting or preventing a construction services provider from carrying workers' compensation insurance for any of its employees. The requirement set out in this subsection (d) shall apply whether or not the provider employs fewer than five (5) employees.

Acts 2010, ch. 1149, § 13; 2011, ch. 422, § 4; 2013, ch. 282, § 1; 2014, ch. 903, § 9; 2015, ch. 341, § 15.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2011, ch. 422, § 13 provided that  if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to this act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

Amendments. The 2013 amendment, effective July 1, 2014, substituted “administrator of the workers' compensation division” for “commissioner of labor and workforce development” in the first sentence in (c).

The 2014 amendment substituted “the division” for “the department” throughout (c).

The 2015 amendment substituted “bureau” for “division” throughout (c).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2014, ch. 903, § 14. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-902. Requirement that construction services providers carry workers' compensation insurance — Exemptions — Election by subcontractor. [Applicable to injuries occurring prior to July 1, 2014.]

  1. Except as provided in subsection (b), all construction services providers shall be required to carry workers' compensation insurance on themselves. The requirement set out in this subsection (a) shall apply whether or not the provider employs fewer than five (5) employees.
  2. To the extent there is no restriction on applying for an exemption pursuant to § 50-6-903, a construction services provider shall be exempt from subsection (a) if the provider:
    1. Is a construction services provider rendering services on a construction project that is not a commercial construction project and is listed on the registry;
    2. Is a construction services provider rendering services on a commercial construction project, is listed on the registry and such provider is rendering services to a person or entity that complies with § 50-6-914(b)(2);
    3. Is covered under a policy of workers' compensation insurance maintained by the person or entity for whom the provider is providing services;
    4. Is a construction services provider performing work directly for the owner of the property; provided, however, that this subdivision (b)(4) shall not apply to a construction services provider who acts as a general or intermediate contractor and who subsequently subcontracts any of the work contracted to be performed on behalf of the owner;
    5. Is a construction services provider building a dwelling or other structure, or performing maintenance, repairs, or making additions to structures, on the construction service provider's own property; or
    6. Is a provider whose employment at the time of injury is casual as provided in § 50-6-106.
  3. A subcontractor engaged in the construction industry under contract to a general contractor engaged in the construction industry may elect to be covered under any policy of workers' compensation insurance insuring the general contractor upon written agreement of the general contractor, regardless of whether such subcontractor is on the registry established pursuant to this part, by filing written notice of the election, on a form prescribed by the commissioner of labor and workforce development, with the department. It is the responsibility of the general contractor to file the written notice with the department. Failure of the general contractor to file the written notice shall not operate to relieve or alter the obligation of an insurance company to provide coverage to a subcontractor when the subcontractor can produce evidence of payment of premiums to the insurance company for the coverage. The election shall in no way terminate or affect the independent contractor status of the subcontractor for any other purpose than to permit workers' compensation coverage. The election of coverage may be terminated by the subcontractor or general contractor by providing written notice of the termination to the department and to all other parties consenting to the prior election. The termination shall be effective thirty (30) days from the date of the notice to all other parties consenting to the prior election and to the department.
  4. Nothing in this part shall be construed as exempting or preventing a construction services provider from carrying workers' compensation insurance for any of its employees. The requirement set out in this subsection (d) shall apply whether or not the provider employs fewer than five (5) employees.

Acts 2010, ch. 1149, § 13; 2011, ch. 422, § 4.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2011, ch. 422, § 13 provided that  if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to this act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

50-6-903. Criteria for applying for exemption.

  1. Any construction services provider who meets one (1) of the following criteria may apply for an exemption from § 50-6-902(a):
    1. An officer of a corporation who is engaged in the construction industry; provided, that no more than five (5) officers of one (1) corporation shall be eligible for an exemption;
    2. A member of a limited liability company who is engaged in the construction industry if such member owns at least twenty percent (20%) of such company;
    3. A partner in a limited partnership, limited liability partnership or a general partnership who is engaged in the construction industry if such partner owns at least twenty percent (20%) of such partnership;
    4. A sole proprietor engaged in the construction industry; or
    5. An owner of any business entity listed in subdivisions (a)(1)-(3) that is family-owned; provided, that no more than five (5) owners of one (1) family-owned business may be exempt from § 50-6-902(a).
  2. A construction services provider may be eligible for and may utilize multiple exemptions if the construction services provider meets the requirements set out in subsection (a) for each such exemption and complies with § 50-6-904 for each such exemption in which the construction services provider seeks to obtain; provided, however, that a construction services provider applying for a second or subsequent exemption shall not be required to pay the fees set out in § 50-6-912(a)(1) and (2), but shall instead pay the fee set out in § 50-6-912(a)(9) for each subsequent workers' compensation exemption registration and shall pay the fee set out in § 50-6-912(a)(10) for each subsequent registration renewal.
    1. A construction services provider who is an individual and who does not meet the criteria established in subsection (a), but who is a member of a recognized religious sect or division and is an adherent of established tenets or teachers of such sect or division by reason of which such construction services provider is conscientiously opposed to acceptance of the benefits provided by this chapter may apply for an exemption from § 50-6-902(a); provided, however, that no more than five (5) individuals associated with one business entity may be exempt from § 50-6-902(a).
    2. Any applicant applying for an exemption from § 50-6-902(a) pursuant to subdivision (c)(1) shall provide an affidavit from the leader of the recognized religious sect or division stating that the individual filing the application for an exemption is a member of the recognized religious sect or division and is exempt, as evidenced by the Internal Revenue Service Form 4029, or similar form used by the internal revenue service. The leader of the recognized religious sect or division shall notify the secretary of state and department, in writing, if the member of the recognized religious sect or division who obtains an exemption from § 50-6-902(a) leaves or withdraws membership from the recognized religious sect or division.
    3. Each individual employee of a construction services provider who meets the religious exemption requirements pursuant to this subsection (c) shall pay the fees set out in § 50-6-912(a)(1) and (a)(2). Any collected fees shall be deposited into the employee misclassification education and enforcement fund, pursuant to § 50-6-913.

Acts 2010, ch. 1149, § 13; 2011, ch. 422, § 5; 2013, ch. 476, § 1.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2011, ch. 422, § 13 provided that if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to this act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

Amendments. The 2013 amendment, effective January 1, 2014, added (c).

Effective Dates. Acts 2013, ch. 476, § 4. January 1, 2014; provided, that, for purposes of promulgating rules and regulations, the act shall take effect May 20, 2013.

50-6-904. Application for construction services provider registration.

      1. Any construction services provider applying for an exemption from § 50-6-902(a) who has not been issued a license by the board shall obtain a construction services provider registration from the secretary of state at the same time such provider applies for such exemption.
      2. The secretary of state is authorized and directed to issue the construction services provider registration on behalf of the board. The secretary of state shall issue an identification number assigned to the provider's registration. The board shall obtain such identification number and other identifying information from the secretary of state.
    1. Any construction services provider requesting exemption from § 50-6-902(a) shall submit an application along with the required filing fees to the secretary of state. The applicant shall provide sufficient documentation for the secretary of state to assure that such applicant meets the requirements set out in § 50-6-902, including, but not limited to:
      1. The applicant's full legal name;
      2. The applicant's birth month;
      3. The applicant's physical address; provided, that the applicant may provide a post office box number for purposes of receiving mail from the secretary of state, as long as the applicant also provides a physical address for the business entity for which the applicant is an officer, member, partner or owner;
      4. A telephone number through which the applicant can be reached;
      5. The name of the business entity through which the applicant is seeking the workers' compensation exemption;
      6. The federal employer identification number issued to the applicant if a sole proprietor or a business entity for which the applicant is an officer, member, partner or owner seeking exemption pursuant to § 50-6-903, and the last four (4) digits of the applicant's social security number; provided, however, that if an applicant seeks an exemption pursuant to § 50-6-903(c), the applicant may provide the last four (4) digits of a control number issued to the applicant by the social security administration instead of the last four (4) digits of the applicant's social security number;
      7. The contractor license number issued by the board to such applicant or the construction services provider registration number issued by the secretary of state to such applicant;
      8. A current license issued by a local government pursuant to § 67-4-723, if the business entity through which the applicant is seeking the workers' compensation exemption is required by law to obtain such license;
      9. Any other information the secretary of state deems necessary to identify such applicant; and
      10. If the construction services provider is applying for an exemption pursuant to the criteria set out in § 50-6-903(c), the provider shall submit a copy of an approved Internal Revenue Service Form 4029 or similar form used by the internal revenue service, to show that an application for exemption from social security and medicare taxes and waiver of benefits has been approved for such provider applying for an exemption pursuant to this part.
    2. The secretary of state shall verify that the applicant meets the qualifications set out in § 50-6-902 upon a review of its records and the records provided by such applicant.
  1. The application shall be on a form designed by the secretary of state and shall contain a statement that specifies the eligibility requirements for exemption, contain an attestation that the applicant meets the eligibility requirements and contain a statement that a false statement on such application is subject to the penalties of perjury set out in § 39-16-702.
  2. The application, as well as a process for submission of such application, shall be available through the secretary of state's web site or by contacting the secretary of state's office in person or by mail.

Acts 2010, ch. 1149, § 13; 2013, ch. 476, §§ 2, 3.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

      Amendments. The 2013 amendment, effective January 1, 2014, in (a)(2), added the proviso to the end of (F) and added (J).

      Effective Dates. Acts 2013, ch. 476, § 4. January 1, 2014; provided, that, for purposes of promulgating rules and regulations, the act shall take effect May 20, 2013.

      1. The full legal name of the provider;
      2. The specific identification number issued to the provider by the secretary of state upon filing the application;
      3. The period in which the provider is exempt, including the date and time in which such exemption expires; and
      4. Any other identifying information the secretary of state deems necessary for the public to identify such provider.
  2. The provider shall not be exempt from the requirement of § 50-6-902(a) until the provider's application is filed by the secretary of state and the applicant's name and other identifying information is published on the registry. If a provider's exemption is revoked pursuant to § 50-6-908, such revocation is effective upon the provider's name and other identifying information no longer appearing on the registry after being removed by the secretary of state pursuant to § 50-6-908.
  3. A provider listed on the registry may correct a document filed with the secretary of state if the document contains an incorrect statement or was defectively executed, attested, sealed, verified or acknowledged. A document shall be corrected in a manner established by the secretary of state.
  4. A provider listed on the registry shall maintain a current physical mailing address with the secretary of state. A change of address shall be made in a manner established by the secretary of state.
  5. Any person or representative of an entity who knowingly enters or directs a party to enter false or unauthorized information on a construction services provider's application to the secretary of state may be subject to a fine of not less than fifty dollars ($50.00) nor more than five thousand dollars ($5,000) per violation at the discretion of the administrator or administrator's designee.

50-6-905. Filing of application — Issuance of notice — Publication on registry — Correction of documents filed with secretary of state — Address and change of address — Fine.

If a construction services provider's application delivered to the secretary of state meets the requirements of this part, as determined by the secretary of state, the secretary of state shall file the application and:

Issue a notice to such provider that the provider is listed on the registry; and

Publish on the registry, contained on the secretary of state's web site, the provider's name and other identifying information, including, but not limited to:

Acts 2010, ch. 1149, § 13; 2017, ch. 344, § 11.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2017, ch. 344, § 12 provided that the act, which amended this section, shall apply to violations that occur on and after May 9, 2017.

Amendments. The 2017 amendment added (e).

Effective Dates. Acts 2017, ch. 344, § 12. May 9, 2017.

50-6-906. Refusal by secretary of state to file application — Reversal or modification by court — Hearing — Appeal.

  1. If the secretary of state refuses to file an application and list the construction services provider on the registry, the secretary of state shall return such application to the provider within ten (10) business days after the document was received for filing, together with a brief, written explanation of the reason for the secretary of state's refusal to file.
  2. If the secretary of state refuses to file an application and list a provider on the registry, the provider may appeal the refusal to the chancery court of Davidson County. The appeal shall be commenced by petitioning the court to compel listing such provider on the registry and shall attach to the petition the application and the secretary of state's explanation of the secretary of state's refusal to file.
  3. The court may reverse or modify the actions of the secretary of state if the rights of the provider have been prejudiced because the secretary of state's actions are:
    1. In violation of constitutional or statutory provisions;
    2. In excess of the statutory authority of the secretary of state;
    3. Made upon unlawful procedure; or
    4. Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
  4. After any hearing deemed necessary by the court, the court may summarily order the secretary of state to list such provider on the registry or take other action the court considers appropriate.
  5. The court's final decision may be appealed as in other civil proceedings.

Acts 2010, ch. 1149, § 13.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.
  2. The secretary of state shall remove the construction services provider's name from the registry at the close of business on the day the provider's exemption expires. If the exemption expires on a day that state offices are closed or the secretary of state's office is closed, the exemption shall expire at the close of business on the next business day.
  3. A construction services provider whose registration expires under this section may renew the exemption by following the procedure outlined in § 50-6-904.

50-6-907. Term of validity of exemption — Renewal.

The exemption obtained pursuant to this part shall be valid for two (2) years from a date and time set by the secretary of state. No more than sixty (60) days prior to the expiration of the exemption period, a construction services provider may file an application to renew an exemption. Renewal of an exemption shall be made in a manner established by the secretary of state.

Acts 2010, ch. 1149, § 13.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.
      1. Give notice to the person or entity for whom the provider may currently be providing services of the revocation in accordance with a form prescribed by the secretary of state;
      2. Attest as to whether or not the provider has any employment related injuries at the time of such revocation that occurred while providing services to a person or entity that did not provide coverage under a policy of workers' compensation; and
      3. Within twenty-four (24) hours of such revocation, notify any person or entity for whom the provider is currently providing services that the provider has voluntarily revoked the provider's workers' compensation exemption.

        Upon filing such notice, the secretary of state shall remove the construction services provider's name from the registry.

    3. A construction services provider who revokes an exemption under this section may reapply for an exemption by following the procedure set forth in § 50-6-904.
    1. In addition to the revocation set out in subsection (a), a workers' compensation exemption shall be revoked by the secretary of state upon:
      1. Notification from the board that the board has revoked or suspended any license issued to the construction services provider by the board, including a license issued to a business entity through which the construction services provider obtained such an exemption. For purposes of this subdivision (b)(1)(A), if a construction services provider's license is revoked, whether or not such license is in the provider's individual name or in the name of a business entity through which the provider obtained an exemption, then any exemption obtained through such business entity shall be revoked;
      2. Notification from the department of any violations of § 50-6-412 by the construction services provider, including any violation against a business entity through which the construction services provider obtained such an exemption. For purposes of this subdivision (b)(1)(B), if a construction services provider has violated § 50-6-412, whether or not such violation was committed by the individual or a business entity through which the provider obtained an exemption, then any exemption obtained through such business entity shall be revoked and all exemptions in the provider's name shall be subject to revocation;
      3. A determination by the secretary of state that the construction services provider no longer meets the requirements for an exemption established pursuant to this part; or
      4. A determination by the secretary of state that the construction services provider failed to renew prior to the expiration date of such exemption or the provider failed to pay any fees required to be paid pursuant to this part.
    2. Any notification of a violation made by the department pursuant to subdivision (b)(1)(B) shall include information indicating whether such violation requires a temporary or permanent revocation pursuant to § 50-6-412.
    3. If a provider's exemption is revoked pursuant to this section, the secretary of state shall:
      1. Remove the construction services provider's name from the registry within seven (7) days of receipt of notification from the department or the board, or upon making a determination as provided in subdivision (b)(1)(C) or (b)(1)(D); and
      2. Notify the construction services provider that such provider is required to notify, within twenty-four (24) hours of such revocation, any person or entity for whom the provider is currently providing services that the provider's workers' compensation exemption has been revoked.
    4. If a provider's exemption is revoked pursuant to subdivision (b)(1), the administrative and judicial procedures available to such provider shall be those procedures set out in § 50-6-906.
  2. If a construction services provider's exemption is revoked pursuant to this section, the construction services provider shall be required to carry workers' compensation insurance as provided in § 50-6-902(a); provided, that such construction services provider does not otherwise meet an exemption set out in § 50-6-902(b).
  3. A construction services provider whose exemption is revoked for any reason set out in this part shall be notified of such revocation in writing, and shall not be entitled to a refund of filing fees.

50-6-908. Revocation of exemption by provider or secretary of state.

(1)  Any construction services provider who obtains an exemption and subsequently chooses to revoke such exemption shall:

Acts 2010, ch. 1149, § 13; 2011, ch. 422, §§ 6-8.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2011, ch. 422, § 13 provided that if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to this act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

50-6-909. Reinstatement of exemption.

  1. Except as provided in § 50-6-412(h)(2), a construction services provider whose exemption is revoked pursuant to § 50-6-908 may apply to reinstate such exemption in the same manner as provided for in this part for an initial application.
  2. A construction services provider whose exemption is revoked under § 50-6-908(b) may only be granted a reinstatement of exemption:
    1. Upon notification to the secretary of state from the board that such provider's license is no longer revoked or suspended;
    2. Upon notification from the department of labor and workforce development to the secretary of state that the provider qualified for reinstatement pursuant to § 50-6-412(g); and
    3. If the secretary of state determines that the provider meets the requirements for an exemption established pursuant to this part.
  3. Upon verification by the secretary of state that the requirements of subsection (b) are met, the secretary of state shall file the application in accordance with § 50-6-905.

Acts 2010, ch. 1149, § 13.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.
    3. Eligible for an exemption pursuant to § 50-6-914(b)(2), if such eligibility requirements apply, at the time of such injury.
  2. Any construction services provider proceeding as at common law pursuant to subsection (a) shall forego the right to sue to establish or reestablish workers' compensation coverage.

50-6-910. Action to recover damages.

Any action to recover damages for injury, as defined by § 50-6-102, by a construction services provider shall proceed as at common law, and the defendant in the suit may make use of all common law defenses if, at the time of the injury, the construction services provider was:

Listed on the registry as having a workers' compensation exemption and working in the service of a business entity through which the construction services provider obtained such an exemption;

Not covered under a policy of workers' compensation insurance maintained by the person or entity for whom the provider was providing services at the time of such injury; and

Acts 2010, ch. 1149, § 13; 2011, ch. 422, § 9.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2011, ch. 422, § 13 provided that if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to this act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

50-6-911. Notice to public of exemptions — Web site — Additions and deletions from registry.

    1. The secretary of state shall provide notice on its web site that the registry is for purposes of establishing providers who are exempt from workers' compensation coverage and in no way reflects licensing or certification of any construction services provider.
    2. The board, the department of commerce and insurance and the department of labor and workforce development shall each develop a notice provision to inform the public that any person or entity interested in determining whether a construction services provider is exempt from workers' compensation coverage shall review the secretary of state's web site. Such notice provision shall be prominently displayed on the web sites of the board, the department of commerce and insurance and the department of labor and workforce development.
    1. The secretary of state shall provide notice to the department of labor and workforce development, the board and the department of commerce and insurance when a construction services provider is added to or removed from the registry.
    2. If any construction services provider has a license issued by the board, and such license is revoked or suspended, the board shall immediately notify the secretary of state, in order for the secretary of state to revoke such provider's exemption pursuant to § 50-6-908(b).

Acts 2010, ch. 1149, § 13.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.
    3. The filing of correction information pursuant to § 50-6-905(c)  $20
    4. The filing of change of address information pursuant to § 50-6-905(d)  $20
    5. The filing of a construction services provider workers' compensation exemption renewal  $50
    6. The filing of a construction services provider registration renewal to providers who have not been issued a license by the board  $50
    7. The filling of a revocation pursuant to § 50-6-908(a)  $20
    8. The issuance of a copy of the notice issued pursuant to § 50-6-905(a)(1)  $20
    9. The issuance of a second or subsequent construction services provider workers' compensation exemption registration  $20 per registration
    10. The filing of a second or subsequent construction services provider workers' compensation exemption renewal  $20 per renewal
  2. In addition to the maximum fees authorized in subsection (a), the secretary of state is authorized to charge an online transaction fee to cover costs associated with processing payments for applications submitted online.
  3. Except as provided in subsections (a) and (b), no other fees shall be charged by the secretary of state to administer this part.

50-6-912. Fees.

The secretary of state may charge the following maximum fees for each of the following:

The issuance of a construction services provider registration to providers who have not been issued a license by the board  $50

The issuance of a construction services provider workers' compensation exemption  $50

Acts 2010, ch. 1149, § 13; 2011, ch. 422, § 10; 2012, ch. 1030, § 2.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2011, ch. 422, § 13 provided that if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to this act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

Acts 2012, ch. 1030, § 3 provided that § 2 of the act, which amended subsection (a), shall apply to all registrations or renewals filed on or after January 1, 2013.

50-6-913. Creation of employee misclassification education and enforcement fund — Costs of administration.

  1. There is created a fund to be known as the “employee misclassification education and enforcement fund.” Any fee collected pursuant to § 50-6-912(a) shall be deposited in the employee misclassification education and enforcement fund. Moneys in the fund shall be invested by the state treasurer in accordance with the provisions of § 9-4-603. The fund shall be administered by the administrator of the workers' compensation bureau.
  2. All costs of the secretary of state associated with the administration of this part shall be paid by the administrator of the workers' compensation bureau from the employee misclassification education and enforcement fund. Moneys remaining in the fund after such payment may be expended, subject to appropriation by the general assembly, at the direction of the administrator of the workers' compensation bureau for the purchase of computer software and hardware designed to identify potential employee misclassification activity, for the hiring of additional employees to investigate potential employee misclassification activity, for education of employers and employees regarding the requirements of this part and in support of the ongoing investigation and prosecution of employee misclassification.
  3. Any amount in the employee misclassification education and enforcement fund at the end of any fiscal year shall not revert to the general fund, but shall remain available for the purposes set forth in subsection (b). Interest accruing on investments and deposits of the employee misclassification education and enforcement fund shall be credited to such account, shall not revert to the general fund, and shall be carried forward into each subsequent fiscal year.

Acts 2010, ch. 1149, § 13; 2013, ch. 282, § 1; 2013, ch. 424, § 2; 2015, ch. 341, § 15.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2013, ch. 424, § 3 provided that the act, which amended subsection (b), shall apply to violations occurring on or after July 1, 2013.

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, substituted “administrator of the workers' compensation division” for “commissioner of labor and workforce development” in the last sentence of (a) and in (b).

The 2015 amendment substituted “bureau” for “division” in the last sentence of (a) and in (b).

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-6-913. Creation of employee misclassification education and enforcement fund — Costs of administration. [Applicable to injuries occurring prior to July 1, 2014.]

  1. There is created a fund to be known as the “employee misclassification education and enforcement fund.” Any fee collected pursuant to § 50-6-912(a) shall be deposited in the employee misclassification education and enforcement fund. Moneys in the fund shall be invested by the state treasurer in accordance with the provisions of § 9-4-603. The fund shall be administered by the commissioner of labor and workforce development.
  2. All costs of the secretary of state associated with the administration of this part shall be paid by the commissioner of labor and workforce development from the employee misclassification education and enforcement fund. Moneys remaining in the fund after such payment may be expended, subject to appropriation by the general assembly, at the direction of the commissioner of labor and workforce development for the purchase of computer software and hardware designed to identify potential employee misclassification activity, for the hiring of additional employees to investigate potential employee misclassification activity, for education of employers and employees regarding the requirements of this part and in support of the ongoing investigation and prosecution of employee misclassification.
  3. Any amount in the employee misclassification education and enforcement fund at the end of any fiscal year shall not revert to the general fund, but shall remain available for the purposes set forth in subsection (b). Interest accruing on investments and deposits of the employee misclassification education and enforcement fund shall be credited to such account, shall not revert to the general fund, and shall be carried forward into each subsequent fiscal year.

Acts 2010, ch. 1149, § 13; 2013, ch. 424, § 2.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2013, ch. 424, § 3 provided that the act, which amended subsection (b), shall apply to violations occurring on or after July 1, 2013.

50-6-914. Liability of general contractor, intermediate contractor or subcontractor for injured employee — Claims.

  1. Except as provided for in subsection (b), a general contractor, intermediate contractor or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the general contractor, intermediate contractor or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer.
    1. Notwithstanding subsection (a) and subject to subdivision (b)(2), a general contractor, intermediate contractor or subcontractor shall not be liable for workers' compensation to a construction services provider listed on the registry established pursuant to this part.
      1. No more than three (3) construction services providers performing direct labor on a commercial construction project may be exempt from § 50-6-902(a).
      2. For purposes of subdivision (b)(2)(A), the three (3) construction services providers shall be selected by the general contractor. The limit of three (3) set out in subdivision (b)(2)(A) shall be three (3) individuals listed on the registry as having a workers' compensation exemption and working in the service of a business entity through which the construction services provider obtained such an exemption.
      3. If a general contractor allows a construction services provider to provide services on a commercial construction project while such provider is utilizing an exemption pursuant to this part, the general contractor shall:
        1. Notify each such construction services provider in writing that the provider has been chosen by the general contractor as one of the three (3) construction services providers performing direct labor who may be exempt from § 50-6-902(a); and
        2. Maintain a record identifying each such construction services provider. The general contractor shall make the record maintained pursuant to this subdivision (b)(2)(C)(ii) available for inspection upon request by the general contractor's insurance provider, the department, and the department of commerce and insurance.
  2. Any general contractor, intermediate contractor or subcontractor who pays compensation under subsection (a) may recover the amount paid from any person or entity who, independently of this section, would have been liable to pay compensation to the injured employee, or from any subcontractor.
  3. Every claim for compensation under this section shall be presented first to and instituted against the immediate employer, but the proceedings shall not constitute a waiver of the employee's rights to recover compensation under this chapter from the general contractor, intermediate contractor or subcontractor; provided, that the collection of full compensation from one (1) employer shall bar recovery by the employee against any others, and the employee shall not collect from all employers a total compensation in excess of the amount for which any of the contractors is liable.
  4. This section applies only in cases where the injury occurred on, in, or about the premises on which the general contractor has undertaken to execute work or that are otherwise under the general contractor's control or management.

Acts 2010, ch. 1149, § 13; 2011, ch. 422, § 11.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2011, ch. 422, § 13 provided that if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to this act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

50-6-915. Records not open — Exception for registry.

Notwithstanding any law to the contrary, records maintained by the secretary of state relative to the construction services provider registration and to the workers' compensation exemption registration, other than records displayed on the registry established pursuant to this part, shall not constitute a public record as defined in § 10-7-503 and shall not be open for public inspection.

Acts 2010, ch. 1149, § 13.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

      Cross-References. Confidentiality of public records, § 10-7-504.

50-6-916. Contractor may require a certificate of workers' compensation insurance.

Nothing in this part shall be construed as preventing or prohibiting any contractor from requiring a certificate of workers' compensation insurance from any of its subcontractors or any construction services providers providing services to such contractor.

Acts 2010, ch. 1149, § 13.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

50-6-917. Coverage by a policy of workers' compensation issued through assigned risk plan.

A policy of workers' compensation insurance issued through the assigned risk plan as provided in § 56-5-114 that insures a person engaged in the construction industry shall be governed by this part, and a state agency shall not impose requirements relative to this part on such a policy other than those imposed by this part.

Acts 2010, ch. 1149, § 13.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

50-6-918. Annual recommendations regarding programs and services funded through the employee misclassification education and enforcement fund.

Beginning with fiscal year 2012-2013, and each fiscal year thereafter, the employee misclassification advisory task force created pursuant to former § 50-6-919 [repealed] shall make recommendations to the general assembly regarding programs and services to be funded from the employee misclassification education and enforcement fund created pursuant to § 50-6-913.

Acts 2010, ch. 1149, § 13.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

      Section 50-6-919, referred to in this section, was repealed by Acts 2014, ch. 512, § 2, effective March 6, 2014.

50-6-919. [Repealed.]

Acts 2010, ch. 1149, § 13; 2013, ch. 236, § 31; repealed by Acts 2014, ch. 512, § 2, effective March 6, 2014.

Compiler's Notes. Former § 50-6-919 concerned the creation of the employee misclassification advisory task force.

Acts 2014, ch. 512, § 3, provided that notwithstanding § 4-29-112 or any other law to the contrary, the employee misclassification advisory task force, created by § 50-6-919, shall terminate and shall cease to exist upon March 6, 2014.

50-6-920. Offense — Violation.

  1. It is an offense for any employer to knowingly:
    1. Coerce or attempt to coerce, as a precondition to employment or otherwise, a job applicant to obtain an exemption pursuant to this part; or
    2. Coerce, attempt to coerce, discharge or take any adverse employment action against an employee because the employee has failed to obtain an exemption pursuant to this part.
  2. A violation of subsection (a) is a Class A misdemeanor.

Acts 2010, ch. 1149, § 13.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

      Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

50-6-921. Effective date of exemption — Maintaining exemption under prior law.

The construction services provider workers' compensation exemption for any provider not exempt prior to March 1, 2011, who has been placed on the workers' compensation exemption registry by the secretary of state shall be in effect beginning at 12:00 a.m. on March 1, 2011, regardless of such provider's date of application; provided, that any person exempt under provisions of law in effect prior to March 1, 2011, shall maintain such exemption until March 1, 2011.

Acts 2010, ch. 1149, § 19(b); 2011, ch. 422, § 12.

Compiler's Notes. Acts 2010, ch. 1149, § 17 provided that the provisions of the act, which enacted this part, shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2011, ch. 422, § 13 provided that if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to this act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

50-6-221. Receipts for payments.

Chapter 7
Tennessee Employment Security Law

Part 1
General Provisions

50-7-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Employment Security Law.”

Acts 1947, ch. 29, § 1; C. Supp. 1950, § 6901.1 (Williams, § 6901.25); T.C.A. (orig. ed.), § 50-1301.

Cross-References. Definitions, title 50, ch. 7, part 2.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Unemployment Compensation, §§ 2, 6.

Law Reviews.

A Primer on Unemployment Insurance Law for the General Practitioner (D. Bruce Shine, Sam Watridge, Donald F. Mason, Jr.), 23 No. 2 Tenn. B.J. (1987).

Attorney General Opinions. Relationship between social security disability claims and unemployment insurance benefits.  OAG 10-106, 2010 Tenn. AG LEXIS 112 (10/27/10).

NOTES TO DECISIONS

1. Construction.

Because the policy behind Tennessee's Employment Security Law, T.C.A. § 50-7-101 et seq., is to protect workers in Tennessee from involuntary unemployment and the statute contains no safe harbor provision parallel to § 530, 26 U.S.C. § 3401, that federal provision does not further Tennessee public policy as defined by the Tennessee legislature; Tennessee, therefore, is not bound to provide liability protection parallel to § 530, 26 U.S.C. § 3401 for state employment tax purposes and Tennessee is not bound by a federal § 530, 26 U.S.C. § 3401 determination. Crew One Prods., Inc. v. State, 149 S.W.3d 89, 2004 Tenn. App. LEXIS 127 (Tenn. Ct. App. 2004), review or rehearing denied, Crew One Prods. v. State, — S.W.3d —, 2004 Tenn. LEXIS 823 (Tenn. Sept. 13, 2004).

50-7-102. Declaration of state public policy — Construction.

  1. As a guide to the interpretation and application of this chapter, the public policy of this state is declared to be as follows:
    1. Economic insecurity due to unemployment is a serious menace to the health, morals and welfare of the people of this state; therefore, involuntary unemployment is a subject of general interest and concern that requires action by the general assembly to prevent its spread and to lighten its burden that now so often falls with crushing force upon the unemployed worker and the worker's family;
    2. The achievement of social security requires protection against this greatest hazard to our economic life. This can be provided by encouraging employers to provide more stable employment and, by the systematic accumulation of funds during periods of employment, to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance; and
    3. The general assembly, therefore, declares that in its considered judgment the public good and general welfare of the citizens of this state require the enactment of this measure, under the police powers of the state, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.
  2. This chapter is to be construed in pari materia with Internal Revenue Code, § 3303(a)(1), codified in 26 U.S.C. § 3303(a)(1), and is to be construed in accordance with the construction placed on the Internal Revenue Code, § 3303(a)(1) to the extent the construction is relevant to this chapter, it being the intent of the general assembly that this chapter was adopted with the intent to conform with the Internal Revenue Code, and further that it was the intent of the general assembly to enact the remaining portions of this chapter that are in conformity with the Internal Revenue Code, if some portions of this chapter should be declared not to meet the requirements.

Acts 1947, ch. 29, § 1; C. Supp. 1950, § 6901.1 (Williams, § 6901.25); Acts 1957, ch. 322, § 1; T.C.A. (orig. ed.), § 50-1302.

Law Reviews.

Unemployment Compensation — Availability Requirement, 34 Tenn. L. Rev. 335 (1967).

When Telling the Truth Costs You Your Job: Tennessee's Employment-at-Will Doctrine and the Need for Change (Chad E. Wallace), 39 No. 4 Tenn. B.J. 18 (2003).

NOTES TO DECISIONS

1. Nature and Scope.

This chapter was intended primarily for the benefit of those who, although capable of working, are involuntarily unemployed and prevented from working by other than the results of their own acts. Bridges v. Cavalier Corp., 212 Tenn. 237, 369 S.W.2d 548, 1963 Tenn. LEXIS 418 (1963).

Need or actual indigency is not a requirement for eligibility for unemployment compensation and receipt of income from other sources is not disqualifying. Balding v. Tennessee Dep't of Employment Sec., 212 Tenn. 517, 370 S.W.2d 546, 1963 Tenn. LEXIS 445 (1963).

The purpose of unemployment compensation is to supplement a person's resources during unemployment. Balding v. Tennessee Dep't of Employment Sec., 212 Tenn. 517, 370 S.W.2d 546, 1963 Tenn. LEXIS 445 (1963).

Involuntary unemployment is the basis upon which unemployment compensation is to be allowed. Hesson v. Scott, 217 Tenn. 250, 397 S.W.2d 176, 1965 Tenn. LEXIS 539, 1965 Tenn. LEXIS 540 (1965).

2. Construction.

Since the Employment Security Law, T.C.A. § 50-7-101 et seq., was enacted to alleviate economic insecurity of the individual and his family due to unemployment, disqualifications from benefits are exceptions and should be narrowly construed, and court would not approve denial of compensation by administrative body unless plain language of the law clearly excludes unemployed worker from its benefits. Davis v. Aluminum Co. of America, 204 Tenn. 135, 316 S.W.2d 24, 1958 Tenn. LEXIS 252 (1958).

The statute was not intended as a guarantee that a claimant might obtain benefits unless he was offered employment at precisely the same level of skill as that at which he was last employed but only that the employment be such that the claimant is reasonably fitted therefor by training and experience. Aluminum Co. of America v. Walker, 207 Tenn. 417, 340 S.W.2d 898, 1960 Tenn. LEXIS 474 (1960).

It was not the purpose of the Employment Security Law, T.C.A. § 50-7-101 et seq., to pay employment compensation to employee let out for lack of work until there becomes available to such employee his old job or one paying equal wages but rather “to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting serious social consequences of poor relief assistance” as provided in this section. Aluminum Co. of America v. Walker, 207 Tenn. 417, 340 S.W.2d 898, 1960 Tenn. LEXIS 474 (1960).

The law is a taxing statute and must be strictly construed against the taxing authority. Scott v. Travelers Indem. Co., 215 Tenn. 173, 384 S.W.2d 38, 1964 Tenn. LEXIS 549 (1964).

Tennessee's Employment Security Law, T.C.A. § 50-7-101 et seq., read in pari materia with federal law, does not mandate a holding that Tennessee must include a safe harbor provision parallel to § 530, 26 U.S.C. § 3401 because: (1) T.C.A. § 50-7-102(b) specifies that the chapter is to be construed in pari materia with 26 U.S.C. § 3303(a)(1), and that the Tennessee chapter was adopted with the intent to conform to the Internal Revenue Code; and (2) Section 530, 26 U.S.C. § 3401 is neither part of the federal Unemployment Tax Act, 26 U.S.C. § 3301 et seq., nor a codified section of the Internal Revenue Code. Crew One Prods., Inc. v. State, 149 S.W.3d 89, 2004 Tenn. App. LEXIS 127 (Tenn. Ct. App. 2004), review or rehearing denied, Crew One Prods. v. State, — S.W.3d —, 2004 Tenn. LEXIS 823 (Tenn. Sept. 13, 2004).

Because T.C.A. § 50-7-102 and T.C.A. § 50-7-104 do not mandate a safe harbor provision parallel to § 530, 26 U.S.C. § 3401, Tennessee is not required to relieve an employer from state employment tax liability when the employer has obtained § 530 relief from federal employment tax liability; thus, the appellate court reversed the Tennessee claims commission's judgment determining that the employer was not liable for Tennessee state employment tax by virtue of the federal safe harbor provision, ordering the state to return all funds paid under protest by the employer, and awarding the employer post judgment interest of 10 percent. Crew One Prods., Inc. v. State, 149 S.W.3d 89, 2004 Tenn. App. LEXIS 127 (Tenn. Ct. App. 2004), review or rehearing denied, Crew One Prods. v. State, — S.W.3d —, 2004 Tenn. LEXIS 823 (Tenn. Sept. 13, 2004).

3. Students as Employees.

The purpose of the Tennessee Employment Security Law, T.C.A. § 50-7-101 et seq., as shown by its preamble, does not negate the idea that students should be considered as employees under the statute. Wiley v. Harris, 192 Tenn. 65, 237 S.W.2d 555, 1951 Tenn. LEXIS 382 (1951).

4. Policy and Custom.

Employee was not entitled to unemployment compensation for period in which she did not work due to plant shut-down, in accordance with long and well-established policy and custom to allow employee vacations and annual maintenance and repairs, even though pay during that period was less than employee would have been entitled to as unemployment compensation. Hesson v. Scott, 217 Tenn. 250, 397 S.W.2d 176, 1965 Tenn. LEXIS 539, 1965 Tenn. LEXIS 540 (1965).

5. Legal Counsel.

The stated public policy of the state will be furthered by notifying claimants contesting the denial of unemployment benefits before the department of employment security (now department of labor and workforce development) of the possible availability of free or low-cost legal counsel, and the potential benefit to a claimant far outweighs the burden imposed on the state to notify each claimant that the services may be available. Simmons v. Traughber, 791 S.W.2d 21, 1990 Tenn. LEXIS 213 (Tenn. 1990).

Collateral References.

Unemployment compensation: leaving employment in pursuit of education or to attend training as affecting right to unemployment compensation. 47 A.L.R.5th 775.

Unemployment compensation: leaving employment in pursuit of other employment as affecting right to unemployment compensation. 46 A.L.R.5th 659.

Unemployment compensation: leaving employment to become self-employed or to go into business for oneself as affecting right to unemployment compensation. 45 A.L.R.5th 715.

50-7-103. Saving clause.

  1. The general assembly reserves the right to amend or repeal all, or any part of, this chapter at any time; and there shall be no vested private right of any kind against the amendment or repeal.
  2. All the rights, privileges or immunities conferred hereby or by acts done pursuant thereto shall exist subject to the power of the general assembly to amend or repeal this chapter at any time.

Acts 1947, ch. 29, § 19; C. Supp. 1950, § 6901.19 (Williams, § 6901.43); T.C.A. (orig. ed.), § 50-1357.

50-7-104. Invalidating clause — Conformity to federal law.

  1. If the tax imposed by §§ 3301-3308 of the Internal Revenue Code of 1954, compiled in 26 U.S.C. §§ 3301 – 3308, or any other federal tax against which premiums under this chapter may be credited, has been amended or repealed by congress, or has been held unconstitutional by the supreme court of the United States, with the result that premiums under this chapter, or a major portion of the premiums, may no longer be credited against the federal tax, then no further premiums under this chapter shall be made.
  2. This chapter is to be construed in pari materia with the federal Unemployment Tax Act, compiled in 26 U.S.C. § 3301 et seq., the federal Social Security Act, compiled in 42 U.S.C. § 301 et seq., and any other related federal law and is to be construed in accordance with the construction placed on those acts to the extent the construction is relevant to this chapter, it being the intent of the general assembly that this chapter was adopted with the intent to conform with the federal laws, and, therefore, any section, paragraph, clause or portion of this chapter that is declared by lawful authority not to conform to the law or laws shall be void and of no effect. Further, that it is the intent of the general assembly to enact the remaining portions of this chapter that are in conformity with the relevant provisions of the federal law or laws if some portions of this chapter are declared not to conform with the federal requirements.
  3. If any federal law or laws or any portions of the law or laws effectively requiring state unemployment compensation laws to cover services performed in the employ of governmental employers referred to in § 50-7-207(b)(3) should be repealed by congress or held unconstitutional by any action of the supreme court of the United States, no further premiums or payments in lieu of premiums shall be made by the employers, and the services will no longer be considered covered by this chapter.

Acts 1947, ch. 29, § 20; C. Supp. 1950, § 6901.20 (Williams, § 6901.44); Acts 1967, ch. 208, § 6; 1971, ch. 204, § 14; 1977, ch. 330, § 30; 1978, ch. 744, § 18; T.C.A. (orig. ed.), § 50-1358; Acts 1985, ch. 318, §§ 1, 2.

Law Reviews.

Tennessee Labor Decisions — 1901-1954, 8 Vand. L. Rev. 73 (1954).

NOTES TO DECISIONS

1. Construction.

Because T.C.A. §§ 50-7-102 and 50-7-104 do not mandate a safe harbor provision parallel to § 530, 26 U.S.C. § 3401, Tennessee is not required to relieve an employer from state employment tax liability when the employer has obtained § 530 relief from federal employment tax liability; thus, the appellate court reversed the Tennessee claims commission's judgment determining that the employer was not liable for Tennessee state employment tax by virtue of the federal safe harbor provision, ordering the state to return all funds paid under protest by the employer, and awarding the employer post judgment interest of 10 percent. Crew One Prods., Inc. v. State, 149 S.W.3d 89, 2004 Tenn. App. LEXIS 127 (Tenn. Ct. App. 2004), review or rehearing denied, Crew One Prods. v. State, — S.W.3d —, 2004 Tenn. LEXIS 823 (Tenn. Sept. 13, 2004).

50-7-105. Repeal or suspension of chapter upon invalidity of federal statute.

  1. Notwithstanding anything contained in this chapter to the contrary, if the Unemployment Compensation Amendments of 1976, as codified in 5 U.S.C. §§ 8501, 8503-8506, 8521, 8522; 26 U.S.C. §§ 3301, 3303, 3304, 3306, 3309, 6157; 29 U.S.C. §§ 49b, 49d; and 42 U.S.C. §§ 603(a), 607, 1101, 1301, 1321, 1382, 1382(a), 1382(d), 1382(e), are adjudged invalid or unconstitutional in their application to the employees of this state or any of its agencies or political subdivisions by a court of competent jurisdiction, then the coverage of those employees under Acts 1977, chapter 330, as codified in this chapter, is automatically repealed to the extent of the adjudged inapplicability.
  2. The repeal shall be effective from the date of final disposition upon appeal or from the date of expiration of the right of appeal.
  3. If the effect of Pub. L. No. 94-566 as applied to employees of this state or any of its agencies or political subdivisions is suspended by injunction issued by a court of competent jurisdiction, then the coverage of those employees under Acts 1977, chapter 330, as codified in this chapter, is automatically suspended to the extent of the enjoined applicability of that law.

Acts 1978, ch. 851, § 1; T.C.A., § 50-1363.

Compiler's Notes. For the codification of Acts 1977, ch. 330, see the Session Law Disposition Table in Volume 13 of the Tennessee Code Annotated.

50-7-106. Employers not included by employment security law — Notice to employees.

If this chapter does not include an employer within the requirement to provide unemployment compensation insurance coverage to its employees, then the employer shall notify in writing each present and prospective employee.

Acts 1991, ch. 446, § 1.

50-7-107. More Jobs and Revenues, Less Hassle and Expenses, Help Businesses and Taxpayers Act of 2009.

  1. This section shall be known and may be cited as the “More Jobs and Revenues, Less Hassle and Expenses, Help Businesses and Taxpayers Act of 2009.”
  2. The department of revenue, with the assistance of all appropriate state departments and agencies, shall consult and explore with the Tennessee congressional delegation, the internal revenue service and other appropriate federal agencies the possibility of simplifying and streamlining federal and state requirements placed upon citizens who employ household employees and the forms such employers must file to comply with the Tennessee Employment Security Law, compiled in title 50, chapter 7, the federal Unemployment Tax Act, compiled in 26 U.S.C. § 3301 et seq., social security and medicare taxes and other state and federal laws. Such consultation should include exploration of the possibility of filing one (1) simplified form for both state and federal purposes to make the task of complying with state and federal laws and regulations easier, faster, simpler and cheaper for citizens employing household workers.

Acts 2009, ch. 522, §§ 1, 2.

Code Commission Notes.

Although Acts 2004, ch. 946, § 1 provided that the act section be set out as § 50-7-107, the code commission believes the legislature intended to codify the provisions of Acts 2004, ch. 946, § 1 as § 50-7-207(c)(18).

Compiler's Notes. For the Preamble to the act regarding complying with federal and state laws and regulations concerning the employment of household employees, please refer to Acts 2009, ch. 522.

50-7-108. Report by commissioner of labor and workforce development on the condition of the unemployment compensation fund — Monthly statement.

  1. The commissioner of labor and workforce development shall provide a report to the general assembly concerning the condition of the unemployment compensation fund no later than February 1 of each year based upon the findings as to the balance on December 31 of each year under § 50-7-403(j)(1).
  2. The report provided pursuant to subsection (a) must include:
    1. The unemployment compensation fund balance as credited to the state's account with the United States department of treasury as of December 31 of each year; and
    2. The projected unemployment compensation fund revenues and expenditures and unemployment compensation fund balances for the eighteen-month period following December 31. The report shall be prepared and documented in accordance with sound statistical methodology and shall be accompanied by a written explanation of the methodology.
  3. The commissioner of labor and workforce development shall provide a monthly statement to the general assembly concerning the unemployment compensation fund balance on or before the last business day of each month based upon the findings as to the balance on the last day of the preceding month.

Acts 2009, ch. 550, § 15; 2018, ch. 642, § 1.

Amendments. The 2018 amendment rewrote the section which read: “The commissioner of labor and workforce development shall report to the general assembly concerning the condition of the unemployment trust fund during the first week of January and the first week of July of each year.”

Effective Dates. Acts 2018, ch. 642,  § 5. July 1, 2018.

50-7-109. Electronic communications authorized.

Any notification, notice, decision, or correspondence as prescribed by the commissioner for the administration of this chapter may be sent to or received by the department through electronic means, if an individual or entity agrees to send or receive such notifications, notices, decisions, or correspondence through electronic means.

Acts 2015, ch. 95, § 1.

Effective Dates. Acts 2015, ch. 95, § 9. July 1, 2015.

Part 2
Definitions

50-7-201. Definitions generally.

As used in this chapter, unless the context otherwise requires, the terms defined in this part have the meanings respectively ascribed to them.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); T.C.A. (orig. ed.), § 50-1303.

Cross-References. Definitions for extended benefits program, § 50-7-305.

Law Reviews.

A Primer on Unemployment Insurance Law for the General Practitioner (D. Bruce Shine, Sam Watridge, Donald F. Mason, Jr.), 23 No. 2 Tenn. B.J. 11 (1987).

50-7-202. “Benefits” defined.

“Benefits” means the money payments payable to a claimant, as provided in this chapter, with respect to the claimant's unemployment.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); T.C.A. (orig. ed.), § 50-1304; Acts 1985, ch. 318, § 3.

50-7-203. “Administrator,” “commissioner” and “department” defined.

  1. “Administrator” means the chief administrative officer of the division of employment security of the department of labor and workforce development.
  2. “Commissioner” means the commissioner of labor and workforce development.
  3. “Department” means the department of labor and workforce development.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); T.C.A. (orig. ed.), § 50-1305; Acts 1999, ch. 520, § 41.

Cross-References. Commissioner, appointment and powers, §§ 4-3-111 and 4-3-112.

50-7-204. “Attributable to service” defined — “Payments in lieu of premiums” and “premiums” defined.

As used in this chapter, unless the context otherwise requires:

  1. “Attributable to service” expressly means any and all benefits paid based on wages earned while in the employ of any and all eligible employers who elect to reimburse the state for benefits paid in lieu of premiums wherever an election is authorized by this chapter;
  2. “Payments in lieu of premiums,” whether singular or plural:
    1. Means the money payments made into the state unemployment compensation fund by employers pursuant to § 50-7-403(h) and (i);
    2. Means payments in lieu of contributions within the meaning and contemplation of the federal Unemployment Tax Act, subtitle C, chapter 23, of the Internal Revenue Code of 1954, compiled in 26 U.S.C. § 3301 et seq.; and
    3. Is deemed to be taxes due to the state; and
  3. “Premiums,” except for purposes of §§ 50-7-213(d)(1)(D)(i), 50-7-501(b), and 50-7-502(a), whether singular or plural:
    1. Means the money payments to the state unemployment compensation fund required by § 50-7-403(e)–(g);
    2. Means contributions within the meaning and contemplation of the federal Unemployment Tax Act, Subtitle C, Chapter 23 of the Internal Revenue Code of 1954, compiled in 26 U.S.C. § 3301 et seq.; and
    3. Is deemed to be taxes due to the state.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); Acts 1973, ch. 130, § 1; 1981, ch. 249, § 1; T.C.A. (orig. ed.), § 50-1306; Acts 1985, ch. 318, § 4; 1987, ch. 148, § 1.

50-7-205. “Employer” defined.

“Employer” means:

  1. Any employing unit that, after December 31, 1971:
    1. In any calendar quarter, in either the current or preceding calendar year, paid for service in employment wages of one thousand five hundred dollars ($1,500) or more; or
    2. For some portion of a day in each of twenty (20) different calendar weeks, whether or not the weeks were consecutive, in either the current or the preceding calendar year, had in employment at least one (1) individual, regardless of whether the same individual was in employment on each day;
  2. Any employing unit that has been determined to be a successor of an employer pursuant to § 50-7-403(b)(2);
  3. Any employing unit not an employer by reason of any other paragraph of this section, for which within either the current or preceding calendar year services in employment are or were performed with respect to which the employing unit is liable for any federal tax against which credit may be taken for contributions required to be paid into a state unemployment compensation fund;
  4. Any employing unit for which service in employment as defined in § 50-7-207(b)(3) is performed, except as provided in subdivision (11);
  5. Any employing unit for which service in employment as defined in § 50-7-207(b)(4) and (c)(5) is performed after December 31, 1971, except as provided in subdivision (11);
  6. Any employing unit that, having become an employer under this chapter has not, under § 50-7-405, ceased to be an employer subject to this chapter;
  7. For the effective period of its election pursuant to § 50-7-405(d), any employing unit that has elected to become fully subject to this chapter;
  8. For purposes of this section, “employment” includes service that would constitute employment but for the fact that the service is deemed to be performed entirely within another state pursuant to an election under an arrangement entered into in accordance with § 50-7-706 by the commissioner and an agency charged with the administration of any other state or federal unemployment compensation law;
  9. For purposes of this section, if any week includes both December 31 and January 1, the days of that week up to January 1 shall be deemed one (1) calendar week and the days beginning January 1 another week;
    1. Any employing unit for which agricultural labor, as defined in § 50-7-207(b)(7) and (c)(3), is performed after December 31, 1977;
    2. Any employing unit for which domestic service in employment, as defined in § 50-7-207(b)(8), is performed after December 31, 1977; and
    1. In determining whether or not an employing unit for which service other than domestic service is also performed is an employer under subdivision (1), (4), (5) or (10)(A), the wages paid to or the employment of an employee performing domestic service after December 31, 1977, shall not be taken into account. If an employing unit is determined an employer of agricultural labor, the employing unit shall be determined an employer for the purposes of subdivision (1).
    2. In determining whether or not an employing unit for which service other than agricultural labor is also performed is an employer under subdivision (1), (4), (5) or (10)(B), the wages paid to or the employment of an employee performing service in agricultural labor after December 31, 1977, shall not be taken into account. If an employing unit is determined an employer of agricultural labor, the employing unit shall be determined an employer for the purposes of subdivision (1).

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); Acts 1955, ch. 21, § 1; 1955, ch. 115, § 1; 1971, ch. 204, § 1; 1977, ch. 330, § 1; T.C.A. (orig. ed.), § 50-1308; Acts 1984, ch. 702, §§ 1, 2; 1985, ch. 318, §§ 5-10; T.C.A., § 50-7-206; Acts 2005, ch. 357, § 1.

Compiler's Notes. Former § 50-7-205, concerning the definition of “employing unit,” was transferred to § 50-7-206 in 1999.

Law Reviews.

Tax Problems of the Practicing Attorney (G. George Wayne White), 27 Tenn. L. Rev. 587 (1960).

Collateral References.

Constitutionality construction and application of provision of Unemployment Compensation Act subjecting to its provisions an employer purchasing or succeeding to the business of another employer. 4 A.L.R.2d 721.

Employment units that are affiliated or under a common control, validity, construction and application of provisions of unemployment compensation acts as to. 142 A.L.R. 918.

Receiver as within unemployment compensation acts. 143 A.L.R. 984.

50-7-206. “Employing unit” defined — Common paymaster.

  1. “Employing unit” means any individual or type of organization, including any partnership, association, trust, estate, joint stock company, insurance company, limited liability company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor of the individual or organization, or the legal representative of a deceased person, that has or subsequent to January 1, 1935, had, in its employ one (1) or more individuals performing services for the person or entity within this state; or the state, or any department, political subdivision, county or municipality of the state that has in its employ one (1) or more individuals performing services for it within this state.
  2. All individuals performing services within this state for any employing unit that maintains two (2) or more separate establishments within this state shall be deemed to be employed by a single employing unit for all the purposes of this chapter.
  3. Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by the employing unit for all the purposes of this chapter, whether the individual was hired or paid directly by the employing unit or by the agent or employee; provided, that the employing unit had actual or constructive knowledge of the performance of the work.
  4. Common Paymaster.  For purposes of this chapter, if two (2) or more related corporations concurrently employ the same individual and compensate the individual through a common paymaster that is one of the corporations, each corporation shall be considered to have paid as remuneration to the individual only the amounts actually disbursed by it to the individual and shall not be considered to have paid as remuneration to the individual amounts actually disbursed to the individual by another of the corporations.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); Acts 1951, ch. 139, § 1; T.C.A. (orig. ed.), § 50-1307; Acts 1995, ch. 239, § 1; 1997, ch. 81, § 1; T.C.A., § 50-7-205.

Compiler's Notes. Former § 50-7-206, concerning the definition of “employer,” was transferred to § 50-7-205 in 1999.

NOTES TO DECISIONS

1. Application.

Where barber who owned barber shop leased spaces in his building to individual barbers at specified monthly rental and leasing barbers had no contract of hire with shop owner, did not perform services for owner or out of which he profited, received no wages from him and were not subject to his control as to working hours, shop owner was not an employing unit within the meaning of the employment security law, even though permit to operate shop carried with it the duty to manage and supervise shop as specified in § 62-3-109 since that statute only related to sanitation and safety and did not have effect of creating employer-employee relationship. Burson v. Moore, 224 Tenn. 55, 450 S.W.2d 309, 1970 Tenn. LEXIS 300 (1970).

50-7-207. “Employment” and related definitions.

  1. Definition of “Employment.”  For purposes of this chapter and subject to the special rules contained in subsection (e), and the definitions contained in subsection (f), “employment” means service that meets all of the following conditions:
    1. It is within any category of “included service” as listed in subsection (b);
    2. It is not within any category of “excluded service” as listed in subsection (c); and
    3. It is within any category of “Tennessee service” as listed in subsection (d).
  2. “Included Service.”  For purposes of this section, “included service” means any of the following:
    1. Service performed prior to January 1, 1978, that was employment as defined in this section prior to January 1, 1978;
    2. Subject to the other provisions of this section, service performed after December 31, 1977, including service in interstate commerce, by:
      1. Any officer of a corporation;
      2. Any individual who performs services for an employer for wages if the services are performed by the individual qualify as an employer-employee relationship with the employer based upon consideration of the following twenty (20) factors as described in the twenty-factor test of Internal Revenue Service Revenue Ruling 87-41, 1987-1 C.B. 296:
        1. Instructions.   A worker who is required to comply with other persons' instructions about when, where, and how the worker is to work is ordinarily an employee. This control factor is present if the person or persons for whom the services are performed have the right to require compliance with instructions;
        2. Training.   Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meetings, or by using other methods indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner;
        3. Integration.   Integration of the worker's services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the workers who perform those services must necessarily be subject to a certain amount of control by the owner of the business;
        4. Services rendered personally.   If the services must be rendered personally, then presumably the persons for whom the services are performed are interested in the methods used to accomplish the work as well as in the results;
        5. Hiring, supervising, and paying assistants.   If the person or persons for whom the services are performed hire, supervise, and pay assistants, then that factor generally shows control over the workers on the job. However, if one (1) worker hires, supervises, and pays the other assistants pursuant to a contract under which the worker agrees to provide materials and labor and under which the worker is responsible only for the attainment of a result, then this factor indicates an independent contractor status;
        6. Continuing relationship.   A continuing relationship between the worker and the person or persons for whom the services are performed indicates that an employer-employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals;
        7. Set hours of work.   The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control;
        8. Full time required.   If the worker must devote substantially full time to the business of the person or persons for whom the services are performed, then the person or persons have control over the amount of time the worker spends working and impliedly restrict the worker from doing other gainful work. An independent contractor is free to work when and for whom the independent contractor chooses;
        9. Doing work on employer's premises.   If the work is performed on the premises of the person or persons for whom the services are performed, then that factor suggests control over the worker, especially if the work could be done elsewhere. Work done off the premises of the person or persons receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the worker is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform those services on the employer's premises. Control over the place of work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass territory within a certain time, or to work at specific places as required;
        10. Order or sequence set.   If a worker must perform services in the order or sequence set by the person or persons for whom the services are performed, then that factor shows that the worker is not free to follow the worker's own pattern of work but instead must follow the established routines and schedules of the person or persons for whom the services are performed. Often, because of the nature of an occupation, the person or persons for whom the services are performed do not set the order of the services or set the order infrequently. It is sufficient to show control, however, if the person or persons retain the right to do so;
        11. Oral or written reports.   A requirement that the worker submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control;
        12. Payment by hour, week, month.   Payment by the hour, week, or month generally points to an employer-employee relationship; provided, that this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job. Payment made by the job or on straight commission generally indicates the worker is an independent contractor;
        13. Payment of business or traveling expenses.   If the person or persons for whom the services are performed ordinarily pay the worker's business or traveling expenses, then the worker is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the worker's business activities;
        14. Furnishing of tools and materials.   The fact that the person or persons for whom the services are performed furnish significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship;
        15. Significant investment.   If the worker invests in facilities that are used by the worker in performing services and are not typically maintained by employees, such as the maintenance of an office rented at fair value from an unrelated party, then that factor tends to indicate that the worker is an independent contractor. However, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for the facilities and the existence of an employer-employee relationship;
        16. Realization of profit or loss.   A worker who can realize a profit or suffer a loss as a result of the worker's services, in addition to the profit or loss ordinarily realized by employees, is generally an independent contractor but the worker who cannot is an employee. For example, if the worker is subject to a real risk of economic loss due to significant investments or a bona fide liability for expenses, such as salary payments to unrelated employees, then that factor indicates that the worker is an independent contractor. The risk that a worker will not receive payment for the worker's services is common to both independent contractors and employees and does not constitute sufficient economic risk to support treatment as an independent contractor;
        17. Working for more than one firm at a time.   If a worker performs more than de minimis services for multiple unrelated persons or firms at the same time, then that factor generally indicates that the worker is an independent contractor. However, a worker who performs services for more than one (1) person may be an employee of each of the persons, especially where such persons are part of the same service arrangement;
        18. Making service available to general public.   The fact that a worker makes the worker's services available to the general public on a regular and consistent basis indicates an independent contractor relationship;
        19. Right to discharge.   The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer's instructions. An independent contractor cannot be fired so long as the independent contractor produces a result that meets the contract specifications; and
        20. Right to terminate.   If the worker has the right to end the worker's relationship with the person for whom the services are performed at any time the worker wishes without incurring liability, then that factor indicates an employer-employee relationship;
      3. Any individual other than an individual described in subdivision (b)(2)(A) or (b)(2)(B) who performs services for remuneration for any person:
        1. In either of the following capacities:
          1. As an agent driver or commission driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages other than milk, or laundry or dry-cleaning service, for the driver's principal; or
          2. As a traveling or city salesperson, other than as an agent driver or commission driver, engaged on a full-time basis in the solicitation on behalf of, and the transmission to, the salesperson's principal, except for side-line sales activities on behalf of some other person, of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations; and
        2. In the presence of all of the following conditions:
          1. The contract of service contemplates that substantially all of the services are to be performed personally by the individual;
          2. The individual does not have a substantial investment in facilities used in connection with the performance of services other than in facilities for transportation; and
          3. The services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed;
    3. Except as provided in subdivision (c)(5), service performed by an individual:
      1. After December 31, 1971 and prior to January 1, 1978, in the employ of this state or any of its instrumentalities, or in the employ of this state and one (1) or more other states or their instrumentalities, for a hospital or institution of higher education located in this state; provided, that the service is excluded from “employment” as defined in the federal Unemployment Tax Act, 26 U.S.C. § 3306(c)(7), and does not constitute “excluded employment” under subdivision (c)(5); and
      2. After December 31, 1977, in the employ of this state or any of its instrumentalities or any political subdivision of the state or any of its instrumentalities or any instrumentality of more than one (1) of the foregoing or any instrumentality of any of the foregoing and one (1) or more other states or political subdivisions; provided, that the service is excluded from “employment” as defined in the federal Unemployment Tax Act, 26 U.S.C. § 3306(c)(7), and does not constitute “excluded employment” under subdivision (c)(5);
    4. Except as provided in subdivision (c)(5), service performed by an individual after December 31, 1977, in the employ of a religious, charitable, educational or other organization, but only if both of the following conditions are met:
      1. The service is excluded from “employment” as defined in the federal Unemployment Tax Act, 26 U.S.C. § 3306(c)(8); and
      2. The organization had four (4) or more individuals in employment for some portion of a day in each of twenty (20) different weeks, whether or not the weeks were consecutive, within either the current or preceding calendar year, regardless of whether they were employed at the same point in time;
    5. Service performed after December 31, 1971, by an officer or crew member of an American vessel or American aircraft or in connection with the American vessel or American aircraft; provided, that it meets the conditions of subdivision (d)(5);
    6. Notwithstanding subsection (c), service with respect to which a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund or that as a condition for full credit against the tax imposed by the federal Unemployment Tax Act, compiled in 26 U.S.C. § 3301 et seq., is required to be covered by this chapter;
    7. Service performed after December 31, 1977, by an individual in agricultural labor as defined in subdivision (f)(1); provided, that:
      1. The service is performed for a person who either:
        1. During any calendar quarter in either the current or preceding calendar year paid remuneration in cash of twenty thousand dollars ($20,000) or more to individuals employed in agricultural labor, not taking into account service in agricultural labor performed before January 1, 1980, by an alien referred to in subdivision (b)(7)(B); or
        2. For some portion of a day in each of twenty (20) different calendar weeks, whether or not the weeks were consecutive, in either the current or the preceding calendar year, employed in agricultural labor ten (10) or more individuals, regardless of whether they were employed at the same point in time, not taking into account service in agricultural labor performed before January 1, 1980, by an alien referred to in subdivision (b)(7)(B);
      2. For purposes of this section, any individual who is a crew member furnished by a crew leader to perform service in agricultural labor for any other person shall be treated as an employee of the crew leader, if both of the following conditions are met:
        1. Substantially all the members of the crew operate or maintain tractors, mechanized harvesting or cropdusting equipment or any other mechanized equipment, that is provided by the crew leader; and
        2. The individual is not an employee of the other person within the meaning of subdivision (a)(2);
      3. For the purposes of this subdivision (b)(7), in the case of any individual who is furnished by a crew leader to perform service in agricultural labor for any other person and who is not treated as an employee of the crew leader under subdivision (b)(7)(B), the following shall apply:
        1. The other person and not the crew leader shall be treated as the employer of the individual; and
        2. The other person shall be treated as having paid cash remuneration to the individual in any amount equal to the amount of cash remuneration paid to the individual by the crew leader, either on the person's own behalf or on behalf of the other person, for the service in agricultural labor performed for the other person;
    8. Domestic service performed after December 31, 1977, in a private home, local college club, or local chapter of a college fraternity or college sorority and performed for a person who paid cash remuneration of one thousand dollars ($1,000) or more after December 31, 1977, in any calendar quarter, to an individual or individuals employed in the domestic service in the current calendar year or the preceding calendar year;
    9. During the effective period of the election, service covered by an election pursuant to § 50-7-405 and service covered by an election duly approved by the administrator in accordance with an arrangement pursuant to § 50-7-405; or
    10. The entire service of an individual in the case of service that is not covered under this section and performed entirely without this state, with respect to no part of which contributions are required and paid under any unemployment compensation law of any other state or of the federal government; provided, that the individual performing the services is a resident of this state and the administrator approves the election of the employing unit for which the services are performed.
  3. “Excluded Service.”  For purposes of this section, “excluded service” means any of the following, unless the employing unit for which the service is performed is liable for a federal tax on the remuneration paid for the service against which credit may be taken for premiums paid under this chapter, or unless the employing unit has elected that the service shall be deemed to constitute employment subject to this chapter pursuant to § 50-7-405, in which cases the service shall be “included service” as provided in subsection (b):
    1. Service performed in the employ of any other state or its political subdivisions, or of the United States government, or of an instrumentality of any other state or states or their political subdivisions or of the United States, except that after 1961, to the extent that the congress of the United States permits states to require any instrumentalities of the United States to make payments into an unemployment fund under a state employment security law, this chapter shall apply to those instrumentalities, and to service performed for the instrumentalities, in the same manner, to the same extent, and on the same terms as to all other employers, employing units, individuals, and service; provided, that, if this state is not certified for any year by the secretary of labor under the federal Unemployment Tax Act, 26 U.S.C. § 3304(c), the payments required of the instrumentalities with respect of that year shall be refunded by the commissioner for the fund in the same manner and within the same period as is provided in § 50-7-404(f) with respect to premiums erroneously collected;
    2. Service performed after June 30, 1939, with respect to which unemployment compensation is payable under the Railroad Unemployment Insurance Act of Congress, 52 Stat. 1094, compiled in 45 U.S.C. § 351 et seq., and services with respect to which unemployment benefits are payable under an unemployment compensation system for maritime employees established by an act of congress; provided, that the commissioner is authorized and directed to enter into agreements with the proper agencies under the act of congress, which agreements shall become effective in the manner provided in § 50-7-603, to provide reciprocal treatment to individuals who have, after acquiring potential rights to benefits under this chapter, acquired rights for unemployment compensation under the act of congress, or who have, after acquiring potential rights to unemployment compensation under the act of congress, acquired rights to benefits under this chapter;
    3. Except as provided in subsection (b), service performed by an individual in agricultural labor as defined in subdivision (f)(1);
    4. Service performed by an individual in the employ of the individual's son, daughter or spouse, and service performed by a child under eighteen (18) years of age in the employ of the child's father or mother;
    5. Notwithstanding subdivisions (b)(3) and (4), services performed:
      1. In the employ of a church, convention or association of churches;
      2. In the employ of an organization that is operated primarily for religious purposes and that is operated, supervised, controlled or principally supported by a church, convention or association of churches;
      3. By a duly ordained, commissioned or licensed minister of a church in the exercise of the minister's ministry or by a member of a religious order in the exercise of duties required by the religious order;
      4. After December 31, 1977, in the employ of a governmental entity referred to in subdivision (b)(3) if the service is performed by an individual in the exercise of duties:
        1. As an elected official;
        2. As a member of a legislative body, or a member of the judiciary, of a state or political subdivision;
        3. As a member of the state national guard or air national guard;
        4. As an employee serving on a temporary basis in the case of fire, storm, snow, earthquake, flood or similar emergency; or
        5. In a position that, under or pursuant to the laws of this state, is designated as either:
          1. A major nontenured policymaker or advisory position; or
          2. A policymaking or advisory position the performance of the duties of which ordinarily does not require more than eight (8) hours per week;
      5. In a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury, or providing remunerative work for individuals who, because of their impaired physical or mental capacity, cannot be readily absorbed in the competitive labor market, by an individual receiving the rehabilitation or remunerative work;
      6. After December 31, 1977, in a custodial or penal institution by an inmate of the institution and, after June 30, 1999, by an inmate committed to a custodial or penal institution for any employer; or
      7. As part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision of a state, by an individual receiving the work-relief or work-training, unless otherwise required by the agency or by law governing the agency assisting or financing in whole or in part the unemployment work-relief or work-training program as a condition to the assistance or financing;
    6. Except to the extent set forth in subdivisions (b)(4) and (6), service performed in the employ of the corporation, community chest, fund or foundation, organized and operated exclusively for religious, charitable, scientific, literary or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual;
    7. Service performed by an individual for an employer as an insurance agent or as an insurance solicitor, if all the service performed by the individual for the employer is performed for remuneration solely by way of commission;
    8. Service performed in the employ of a school, college or university, if the service is performed:
      1. By a student who is enrolled and is regularly attending classes at the school, college or university; or
      2. By the spouse of the student, if the spouse is advised, at the time the spouse commences to perform the service, both that:
        1. The employment of the spouse to perform the service is provided under a program to provide financial assistance to the student by the school, college or university; and
        2. The employment will not be covered by any program of unemployment insurance;
    9. Service performed by an individual who is enrolled at a nonprofit or public educational institution that normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on, as a student in a full-time program, that is taken for credit and that combines academic instruction with work experience, if the service is an integral part of the program, and the institution has so certified to the employer, except that this subdivision (c)(9) does not apply to service performed in a program established for or on behalf of an employer or group of employers;
    10. Service performed in the employ of a hospital, if the service is performed by a patient of the hospital, as defined in subdivision (f)(7);
    11. Service performed by a qualified real estate agent if:
      1. The individual is a licensed real estate agent;
      2. Substantially all of the remuneration for the services performed as a real estate agent is directly related to sales or other output, including the performance of services, rather than the number of hours worked; and
      3. The services performed by the individual are performed pursuant to a written contract between the individual and the person for whom the services are performed, and the contract provides that the individual will not be treated as an employee with respect to the services for federal tax (FUTA) purposes;
    12. Service performed by a direct seller, including an individual engaged in the trade or business of the delivery or distribution of newspapers or shopping news, if:
      1. The individual is engaged in the trade or business of selling or soliciting the sale of consumer products to any buyer on a:
        1. Buy-sell basis;
        2. Deposit-commission basis; or
        3. Any similar basis that the United States secretary of treasury prescribes by regulations, for resale by the buyer or any other individual, in the home or otherwise than in a permanent retail establishment; or
      2. The individual is engaged in the trade or business of selling or soliciting the sale of consumer products to a consumer in the home or somewhere other than in a permanent retail establishment; and
        1. Substantially all of the remuneration for the services performed as a direct seller is directly related to sales or output, including the performance of services, rather than to the number of hours worked; and
        2. The services performed by the individual are performed pursuant to a written contract between the individual and the person for whom the services are performed, and the contract provides that the individual will not be treated as an employee with respect to the services for federal tax (FUTA) purposes;
    13. Service performed by a full-time student in the employ of an organized camp, if:
      1. The camp did not operate for more than seven (7) months in the calendar year and did not operate for more than seven (7) months in the preceding calendar year, or had average gross receipts for any six (6) months in the preceding calendar year that were not more than thirty-three and one third percent (33 1/3%) of its average gross receipts for the other six (6) months in the preceding calendar year;
      2. The full-time student performed services in the employ of the camp for less than thirteen (13) calendar weeks in the calendar year; and
      3. For purposes of this subdivision (c)(13), an individual shall be treated as a full-time student for any period during which the individual is enrolled as a full-time student at an educational institution, or that is between academic years or terms if the individual was enrolled as a full-time student at an educational institution for the immediately preceding academic year or term, and there is reasonable assurance that the individual will be so enrolled for the immediately succeeding academic year or term;
    14. Service performed by an individual on a boat, or boats in the case of a fishing operation involving more than one (1) boat, engaged in catching fish or other forms of aquatic animal life under an arrangement with the owner or operator of the boat pursuant to which:
      1. The individual does not receive any cash remuneration, other than as provided in subdivision (c)(14)(B);
      2. The individual receives a share of the boat's or boats' catch of fish or other forms of aquatic animal life or a share of the proceeds from the sale of the catch;
      3. The amount of the individual's share depends on the amount of the boat's or boats' catch of fish or other forms of aquatic animal life, but only if the operating crew of the boat, or each boat from which the individual receives a share in the case of a fishing operation involving more than one (1) boat, is normally made up of fewer than ten (10) individuals;
    15. Service performed by an individual as a product demonstrator pursuant to a written contract between the individual and a person whose principal business is providing demonstrators to third parties for those purposes, and the contract provides that the individual will not be treated as an employee with respect to the services;
    16. The service performed on or after January 1, 1995, by an individual who is an alien admitted to the United States to perform service in agricultural labor pursuant to §§ 101(a)(15)(H) and 214(c) of the Immigration and Nationality Act, codified in 8 U.S.C. §§ 1101(a)(15)(H) and 1184, respectively;
    17. After June 30, 1999, service performed by an election official or an election worker, if the amount of remuneration received by the individual during the calendar year for services as an election official or election worker is less than one thousand dollars ($1,000); and
      1. Notwithstanding any provision of this chapter or any other law to the contrary, companion-sitters who receive referrals under registry or referral arrangements substantially similar to those addressed within the IRS determination shall not be classified as employees of the person, corporation or business entity pursuant to this chapter, unless the person, corporation or business entity and the department mutually agree to the reclassification of the companion sitters as employees of the person, corporation or business entity in order to absolve the elderly, sick or disabled clients or the parents of the children from liability for payment of any premiums, fees or other costs that may be imposed pursuant to the Tennessee Employment Security Law, if:
        1. A person, corporation or business entity maintains an employment registry or referral service exclusively for companion sitters seeking employment opportunities for providing personal attendant, companionship, household care, ancillary health care or related services to children, the elderly, or sick or disabled clients;
        2. The companion sitters do not provide personal attendant, companionship, household care, ancillary health care or related services for hire to nonprofit organizations, Indian tribes or state or local governments; and
        3. Pursuant to the federal Insurance Contributions Act, the federal Unemployment Tax Act, or the collection of income tax at source on wages, chapters 21, 23 and 24, respectively, Subtitle C, Internal Revenue Code, compiled in 26 U.S.C. § 3101 et seq., 26 U.S.C. § 3301 et seq., and 26 U.S.C. § 3401 et seq., respectively, the Internal Revenue Service issues a determination that a companion-sitter is not an employee of the person, corporation or business entity under the typical registry or referral arrangements of the person, corporation or business entity;
      2. Subdivision (c)(18)(A) shall not be construed to require forgiveness or refund of any premiums, fees or other related costs duly imposed prior to July 1, 2004.
  4. “Tennessee Service.”  For purposes of this section, “Tennessee service” means any of the following:
    1. Any individual's entire service, performed within or both within and without this state, if the service is localized in this state. Service shall be deemed to be localized within a state if either:
      1. The service is performed entirely within the state; or
      2. The service is performed both within and without the state but the service performed without the state is incidental to the individual's service within the state; for example, is temporary or transitory in nature or consists of isolated transactions;
    2. An individual's entire service, performed within and without this state, if the service is not localized in any state but some of the service is performed in this state and:
      1. The individual's base of operations is in this state; or
      2. If there is no base of operations, then the place from which the service is directed or controlled is in this state; or
      3. The individual's base of operations or place from which the service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in this state;
    3. Service wherever performed within the United States, or Canada, if both:
      1. The service is not covered under the unemployment compensation law of any other state or Canada; and
      2. The place from which the service is directed or controlled is in this state;
    4. Service that is performed after December 31, 1971, except service performed in Canada, by an individual who is a citizen of the United States and who is in the employ of an American employer, other than service that is deemed to be “Tennessee employment” under subdivisions (d)(1) and (2) or to be “employment” under the parallel provisions of another state's law, if:
      1. The employer's principal place of business in the United States is located in this state; or
      2. The employer has no place of business in the United States, but:
        1. The employer is an individual who is a resident of this state;
        2. The employer is a corporation that is organized under the laws of this state; or
        3. The employer is a partnership or a trust and the number of the partners or trustees who are residents of this state is greater than the number who are residents of any other state; or
      3. None of the criteria of subdivisions (d)(4)(A) and (B) are met, but the employer has elected coverage in this state or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits, based on the service under the laws of this state;
    5. Specifically in the case of included service described in subdivision (b)(5), service where the operating office from which the operations of the American vessel, operating on navigable waters within the United States, or the operations of the American aircraft within the United States, or the operations of both the vessel and the aircraft within and without the United States are ordinarily and regularly supervised, managed, directed and controlled is within this state; or
    6. Specifically in the case of included service described in subdivision (b)(10), service when the individual performing the service is a resident of this state.
  5. Special Rules.  The following rules shall govern for purposes of this section:
    1. Services performed by an individual who provides services as a leased-operator or an owner-operator of a motor vehicle or vehicles under contract to a common carrier conducting an interstate business while engaged in interstate commerce are deemed to be an excluded service for the purposes of this section, regardless of whether the common law relationship of master and servant exists. However, this subdivision (e)(1) does not apply to services performed under subdivision (b)(3) or (b)(4); and
    2. It is the legislative intent that no elected official is eligible for benefits based upon service as an elected official.
  6. Section Definitions.  The following words and terms have the following respective meanings for the purposes of this section, unless the context otherwise requires:
    1. “Agricultural labor” means remunerated service performed after December 31, 1971:
      1. On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with the raising or harvesting of any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife;
      2. In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement or maintenance of the farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of the service is performed on a farm;
      3. In connection with the production or harvesting of any commodity defined as an agricultural commodity in § 15(g) of the Agricultural Marketing Act, codified in 12 U.S.C. § 1141j, or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs or waterways, not owned or operated for profit, and used exclusively for supplying and storing water for farming purposes;
      4. In the employ of either:
        1. The operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity, but only if the operator produced more than one half (½) of the commodity with respect to which the service is performed; or
        2. In the employ of a group of operators of farms, or a cooperative organization of which the operators are members, in the performance of service described in subdivision (f)(1)(D)(i), but only if the operators produced more than one half (½) of the commodity with respect to which the service is performed; provided, that this subdivision (f)(1)(D) shall not be deemed to include service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption; or
      5. On a farm operated for profit if the service is not in the course of the employer's trade or business or is not domestic service in a private home of the employer;
    2. “American aircraft” means an aircraft registered under the laws of the United States;
    3. “American employer” means a person who is:
      1. An individual who is a resident of the United States;
      2. A partnership, if two thirds (2/3) or more of the partners are residents of the United States;
      3. A trust, if all of the trustees are residents of the United States; or
      4. A corporation organized under the laws of the United States or of any state;
    4. “American vessel” means any vessel documented or numbered under the laws of the United States; and includes any vessel that is neither documented nor numbered under the laws of the United States nor documented under the laws of any foreign country, if its crew performs service solely for one (1) or more citizens or residents of the United States or corporations organized under the laws of the United States or of any state;
    5. “Crew leader” means an individual who:
      1. Furnishes individuals to perform service in agricultural labor for any other person;
      2. Pays, either on the individual's own behalf or on behalf of the other person, for the service in agricultural labor performed by them; and
      3. Has not entered into a written agreement with the other person under which the individual is designated as an employee of the other person;
    6. “Hospital” means an institution that has been licensed, certified or approved by the hospital licensing board of the department of health as a hospital; and
    7. “Institution of higher education” means:
      1. Any college or university in this state; or
      2. An educational institution that meets all of the following conditions:
        1. It admits as regular students only individuals having a certificate of graduation from high school, or the recognized equivalent of such a certificate;
        2. It is legally authorized in this state to provide a program of education beyond high school;
        3. It provides an educational program for which it awards a bachelor's or higher degree, or provides a program that is acceptable for full credit toward such a degree, a program of post-graduate or post-doctoral studies, or a program of training to prepare students for gainful employment in a recognized occupation; and
        4. It is a public or other nonprofit institution.
  7. Chapter Definition.  Unless the context otherwise requires, “farm” includes stock, dairy, poultry, fruit, fur-bearing animals, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.

Acts 1947, ch. 29, § 2; 1949, ch. 20, § 1; 1949, ch. 226, § 7; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); Acts 1957, ch. 146, § 1; 1961, ch. 70, § 1; impl. am. Acts 1971, ch. 162, § 3; Acts 1971, ch. 204, § 2; 1973, ch. 130, § 2; 1974, ch. 460, § 1; 1977, ch. 330, §§ 2-9, 32; 1978, ch. 744, §§ 1, 2; T.C.A. (orig. ed.), § 50-1309; Acts 1983, ch. 368, §§ 1, 2; 1984, ch. 701, § 1; 1985, ch. 318, § 11; 1986, ch. 597, § 1; 1987, ch. 148, §§ 2-4; 1989, ch. 333, §§ 1, 2; 1990, ch. 777, § 1; 1992, ch. 694, §§ 1, 2; 1993, ch. 194, §§ 1-7; 1995, ch. 239, § 2; 1997, ch. 104, §§ 1-3; 1999, ch. 76, §§ 1, 2; 2004, ch. 556, § 1; 2004, ch. 946, § 1; 2011, ch. 416, § 1; 2019, ch. 337, §§ 3, 4.

Code Commission Notes.

Although Acts 2004, ch. 946, § 1 provided that the act section be set out as § 50-7-107, the code commission believes the legislature intended to codify the provisions of Acts 2004, ch. 946, § 1 as § 50-7-207(c)(18).

Compiler's Notes. Acts 2011, ch. 416, § 10 provided that §§ 1 and 2 of the act, which enacted § 50-2-111 and amended § 50-7-207(e), shall apply to causes of action arising on or after June 6, 2011.

Acts 2019, ch. 337, § 6 provided that the act, which amended this section, applies only to actions occurring on or after January 1, 2020.

Amendments. The 2019 amendment, effective January 1, 2020, rewrote (b)(2)(B), which read: “Any individual who, under the usual common-law rules applicable in determining the employer/employee relationship, has the status of an employee; and”; in (e), deleted (e)(1), which read: “(1) Service performed by an individual shall be deemed to be included service for purposes of this section regardless of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the administrator that: (A)  The individual has been and will continue to be free from control and direction in connection with the performance of the service, both under any contract for the performance of service and in fact; (B)  The service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (C)  The individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed;”; redesignated former (e)(2) and (e)(3) as present (e)(1) and (e)(2); in (e)(1) substituted “are” for “shall be”, and substituted “. However, this subdivision (e)(1)” for “, and regardless of whether the individual satisfies the requirements for included service as prescribed in subdivision (e)(1); provided, that this subdivision (e)(2)”; and in (e)(2), substituted “is eligible” for “shall be eligible”.

Effective Dates. Acts 2019, ch. 337, § 6. January 1, 2020.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Unemployment Compensation, § 5.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

Attorney General Opinions. The more persuasive interpretation is that Tennessee's unemployment statute should not include officers who receive no compensation when calculating whether a corporation must pay unemployment compensation premiums.  OAG 13-13, 2013 Tenn. AG LEXIS 16 (2/20/13).

NOTES TO DECISIONS

1. Employees.

Workers paid to unload cargo from trucks were not employees of the company operating the warehouse, where workers determined their own working hours and worked for any company they chose on any day of the week, the warehouse operator provided the workers with no tools other than pallet dividers and tape, the workers were hired for one truck load at a time, and the warehouse operator did not control the workers while they unloaded and stacked cargo. Beare Co. v. State, 814 S.W.2d 715, 1991 Tenn. LEXIS 295 (Tenn. 1991).

Pet groomer misclassified certain employees as independent contractors, rendering the groomer liable for unemployment taxes, because the groomer did not establish employees performed services outside the groomer's place of business or that the employees'  services were outside the usual course of the groomer's business, as substantial and material evidence showed the groomer was, at least in large part, a pet grooming business, and that the pet groomers performed the groomers'  services for the groomer at the groomer's place of business. Concord Enters. of Knoxville v. Comm'r of Tenn. Dep't of Labor & Workforce Dev., 524 S.W.3d 233, 2017 Tenn. App. LEXIS 34 (Tenn. Ct. App. Jan. 20, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 345 (Tenn. May 24, 2017).

2. Unemployment Compensation Contributions.

Every employer who receives services performed by an employee in his “employment”, as defined in T.C.A. § 50-7-207(c), is obligated to make contributions to the unemployment compensation fund, unless the services are excluded from coverage under the provisions of T.C.A. § 50-7-207(c). Beare Co. v. State, 814 S.W.2d 715, 1991 Tenn. LEXIS 295 (Tenn. 1991).

3. Exclusions.

Trial court erred in reversing the decision of the Board of Review, which held that an unemployment compensation claimant was not disqualified from receiving unemployment compensation benefits pursuant to T.C.A. § 50-7-207(c), excluding from compensation services performed by a qualified real estate agent if she was a licensed real estate agent. A licensed time-share salesperson is not a licensed real estate agent for purposes of the exclusion. Westgate Resorts v. Neeley, — S.W.3d —, 2012 Tenn. App. LEXIS 540 (Tenn. Ct. App. Aug. 3, 2012), rev'd, Westgate Smoky Mts. v. Phillips, — S.W.3d —, 2013 Tenn. LEXIS 1014 (Tenn. Dec. 23, 2013).

Time-share salesperson was ineligible to receive unemployment compensation benefits because she was a “licensed real estate agent” and her services did not meet the Employment Security Law's definition of employment. Westgate Smoky Mts. v. Phillips, — S.W.3d —, 2013 Tenn. LEXIS 1014 (Tenn. Dec. 23, 2013).

Collateral References.

“Agricultural labor” or “farm labor,” what constitutes within social security acts. 60 A.L.R.5th 459.

Insurance agents or salesmen as within coverage of social security or unemployment compensation acts. 39 A.L.R.3d 872.

Liability of political party or its subdivision for contributions under unemployment compensation acts. 43 A.L.R.3d 1351.

Outside pieceworkers as within Unemployment Compensation Act. 1 A.L.R.2d 555.

Part-time workers as covered by unemployment compensation act. 95 A.L.R.3d 891.

Unemployment compensation benefits where, during the base year, employee worked in different states for same employer. 9 A.L.R.2d 646.

What constitutes “agricultural” or “farm” labor within Social Security or Unemployment Compensation Acts. 60 A.L.R.5th 459.

50-7-208. “Employment office” defined.

“Employment office” means a free public employment office, or branch of a free public employment office, operated by the United States or by any state of the United States or by a state, province or similar political subdivision of a foreign government.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); T.C.A. (orig. ed.), § 50-1310.

50-7-209. “Fund” defined.

“Fund” means the unemployment compensation fund established by this chapter, to which all premiums required, and from which all benefits provided under this chapter, shall be paid.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); T.C.A. (orig. ed.), § 50-1311; Acts 1985, ch. 318, § 12.

50-7-210. “State” and “United States” defined.

For the purposes of this chapter:

  1. “State” includes the states of the United States, the District of Columbia, the Commonwealth of Puerto Rico and the Virgin Islands; and
  2. “United States,” when used in a geographical sense, includes the states, the District of Columbia, the Commonwealth of Puerto Rico and the Virgin Islands.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); Acts 1961, ch. 70, § 2; 1977, ch. 330, § 10; T.C.A. (orig. ed.), § 50-1312; Acts 1993, ch. 194, § 8.

50-7-211. “Unemployed” defined.

  1. An individual shall be deemed “unemployed” in any week during which the individual performs no services and with respect to which no wages are payable to the individual, or in any week of less than full-time work if the wages payable to the individual with respect to the week are less than the individual's weekly benefit amount.
  2. The commissioner shall prescribe rules and regulations applicable to unemployed individuals, making distinctions in the procedures as to total unemployment, part total unemployment, partial unemployment of individuals attached to their regular jobs, and other forms of short-time work that the commissioner deems necessary.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); T.C.A. (orig. ed.), § 50-1313.

NOTES TO DECISIONS

1. Determination of Date.

Employees who were permanently discharged when company closed its plant were unemployed as of the date of severance even though they received severance pay equal to weekly wages for varying lengths of time based on period of service, inasmuch as they received no wages or performed no services within the meaning of the statute. Balding v. Tennessee Dep't of Employment Sec., 212 Tenn. 517, 370 S.W.2d 546, 1963 Tenn. LEXIS 445 (1963).

It was error not to dismiss workers'  complaint alleging an employer's Worker Adjustment and Retraining Notification (WARN) Act violation because (1) the workers'  class was too small to be a WARN Act “mass layoff,” and (2) it was error to aggregate the workers with another group of laid off employees as that group was laid off over 90 days after the workers, since that group suffered no employment loss when notified of layoffs, despite being told not to report to work, as the group was paid full wages and benefits for 60 days after the notice and was ineligible for unemployment benefits, until the group no longer received wages and benefits, so the group's employment relationship did not permanently cease at the time of notice, and the group was not paid in lieu of notice, since the group was paid in addition to notice. Morton v. Vanderbilt Univ., 809 F.3d 294, 2016 U.S. App. LEXIS 29, 2016 FED App. 2P (6th Cir. Jan. 5, 2016).

2. Wages.

Back pay awarded employees by arbitrator for time during which they were discharged for union activity constituted wages under the unemployment compensation act, and consequently, benefits that had been paid employees were overpayments. Griggs v. Sands, 526 S.W.2d 441, 1975 Tenn. LEXIS 595 (Tenn. 1975).

50-7-212. “Unemployment compensation administration fund” defined.

“Unemployment compensation administration fund” means the unemployment compensation administration fund established by this chapter, from which regular administrative expenses under this chapter shall be paid.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); T.C.A. (orig. ed.), § 50-1314.

50-7-213. “Wages” defined.

  1. “Wages” means all remuneration paid for personal services from whatever source, including commissions, bonuses, tips that are both paid to an employee while performing services that constitute employment and included in a written statement furnished by the employee to the employer pursuant to § 6053(a) of the Internal Revenue Code of 1954, compiled in 26 U.S.C. § 6053(a), tips allocated by the employer pursuant to § 6053(c)(3) of the Internal Revenue Code of 1954, compiled in 26 U.S.C. § 6053(c)(3), employee salary reduction contributions to cash or deferred plans pursuant to §§ 401(k), 403(b), 457, compiled in 26 U.S.C. §§ 401(k), 403(b) and 457, respectively, or any similar plan contained in the Internal Revenue Code, employee salary reduction contributions to cafeteria plans pursuant to § 125 of the Internal Revenue Code, compiled in 26 U.S.C. § 125, and the cash value of all remuneration in any medium other than cash. The reasonable cash value of any remuneration in any medium other than cash shall be determined in accordance with rules prescribed by the commissioner; provided, that “wages” does not include that part of the remuneration that, after remuneration equal to the taxable wage base, as defined in subsection (e), with respect to employment has been paid to an individual by an employer during any calendar year, is paid to the individual by the employer during the calendar year. The remuneration paid to the individual by the employer during the calendar year in excess of the taxable wage base, as defined in subsection (e), shall be deemed “wages” solely for the purpose of determining the benefit rights under this chapter of the individual.
  2. Notwithstanding any other provision of this chapter, “wages” shall always include remuneration paid for services if the employing unit for which the services are performed is liable for any federal tax on the remuneration against which credit may be taken for premiums paid under this chapter. The remuneration paid to an individual by an employer with respect to employment in another state or states, upon which premiums were required of and paid by the employer under an unemployment compensation law of the other state or states, shall be included as a part of remuneration equal to the taxable wage base, referred to in this section, as defined in subsection (e).
  3. With respect to weeks of unemployment beginning on or after January 1, 1978, wages for insured work shall include wages paid for previously uncovered services. For the purposes of this subsection (c), “previously uncovered services” means services:
    1. That were not employment as defined in § 50-7-207(b)(1), and were not services covered pursuant to § 50-7-405(d) at any time during the one-year period ending December 31, 1975; and
    2. That are:
      1. Agricultural labor as defined in § 50-7-207(f)(1) or domestic service as defined in § 50-7-207(b)(8); or
      2. Services performed by an employee of this state or a political subdivision of the state, as provided in § 50-7-207(b)(3), or by an employee of a nonprofit educational institution that is not an institution of higher education, as provided in § 50-7-207(c)(5)(D), except to the extent that assistance under Title II of the Emergency Jobs and Unemployment Assistance Act of 1974, contained in 26 U.S.C. § 3304 note, was paid on the basis of the services.
  4. “Wages” does not include:
    1. The amount of any payment with respect to services performed on behalf of an individual in its employ under a plan or system established by an employing unit that makes provision for individuals in its employ generally or for a class or classes of the individuals, including any amount paid by an employing unit for insurance or annuities, or into a fund to provide for any such payment on account of:
      1. Retirement;
      2. Sickness or accident disability made to an employee or any of the employee's dependents that is awarded under a workers' compensation law. Any third party that makes the payment on account of sickness or accident disability to an employee or any of the employee's dependents that is awarded under a workers' compensation law shall be treated, for purposes of this chapter, as the employer with respect to the wages, except as otherwise provided in regulations prescribed by the commissioner;
      3. Medical and hospitalization expenses in connection with sickness or accident disability; or
      4. Death, provided the individual in its employ does not have:
        1. The option to receive, instead of provision for the death benefit, any part of the payment, if the death benefit is insured, any part of the premium, or contributions of premium, paid by the individual's employing unit; and
        2. The right under the provisions of the plan or system or policy of insurance providing for the death benefit to assign the benefit, or to receive a cash consideration in lieu of the benefit either upon the individual's withdrawal from the plan or system providing for the benefit or upon termination of the plan or system or policy of insurance or of the individual's services with the employing unit;
    2. The payment of an employer, without deduction from the remuneration of the individual in its employ, of the tax imposed upon an individual in its employ under 26 U.S.C. §§ 3101 and 3102; or
    3. Any payment on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability, made by an employer to, or on behalf of, an employee after the expiration of six (6) calendar months following the last calendar month in which the employee worked for the employer.
  5. For purposes of this chapter, “taxable wage base” means:
    1. The first seven thousand dollars ($7,000) paid to each individual employee during any period with respect to the calendar years beginning January 1, 1983, and ending December 31, 2008, and at any time after December 31, 2008, that the unemployment trust fund balance is greater than one billion dollars ($1,000,000,000), as determined in accordance with § 50-7-403(j);
    2. The first eight thousand dollars ($8,000) paid to each individual employee during any period after December 31, 2008, when the unemployment trust fund balance is greater than nine hundred million dollars ($900,000,000) but lower than or equal to one billion dollars ($1,000,000,000), as determined in accordance with § 50-7-403(j); and
    3. The first nine thousand dollars ($9,000) paid to each individual employee during the period after December 31, 2008, and at any time after December 31, 2008, that the unemployment trust fund balance is lower than or equal to nine hundred million dollars ($900,000,000), as determined in accordance with § 50-7-403(j).
  6. [Deleted by 2018 amendment.]

Acts 1947, ch. 29, § 2; 1949, ch. 226, § 8; 1949, ch. 249, § 1; C. Supp. 1950; § 6901.2 (Williams, § 6901.26); Acts 1953, ch. 244, § 1; 1955, ch. 115, § 2; 1957, ch. 146, § 2; 1959, ch. 160, § 1; 1963, ch. 176, § 1; 1967, ch. 208, § 1; 1970, ch. 397, § 1; 1971, ch. 204, § 3; 1977, ch. 330, §§ 11, 12; 1980, ch. 641, § 1; T.C.A. (orig. ed.), § 50-1315; Acts 1983, ch. 368, § 3; 1985, ch. 318, §§ 13-16; 1985, ch. 323, §§ 1-4; 1992, ch. 694, §§ 3, 4; 2001, ch. 82, § 1; 2009, ch. 550, §§ 1-3; 2016, ch. 751, § 1; 2018, ch. 642, § 2.

Amendments. The 2016 amendment added (f).

The 2018 amendment deleted former (f) which read: “(f)(1)  The taxable wage base shall be adjusted in accordance with subsection (e), and, if the balance is below the trigger level at the subsequent reading of the unemployment trust fund balance, the taxable wage base shall not change.“(2)  The adjustment of the taxable wage base, if any, based on findings made and published on June 30 in accordance with § 50-7-403(j) shall be effective on January 1 of the following year.“(3)  The adjustment of the taxable wage base, if any, based on findings made and published on December 31 in accordance with § 50-7-403(j) shall be effective on July 1 of the following year.”

Effective Dates. Acts 2016, ch. 751, § 6. July 1, 2016.

Acts 2018, ch. 642,  § 5. July 1, 2018.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Unemployment Compensation, § 3.

Law Reviews.

Labor Law (Paul H. Sanders), 6 Vand. L. Rev. 1193 (1953).

NOTES TO DECISIONS

1. Severance Pay.

Severance pay equal to weekly wages for varying lengths of time depending upon length of service that was paid to employees who were permanently discharged when company closed its plant was not remuneration paid for personal services and did not constitute wages. Balding v. Tennessee Dep't of Employment Sec., 212 Tenn. 517, 370 S.W.2d 546, 1963 Tenn. LEXIS 445 (1963).

2. Back Pay.

Back pay awarded employees by arbitrator for time during which they were discharged for union activity constituted wages under the unemployment compensation act, and consequently, benefits that had been paid employees were overpayments. Griggs v. Sands, 526 S.W.2d 441, 1975 Tenn. LEXIS 595 (Tenn. 1975).

Collateral References.

Right to unemployment compensation of one who quit because of pay reduction. 95 A.L.R.3d 449.

50-7-214. “Week” defined.

  1. “Week” means the period of seven (7) consecutive days that the commissioner prescribes by regulation.
  2. The commissioner may by regulation prescribe that a week shall be deemed to be “in,” “within” or “during” that benefit year that includes the greater part of the week.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); T.C.A. (orig. ed.), § 50-1316.

50-7-215. “Calendar quarter” defined.

“Calendar quarter” means the period of three (3) consecutive calendar months ending on March 31, June 30, September 30 or December 31.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); T.C.A. (orig. ed.), § 50-1317.

50-7-216. “Weekly benefit amount” defined.

An individual's “weekly benefit amount” means the amount of benefits the individual would be entitled to receive for one (1) week of total unemployment.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); T.C.A. (orig. ed.), § 50-1318.

50-7-217. “Benefit year” defined.

  1. “Benefit year” with respect to any individual means the fifty-two (52) consecutive week period beginning with the first day of the first week with respect to which the individual first files a valid claim for benefits, and thereafter the fifty-two (52) consecutive week period beginning with the first day of the first week with respect to which the individual next files a valid claim for benefits after the termination of the individual's last preceding benefit year.
  2. The last preceding benefit year shall be a fifty-three (53) week period if fifty-two (52) weeks would result in the overlap of any calendar quarter of the base period of the new benefit year with the same calendar quarter of the base period of the previous benefit year.
  3. Any claim for benefits made in accordance with § 50-7-304(a) shall be deemed to be a “valid claim” for the purposes of subsection (a) if the individual has been paid the wages for insured work required under § 50-7-302(b)(1).

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); Acts 1975, ch. 190, § 1; T.C.A. (orig. ed.), § 50-1319; Acts 1987, ch. 148, § 5.

50-7-218. “Base period” defined.

“Base period” means the first four (4) of the last five (5) completed calendar quarters immediately preceding the first day of an individual's benefit year; provided, that if the first quarter of the last five (5) completed calendar quarters was included in the base period applicable to any individual's previous benefit year, the individual's base period shall be the last four (4) completed calendar quarters. For the purposes of establishing a base period in cases involving persons receiving workers' compensation benefits for temporary total disability, the department shall exclude periods of such disability from the base period and determine the base period from the last four (4) completed quarters of work before any such disability.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); Acts 1955, ch. 115, § 3; T.C.A. (orig. ed.), § 50-1320; Acts 2009, ch. 550, § 4; 2011, ch. 376, § 1; 2013, ch. 427, § 1.

Compiler's Notes. Acts 2013, ch. 427, § 8 provided that notwithstanding any other provision of law to the contrary, any provision of the act shall not apply to the extent that compliance with such provision would violate federal law or cause a loss of federal funding.

Collateral References.

Eligibility for unemployment compensation of employee who retires voluntarily. 75 A.L.R.5th 339.

Unemployment compensation: leaving employment in pursuit of education or to attend training as affecting right to unemployment compensation. 47 A.L.R.5th 775.

Unemployment compensation: leaving employment in pursuit of other employment as affecting right to unemployment compensation. 46 A.L.R.5th 659.

Unemployment compensation: leaving employment to become self-employed or to go into business for oneself as affecting right to unemployment compensation. 45 A.L.R.5th 715.

50-7-219. “Insured work” defined.

“Insured work” means employment covered by this chapter.

Acts 1947, ch. 29, § 2; C. Supp. 1950, § 6901.2 (Williams, § 6901.26); T.C.A. (orig. ed.), § 50-1321.

Part 3
Benefits

50-7-301. Benefit formula.

  1. Payments of Benefits.  Benefits shall be payable from the fund in the manner provided by this section. All benefits shall be paid through employment offices in accordance with regulations  the commissioner prescribes. Notwithstanding any other provision of this chapter to the contrary, any amount of unemployment compensation payable to any claimant for any weeks if not an even dollar amount, shall be rounded to the next lower full dollar amount.
  2. Weekly Benefit Amount.  An individual's weekly benefit amount shall be the amount appearing in column B in the Benefit Table corresponding to the line on which in column A of the Benefit Table there appears the average total wages for insured work paid to the individual in the two (2) calendar quarters in the individual's base period in which the total wages are highest. “Total wages for insured work,” as used in this section, is deemed to mean all remuneration paid to an employee in the base period by employers subject to this chapter.

    BENEFIT TABLE

    (Effective for benefit years established on and after July 5, 1992)

    COLUMN A     COLUMN B

    Average Wages Paid in Highest Weekly Benefit

    Two Quarters of Base Period  Amount

    $ 780.01  through  $ 806.00 $30.00

    806.01  through   832.00  31.00

    832.01  through   858.00  32.00

    858.01  through   884.00  33.00

    884.01  through   910.00  34.00

    910.01  through   936.00  35.00

    936.01  through   962.00  36.00

    962.01  through   988.00  37.00

    988.01  through  1,014.00  38.00

    1,014.01  through  1,040.00  39.00

    1,040.01  through  1,066.00  40.00

    1,066.01  through  1,092.00  41.00

    1,092.01  through  1,118.00  42.00

    1,118.01  through  1,144.00  43.00

    1,144.01  through  1,170.00  44.00

    1,170.01  through  1,196.00  45.00

    1,196.01  through  1,222.00  46.00

    1,222.01  through  1,248.00  47.00

    1,248.01  through  1,274.00  48.00

    1,274.01  through  1,300.00  49.00

    1,300.01  through  1,326.00  50.00

    1,326.01  through  1,352.00  51.00

    1,352.01  through  1,378.00  52.00

    1,378.01  through  1,404.00  53.00

    1,404.01  through  1,430.00  54.00

    1,430.01  through  1,456.00  55.00

    1,456.01  through  1,482.00  56.00

    1,482.01  through  1,508.00  57.00

    1,508.01  through  1,534.00  58.00

    1,534.01  through  1,560.00  59.00

    1,560.01  through  1,586.00  60.00

    1,586.01  through  1,612.00  61.00

    1,612.01  through  1,638.00  62.00

    1,638.01  through  1,664.00  63.00

    1,664.01  through  1,690.00  64.00

    1,690.01  through  1,716.00  65.00

    1,716.01  through  1,742.00  66.00

    1,742.01  through  1,768.00  67.00

    1,768.01  through  1,794.00  68.00

    1,794.01  through  1,820.00  69.00

    1,820.01  through  1,846.00  70.00

    1,846.01  through  1,872.00  71.00

    1,872.01  through  1,898.00  72.00

    1,898.01  through  1,924.00  73.00

    1,924.01  through  1,950.00  74.00

    1,950.01  through  1,976.00  75.00

    1,976.01  through  2,002.00  76.00

    2,002.01  through  2,028.00  77.00

    2,028.01  through  2,054.00  78.00

    2,054.01  through  2,080.00  79.00

    2,080.01  through  2,106.00  80.00

    2,106.01  through  2,132.00  81.00

    2,132.01  through  2,158.00  82.00

    2,158.01  through  2,184.00  83.00

    2,184.01  through  2,210.00  84.00

    2,210.01  through  2,236.00  85.00

    2,236.01  through  2,262.00  86.00

    2,262.01  through  2,288.00  87.00

    2,288.01  through  2,314.00  88.00

    2,314.01  through  2,340.00  89.00

    2,340.01  through  2,366.00  90.00

    2,366.01  through  2,392.00  91.00

    2,392.01  through  2,418.00  92.00

    2,418.01  through  2,444.00  93.00

    2,444.01  through  2,470.00  94.00

    2,470.01  through  2,496.00  95.00

    2,496.01  through  2,522.00  96.00

    2,522.01  through  2,548.00  97.00

    2,548.01  through  2,574.00  98.00

    2,574.01  through  2,600.00  99.00

    2,600.01  through  2,626.00 100.00

    2,626.01  through  2,652.00 101.00

    2,652.01  through  2,678.00 102.00

    2,678.01  through  2,704.00 103.00

    2,704.01  through  2,730.00 104.00

    2,730.01  through  2,756.00 105.00

    2,756.01  through  2,782.00 106.00

    2,782.01  through  2,808.00 107.00

    2,808.01  through  2,834.00 108.00

    2,834.01  through  2,860.00 109.00

    2,860.01  through  2,886.00 110.00

    2,886.01  through  2,912.00 111.00

    2,912.01  through  2,938.00 112.00

    2,938.01  through  2,964.00 113.00

    2,964.01  through  2,990.00 114.00

    2,990.01  through  3,016.00 115.00

    3,016.01  through  3,042.00 116.00

    3,042.01  through  3,068.00 117.00

    3,068.01  through  3,094.00 118.00

    3,094.01  through  3,120.00 119.00

    3,120.01  through  3,146.00 120.00

    3,146.01  through  3,172.00 121.00

    3,172.01  through  3,198.00 122.00

    3,198.01  through  3,224.00 123.00

    3,224.01  through  3,250.00 124.00

    3,250.01  through  3,276.00 125.00

    3,276.01  through  3,302.00 126.00

    3,302.01  through  3,328.00 127.00

    3,328.01  through  3,354.00 128.00

    3,354.01  through  3,380.00 129.00

    3,380.01  through  3,406.00 130.00

    3,406.01  through  3,432.00 131.00

    3,432.01  through  3,458.00 132.00

    3,458.01  through  3,484.00 133.00

    3,484.01  through  3,510.00 134.00

    3,510.01  through  3,536.00 135.00

    3,536.01  through  3,562.00 136.00

    3,562.01  through  3,588.00 137.00

    3,588.01  through  3,614.00 138.00

    3,614.01  through  3,640.00 139.00

    3,640.01  through  3,666.00 140.00

    3,666.01  through  3,692.00 141.00

    3,692.01  through  3,718.00 142.00

    3,718.01  through  3,744.00 143.00

    3,744.01  through  3,770.00 144.00

    3,770.01  through  3,796.00 145.00

    3,796.01  through  3,822.00 146.00

    3,822.01  through  3,848.00 147.00

    3,848.01  through  3,874.00 148.00

    3,874.01  through  3,900.00 149.00

    3,900.01  through  3,926.00 150.00

    3,926.01  through  3,952.00 151.00

    3,952.01  through  3,978.00 152.00

    3,978.01  through  4,004.00 153.00

    4,004.01  through  4,030.00 154.00

    4,030.01  through  4,056.00 155.00

    4,056.01  through  4,082.00 156.00

    4,082.01  through  4,108.00 157.00

    4,108.01  through  4,134.00 158.00

    4,134.01  through  4,160.00 159.00

    4,160.01  through  4,186.00 160.00

    4,186.01  through  4,212.00 161.00

    4,212.01  through  4,238.00 162.00

    4,238.01  through  4,264.00 163.00

    4,264.01  through  4,290.00 164.00

    4,290.01  through  4,316.00 165.00

    4,316.01  through  4,342.00 166.00

    4,342.01  through  4,368.00 167.00

    4,368.01  through  4,394.00 168.00

    4,394.01  through  4,420.00 169.00

    (Effective for Benefit Years Established on or after July 4, 1993)

    COLUMN A     COLUMN B

    Average Wages Paid in Highest Weekly Benefit

    Two Quarters of Base Period  Amount

    $ 4,420.01 through $ 4,446.00 $170.00

    4,446.01  through  4,472.00  171.00

    4,472.01  through  4,498.00  172.00

    4,498.01  through  4,524.00  173.00

    4,524.01  through  4,550.00  174.00

    4,550.01  through  4,576.00  175.00

    4,576.00  through  4,602.00  176.00

    4,602.01  through  4,628.00  177.00

    4,628.01  through  4,654.00  178.00

    4,654.01  through  4,680.00  179.00

    4,680.01  through  4,706.00  180.00

    4,706.01  through  4,732.00  181.00

    4,732.01  through  4,758.00  182.00

    4,758.01  through  4,784.00  183.00

    4,784.01  through  4,810.00  184.00

    4,810.01  through  4,836.00  185.00

    (Effective for Benefit Years Established on or after July 3, 1994)

    COLUMN A     COLUMN B

    Average Wages Paid in Highest Weekly Benefit

    Two Quarters of Base Period  Amount

    $ 4,836.01  through $ 4,862.00 $186.00

    4,862.01  through  4,888.00  187.00

    4,888.01  through  4,914.00  188.00

    4,914.01  through  4,940.00  189.00

    4,940.01  through  4,966.00  190.00

    4,966.01  through  4,992.00  191.00

    4,992.01  through  5,018.00  192.00

    5,018.01  through  5,044.00  193.00

    5,044.01  through  5,070.00  194.00

    5,070.01  through  5,096.00  195.00

    5,096.01  through  5,122.00  196.00

    5,122.01  through  5,148.00  197.00

    5,148.01  through  5,174.00  198.00

    5,174.01  through  5,200.00  199.00

    (Effective for Benefit Years Established on or after July 7, 1996)

    COLUMN A     COLUMN B

    Average Wages Paid in Highest Weekly Benefit

    Two Quarters of Base Period  Amount

    $ 5,200.01 through $ 5,226.00 $200.00

    5,226.01  through  5,252.00  201.00

    5,252.01  through  5,278.00  202.00

    5,278.01  through  5,304.00  203.00

    5,304.01  through  5,330.00  204.00

    5,330.01  through  5,356.00  205.00

    5,356.01  through  5,382.00  206.00

    5,382.01  through  5,408.00  207.00

    5,408.01  through  5,434.00  208.00

    5,434.01  through  5,460.00  209.00

    5,460.01  through  5,486.00  210.00

    5,486.01  through  5,512.00  211.00

    5,512.01  through  5,538.00  212.00

    5,538.01  through  5,564.00  213.00

    5,564.01  through  5,590.00  214.00

    5,590.01  through  5,616.00  215.00

    5,616.01  through  5,642.00  216.00

    5,642.01  through  5,668.00  217.00

    5,668.01  through  5,694.00  218.00

    5,694.01  through  5,720.00  219.00

    5,720.01  through  5,746.00  220.00

    (Effective for Benefit Years Established on or after July 6, 1997)

    COLUMN A     COLUMN B

    Average Wages Paid in Highest Weekly Benefit

    Two Quarters of Base Period  Amount

    $ 5,746.01 through $ 5,772.00 $221.00

    5,772.01  through  5,798.00  222.00

    5,798.01  through  5,824.00  223.00

    5,824.01  through  5,850.00  224.00

    5,850.01  through  5,876.00  225.00

    5,876.01  through  5,902.00  226.00

    5,902.01  through  5,928.00  227.00

    5,928.01  through  5,954.00  228.00

    5,954.01  through  5,980.00  229.00

    5,980.01  through  6,006.00  230.00

    6,006.01  through  6,032.00  231.00

    6,032.01  through  6,058.00  232.00

    6,058.01  through  6,084.00  233.00

    6,084.01  through  6,110.00  234.00

    6,110.01  through  6,136.00  235.00

    6,136.01  through  6,162.00  236.00

    6,162.01  through  6,188.00  237.00

    6,188.01  through  6,214.00  238.00

    6,214.01  through  6,240.00  239.00

    6,240.01  through  6,266.00  240.00

    (Effective for Benefit Years Established on or after July 5, 1998)

    COLUMN A     COLUMN B

    Average Wages Paid in Highest Weekly Benefit

    Two Quarters of Base Period  Amount

    $ 6,266.01 through $ 6,292.00 $241.00

    6,292.01  through  6,318.00  242.00

    6,318.01  through  6,344.00  243.00

    6,344.01  through  6,370.00  244.00

    6,370.01  through  6,396.00  245.00

    6,396.01  through  6,422.00  246.00

    6,422.01  through  6,448.00  247.00

    6,448.01  through  6,474.00  248.00

    6,474.01  through  6,500.00  249.00

    6,500.01  through  6,526.00  250.00

    6,526.01  through  6,552.00  251.00

    6,552.01  through  6,578.00  252.00

    6,578.01  through  6,604.00  253.00

    6,604.01  through  6,630.00  254.00

    6,630.01  through  6,656.00  255.00

    (Effective for Benefit Years Established on or after August 5, 2001)

    COLUMN A     COLUMN B

    Average Wages Paid in Highest Weekly Benefit

    Two Quarters of Base Period  Amount

    $ 6,656.01 through $ 6,682.00 $256.00

    6,682.01  through  6,708.00  257.00

    6,708.01  through  6,734.00  258.00

    6,734.01  through  6,760.00  259.00

    6,760.01  through  6,786.00  260.00

    6,786.01  through  6,812.00  261.00

    6,812.01  through  6,838.00  262.00

    6,838.01  through  6,864.00  263.00

    6,864.01  through  6,890.00  264.00

    6,890.01  through  6,916.00  265.00

    6,916.01  through  6,942.00  266.00

    6,942.01  through  6,968.00  267.00

    6,968.01  through  6,994.00  268.00

    6,994.01  through  7,020.00  269.00

    7,020.01  through  7,046.00  270.00

    7,046.01  through  7,072.00  271.00

    7,072.01  through  7,098.00  272.00

    7,098.01  through  7,124.00  273.00

    7,124.01  through  7,150.00  274.00

    7,150.01  and over      275.00

  3. Weekly Benefit for Unemployment.
    1. Effective for weeks beginning July 6, 1997, and after, each eligible claimant who is unemployed in any week shall be paid with respect to the week a benefit in an amount equal to the claimant's weekly benefit amount, less that part of the wages, if any, payable to the claimant with respect to the week that is in excess of the greater of fifty dollars ($50.00) or twenty-five percent (25%) of the claimant's weekly benefit amount.
    2. However, no otherwise eligible claimant shall be denied benefits for any week that the claimant has received remuneration for services performed in the Tennessee national guard.
    3. The benefit, if not a multiple of one dollar ($1.00), shall be computed to the next lower multiple of one dollar ($1.00).
    4. Voluntary Withholding of Income Tax from Benefits.
      1. An individual filing a new claim for benefits shall, at the time of filing the claim, be advised that:
        1. Benefits are subject to federal, state and local income tax;
        2. Requirements exist pertaining to estimated tax payments;
        3. The individual may elect to have federal income tax deducted and withheld from the individual's payment of benefits at the amount specified in the Internal Revenue Code, compiled in 26 U.S.C.; and
        4. The individual shall be permitted to change a previously elected withholding status.
      2. Amounts deducted and withheld from benefits shall remain in the unemployment fund until transferred to the federal taxing authority as payment of income tax.
      3. The administrator shall follow all procedures specified by the United States department of labor and the internal revenue service pertaining to the deducting and withholding of income tax.
      4. Amounts shall be deducted and withheld under this section only after amounts are deducted and withheld for any overpayments of benefits, child support obligations, food stamp over-issuances or any other amounts required to be deducted and withheld under this chapter.
    5. If requested in writing by a claimant, the weekly benefit amount payable to the claimant shall be paid by direct deposit in an account at a financial institution selected by the claimant. With the written request, the claimant shall submit a void check which includes the bank routing numbers and the bank account number of the account selected by the claimant.
    6. If the benefits are paid by check:
      1. The full nine-digit social security number of the claimant shall be omitted from the check and the check stub or other document included in the envelope which contains the check; however, the redacted last four (4) digits of the social security number shall be permitted; and
      2. If the claimant files a written report that the check was not received by the claimant or if the check has been stolen and the claimant was not negligent or responsible for the check being stolen, the administrator shall reissue such check to the claimant within ninety (90) days of the date of the original check.
  4. Maximum Benefits.
    1. Beginning with those benefit years established on July 4, 1983, any otherwise eligible claimant shall be entitled during any benefit year to a total amount of benefits equal to whichever is the lesser of:
      1. Twenty-six (26) times the claimant's weekly benefit amount; or
      2. One fourth (¼) of the claimant's wages for insured work paid during the claimant's base period.
    2. The total amount of benefits, if not a multiple of one dollar ($1.00), shall be computed at the next lower multiple of one dollar ($1.00).
    3. No claimant will be entitled to benefits if the claimant's base period earnings are less than forty (40) times the claimant's weekly benefit amount.
    4. No claimant will be entitled to benefits if the claimant's base period earnings, outside the claimant's highest calendar quarter of earnings, are less than the lesser of six (6) times the claimant's weekly benefit amount or nine hundred dollars ($900).

Acts 1947, ch. 29, § 3; 1949, ch. 226, § 1; C. Supp. 1950, § 6901.3 (Williams, § 6901.27); Acts 1951, ch. 139, § 2; 1953, ch. 244, § 2; 1955, ch. 115, § 4; 1957, ch. 146, § 3; 1959, ch. 202, § 1; 1963, ch. 176, § 2; 1965, ch. 183, § 1; 1967, ch. 208, § 2; 1969, ch. 32, § 1; 1970, ch. 397, § 2; 1971, ch. 132, § 1; 1972, ch. 556, § 1; 1973, ch. 130, § 3; 1974, ch. 460, §§ 2, 3; 1975, ch. 190, §§ 2-4; 1981, ch. 249, § 2; 1982, ch. 820, § 1; T.C.A. (orig. ed.), § 50-1322; Acts 1983, ch. 368, §§ 4-6; 1983, ch. 439, §§ 1, 2; 1984, ch. 992, § 1; 1985, ch. 318, §§ 17-19; 1985, ch. 363, §§ 1-3; 1986, ch. 645, § 1; 1987, ch. 221, § 1; 1987, ch. 345, § 1; 1988, ch. 842, § 1; 1989, ch. 388, §§ 1-4; 1993, ch. 194, §§ 9-11; 1993, ch. 305, § 1; 1996, ch. 804, § 1; 1996, ch. 877, § 1; 1997, ch. 95, § 1; 1997, ch. 142, § 1; 2001, ch. 441, § 1; 2009, ch. 550, § 5; 2010, ch. 1017, § 1; 2013, ch. 427, § 2.

Compiler's Notes. Acts 2013, ch. 427, § 8 provided that notwithstanding any other provision of law to the contrary, any provision of the act shall not apply to the extent that compliance with such provision would violate federal law or cause a loss of federal funding.

Cross-References. Child support deduction, § 50-7-611.

Definitions, title 50, ch. 7, part 2.

NOTES TO DECISIONS

1. Eligibility.

Pursuant to T.C.A. § 50-7-301, the worker was not eligible for unemployment benefits because he did not have wages in the base period of the claim; the worker had to have a minimum of seven hundred eighty dollars and one cent in the average wages paid in the highest two quarters of the base period to qualify and it was undisputed that he earned three hundred fifty-nine dollars and thirty-nine cents during this period. Millen v. Tenn. DOL & Workforce Dev., 205 S.W.3d 929, 2006 Tenn. App. LEXIS 239 (Tenn. Ct. App. 2006), appeal denied, Millen v. Tenn. Dep't of Labor & Workforce Dev., — S.W.3d —, 2006 Tenn. LEXIS 801 (Tenn. Aug. 28, 2006), cert. denied, 549 U.S. 1035, 127 S. Ct. 588, 166 L. Ed. 2d 437, 2006 U.S. LEXIS 8686 (2006).

Collateral References.

Severance payments as affecting right to unemployment compensation. 93 A.L.R.2d 1319.

Law Reviews.

A Primer on Unemployment Insurance Law for the General Practitioner (D. Bruce Shine, Sam Watridge, Donald F. Mason, Jr.), 23 No. 2 Tenn. B.J. 11 (1987).

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

50-7-302. Benefit eligibility conditions.

  1. Personal Eligibility Conditions.  An unemployed claimant shall be eligible to receive benefits with respect to any week only if the administrator finds that all of the following conditions are met:
    1. The claimant has made a claim for benefits with respect to the week in accordance with rules or regulations the commissioner prescribes;
    2. The claimant has furnished to the division of employment security the claimant's social security account number, or numbers, if the claimant has more than one (1) social security account number;
    3. The claimant has registered for work, and thereafter continued to report, at an employment office as prescribed by the administrator, except that the administrator may waive or alter either or both of the requirements of this subdivision (a)(3) as to individuals attached to regular jobs and as to such other types of cases or situations with respect to which the administrator finds that compliance with the requirements would be oppressive, or would be inconsistent with the purposes of this chapter; provided, that no prescription, waiver or alteration shall conflict with § 50-7-301(a);
    4. The claimant is able to work, available for work, and making a reasonable effort to secure work. “Making a reasonable effort to secure work” means the claimant shall provide detailed information regarding contact with at least three (3) employers per week or shall access services at a career center created by the department. The administrator shall verify whether claimants are complying with the requirement of contacting at least three (3) employers per week or accessing services at a career center. The administrator shall disqualify any claimant receiving benefits who the administrator finds has provided false work search information. In determining whether the claimant is making a reasonable effort to secure work, the administrator shall consider the customary methods of obtaining work in the claimant's usual occupation or occupation for which the claimant is reasonably qualified, the current condition of the labor market, and any attachment the claimant may have to a regular job;
      1. No claimant shall be considered ineligible in any week of unemployment for failure to comply with this subsection (a) if the failure is due to an illness or disability that occurred after the claimant has registered for work, and no work that would have been considered suitable at the time of the claimant's initial registration has been offered after the beginning of the illness or disability. The administrator may, however, in the administrator's discretion, require the claimant to obtain and submit a certificate by a duly licensed physician as to the illness or disability with respect to each week that the illness or disability exists;
      2. No otherwise eligible claimant shall be denied benefits for any week because the claimant is in training with the approval of the administrator, nor shall the claimant be denied benefits with respect to any week in which the claimant is in training with the approval of the administrator by reason of the application of this subsection (a) relating to availability for work, or of § 50-7-303(a)(3) relating to failure to apply for, or refusal to accept, suitable work;
      3. The unemployment of a claimant for any week or any portion of a week, caused by a plant, departmental or other type of shutdown for vacation purposes shall not be the basis for a denial of benefits for the week, or portion of a week, if the claimant has not or will not receive any vacation pay from the claimant's employer for the period, when so found by the administrator;
      4. No otherwise eligible claimant shall be denied benefits by reason of the application of this subsection (a) who subsequent to the claimant's enrollment in and while attending a regularly established school, college or university, has been regularly employed and becomes unemployed and makes the claimant available for all suitable work, as determined by the administrator, to the same extent that the claimant was previously employed while continuing to attend and be enrolled in the regularly established school, college or university, but if the claimant is offered the same job that the claimant previously held immediately prior to entering the school and refuses the job, then the claimant shall become ineligible for the benefits provided by this chapter if the job meets the standards set forth in § 50-7-303(a)(3)(A) and (B) as required by applicable federal law;
      5. No provision of this subsection (a) or any other provision of law shall be construed to deny unemployment benefits to any claimant who is a veteran enrolled in school under the Veterans' Educational Assistance Program, commonly known as the “G.I. Bill”, compiled in 38 U.S.C. § 1650 et seq., solely because of the claimant's enrollment and attendance in school, if the claimant is otherwise eligible for the benefits, except that if the claimant is offered the same job that the claimant previously held immediately prior to entering the school and refuses the job, then the claimant shall become ineligible for benefits as provided by § 50-7-303(a)(3) if the job meets the standards set forth in § 50-7-303(a)(3)(A) and (B) as required by applicable federal law; and
      6. A claimant shall be considered ineligible for benefits if the claimant is incarcerated four (4) or more days in any week for which unemployment benefits are being claimed;
      1. The claimant has been unemployed for a waiting period of one (1) week. For the purpose of this subsection (a), one (1) week of part total or partial unemployment or other forms of short time work shall be deemed one (1) week of unemployment. No week shall be counted as a week of unemployment for the purposes of this subsection (a), unless:
        1. It occurs within the benefit year that includes the week with respect to which the claimant claims payment of benefits;
        2. No benefits have been paid with respect to the week to which the claimant claims payment of benefits; and
        3. The claimant was eligible for benefits with respect to the week to which the claimant claims payment of benefits as provided in § 50-7-303 and this section, except for the requirements of this subsection (a);
      2. Benefits shall be payable to a claimant for the waiting period, provided the claimant has made a claim for benefits and is determined to be eligible and certified for benefits in the waiting period and in each of the three (3) consecutive weeks immediately following the waiting period;

        [Effective until January 1, 2021.]

      3. Notwithstanding this subdivision (a)(5), the commissioner, in the commissioner's sole discretion, may suspend the one-week waiting period imposed by this subdivision (a)(5) in accordance with 42 U.S.C. § 1103(h)(3)(B), as enacted in the Families First Coronavirus Response Act;
    5. The claimant has satisfied the wages requirements of § 50-7-301(b);
    6. The claimant has satisfied the requirements of § 50-7-301(d); and
    7. The claimant participates in reemployment services, such as job search assistance services, if the claimant has been determined to be likely to exhaust regular benefits and to need reemployment services pursuant to a profiling system established by the administrator, unless the administrator determines that:
      1. The claimant has completed the services; or
      2. There is justifiable cause for the claimant's failure to participate in the services.
  2. Special Rules.  The following special rules shall apply in the circumstances indicated:
    1. If the qualifying base period wages of the claimant's current benefit year include wages paid prior to the establishment of a previous benefit year, the claimant shall not be eligible for any benefits under this chapter unless the claimant has been paid wages for insured work performed after the establishment of the previous benefit year equal to at least five (5) times the claimant's weekly benefit amount in the claimant's preceding benefit year;
    2. Benefits based on service after December 31, 1977, in employment defined in § 50-7-207(b)(3) and (c)(5) shall be payable in the same amount, on the same terms and subject to the same conditions as benefits payable on the basis of other service subject to this chapter; provided, that:
      1. With respect to services performed in an instructional, research or principal administrative capacity for an educational institution, benefits shall not be paid based on the services for any week of unemployment commencing during the period between two (2) successive academic years or terms, or, when an agreement provides instead for a similar period between two (2) regular but not successive terms, during that period, or during a period of paid sabbatical leave provided for in the claimant's contract, to any claimant if the claimant performs the services in the first of the academic years or terms, or if there is a contract or a reasonable assurance that the claimant will perform services in that capacity for any educational institution in the second of the academic years or terms;
      2. With respect to services performed in any other capacity for an educational institution:
        1. Benefits shall not be paid on the basis of the services to any individual for any week that commences during a period between two (2) successive academic years or terms, if the individual performs the services in the first of the academic years or terms and there is a reasonable assurance that the individual will perform the services in the second of the academic years or terms, except that;
        2. If compensation is denied to any claimant for any week under subdivision (b)(2)(B)(i) and the claimant was not offered an opportunity to perform the services for any educational institution for the second of the academic years or terms, the claimant shall be entitled to a retroactive payment of compensation for each week for which the claimant filed a timely claim for compensation and for which compensation was denied solely by reason of subdivision (b)(2)(B)(i);
      3. With respect to weeks of unemployment beginning after December 31, 1977, benefits shall be denied to any claimant for any week that commences during an established and customary vacation period or holiday recess that has been predetermined as part of a school calendar prior to the beginning of each fiscal year if the claimant performs any services described in subdivision (b)(2)(A) or (b)(2)(B) in the period immediately before the vacation period or holiday recess, and there is a reasonable assurance that the claimant will perform any such services in the period immediately following the vacation period or holiday recess;
      4. With respect to services performed for any educational institution, benefits shall not be payable on the basis of services in the capacities specified in subdivision (b)(2)(A), (b)(2)(B) or (b)(2)(C) to an individual who performed the services in an educational institution while in the employ of an educational service agency, and for this purpose “educational service agency” means a governmental entity that is established and operated exclusively for the purpose of providing the services to one (1) or more educational institutions; and
      5. With respect to services performed for an educational institution, benefits shall not be payable on the basis of services in any such capacities as specified in subdivision (b)(2)(A), (b)(2)(B), or (b)(2)(C) to an individual who provided such services to or on behalf of an educational institution;
    3. Benefits shall not be paid to any claimant on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week that commences during the period between two (2) successive sport seasons, or similar periods, if the claimant performed the services in the first of the seasons, or similar periods, and there is a reasonable assurance that the claimant will perform the services in the later of the seasons, or similar periods; and
      1. Benefits shall not be payable on the basis of services performed by an alien unless the alien is an individual who was lawfully admitted for permanent residence at the time the services were performed, was lawfully present for the purposes of performing the services, or was permanently residing in the United States under color of law at the time the services were performed, including an alien who was lawfully present in the United States as the result of the application of the Immigration and Nationality Act, § 203(a)(7) or § 212(d)(5), compiled in 8 U.S.C. §§ 1153(a)(7) [deleted by amendment] and 1182(d)(5), respectively.
      2. Any data or information required of claimants applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all claimants applying for benefits.
      3. In the case of a claimant whose application for benefits would otherwise be approved, no determination that benefits to the claimant are not payable because of the claimant's alien status shall be made except upon a preponderance of the evidence.
  3. Partial Unemployment Claims.  A penalty in the amount of fifty dollars ($50.00) may be assessed against any employer for failure to file partial claims required by regulations and within the time limits required by regulations for individuals having regular jobs with the employers, but who have sustained underemployment as defined in the regulations. In the event the commissioner finds that the employer had good cause for failure to comply with the regulations, this penalty may be waived.

Acts 1947, ch. 29, § 4; C. Supp. 1950, § 6901.4 (Williams, § 6901.28); Acts 1951, ch. 139, § 3; 1955, ch. 115, §§ 5, 6; 1957, ch. 146, §§ 4, 5; 1959, ch. 160, § 2; 1959, ch. 202, § 2; 1963, ch. 176, § 3; 1965, ch. 183, § 2; 1971, ch. 204, §§ 4, 5; 1972, ch. 556, §§ 2, 3; 1974, ch. 460, § 4; 1975, ch. 190, § 5; 1975, ch. 367, § 1; 1977, ch. 330, §§ 15-17; 1977, ch. 423, § 1; 1978, ch. 744, §§ 3-7; 1978, ch. 812, § 1; 1979, ch. 336, § 1; 1981, ch. 165, § 1; 1982, ch. 820, § 2; T.C.A. (orig. ed.), § 50-1323; Acts 1983, ch. 368, § 9; 1984, ch. 701, § 2; 1985, ch. 318, § 20; 1985, ch. 323, § 5; 1993, ch. 194, § 12; 1995, ch. 502, §§ 1, 3; 1999, ch. 202, § 1; 2000, ch. 888, § 1; 2009, ch. 550, § 6; 2011, ch. 248, § 1; 2012, ch. 1050, §§ 3, 4; 2013, ch. 427, §§ 6, 7; 2016, ch. 1063, § 1; 2020, ch. 745, § 2.

Compiler's Notes. Section 203 of the Immigration and Nationality Act, referred to in this section, and codified at 8 U.S.C. § 1153, was amended to delete subsection (a)(7).

Acts 1999, ch. 202, § 3 provided that the amendment by that act shall take effect for benefit years established on or after July 4, 1999.

Acts 2000, ch. 888, § 2 provided that the amendment by that act shall apply to benefit years established on or after July 2, 2000.

Acts 2012, ch. 1050, § 1 provided that the act, which amended subdivision (a)(4), shall be known and may be cited as the “Unemployment Insurance Accountability Act of 2012.”

Acts 2013, ch. 427, § 8 provided that notwithstanding any other provision of law to the contrary, any provision of the act shall not apply to the extent that compliance with such provision would violate federal law or cause a loss of federal funding.

Acts 2016, ch. 1063, § 4 provided that the act, which amended this section, shall apply to unemployment claims filed on or after July 1, 2016.

Acts 2020, ch. 745, § 4 provided that act section 2, which added subdivision (a)(5)(C), is repealed on January 1, 2021.

Amendments. The 2016 amendment, in (a)(4), substituted “The administrator shall verify whether claimants” for “The administrator shall conduct random verification audits of one thousand five hundred (1,500) claimants weekly to determine if claimants” at the beginning of the second sentence; rewrote the third sentence which read: “The administrator shall disqualify any claimant receiving benefits who the administrator finds, as the result of a random audit or on information provided to the administrator, has provided false work search information for a period of not less than eight (8) benefit weeks.”, and deleted “any” following ‘claimant's usual occupation or” near the middle of the last sentence.

The 2020 amendment added (a)(5)(C).

Effective Dates. Acts 2016, ch. 1063, § 4. July 1, 2016.

Acts 2020, ch. 745, § 4. June 22, 2020.

Law Reviews.

Unemployment Compensation — Availability Requirement, 34 Tenn. L. Rev. 335 (1967).

NOTES TO DECISIONS

1. Availability for Work.

Board was justified in finding that short time consumed by picketing by employees who were refused the right to resume work after having walked out in protest of suspension of fellow union member did not make them unavailable for work where the time allotted for picket service was one hour and it did not appear that such service was daily or would interfere with their employment. Milne Chair Co. v. Hake, 190 Tenn. 395, 230 S.W.2d 393, 1950 Tenn. LEXIS 499 (1950).

Finding by board of review that claimant was not entitled to benefits on the ground that she was not available for full time employment was conclusive where there was evidence before the board that she was required to lose one day in every five day week due to illness. Miller v. Wiley, 190 Tenn. 498, 230 S.W.2d 979, 1950 Tenn. LEXIS 511 (1950).

An employee who refuses voluntarily to continue working the night shift in suitable work, allegedly for reasons of health, but without proof, is not ready and available for work and therefore not entitled to unemployment compensation. Moore v. Commissioner of Employment Sec., 197 Tenn. 444, 273 S.W.2d 703, 1954 Tenn. LEXIS 506 (1954).

Where employer had suggested that claimant for unemployment benefits report back within two weeks, and evidence established that employee failed to do so, material evidence supported board's finding that claimant was unavailable for work. Duke v. Scott, 216 Tenn. 391, 392 S.W.2d 809, 1965 Tenn. LEXIS 584 (1965).

Evidence that employee failed to report back to work in two weeks after being laid off as suggested by employer supported finding of board of review that he was unavailable for work. Duke v. Scott, 216 Tenn. 391, 392 S.W.2d 809, 1965 Tenn. LEXIS 584 (1965).

An employee who refuses without good cause to accept suitable work when offered is not available for work. Aladdin Industries, Inc. v. Scott, 219 Tenn. 71, 407 S.W.2d 161, 1966 Tenn. LEXIS 507 (1966).

A person is not available for work within the meaning of the statute unless he is accessible or attainable for work when suitable work is offered at such hours as are customary in the type of employment to which he is suited. Aladdin Industries, Inc. v. Scott, 219 Tenn. 71, 407 S.W.2d 161, 1966 Tenn. LEXIS 507 (1966).

The issue of whether claimant is available for work and whether work offered the claimant is or is not suitable are issues to be construed together under this section and § 50-7-303. Aladdin Industries, Inc. v. Scott, 219 Tenn. 71, 407 S.W.2d 161, 1966 Tenn. LEXIS 507 (1966).

The issue of whether a claimant made himself “available for work” is an ultimate fact issue if the facts are in dispute and the court is limited to the determination of whether there is any evidence to support the board's findings. Aladdin Industries, Inc. v. Scott, 219 Tenn. 71, 407 S.W.2d 161, 1966 Tenn. LEXIS 507 (1966).

Trial court erred in affirming the decision of the Tennessee Department of Labor and Workforce Development, which awarded a substitute teacher unemployment benefits because Designee of the Commissioner of the Department did not make findings that the teacher met the eligibility conditions in T.C.A. § 50-7-302(a)(4), specifically, that she was able to work, available for work, and making a reasonable effort to secure work. Metro Gov't of Nashville & Davidson County v. Tenn. Dep't of Labor & Workforce Dev., — S.W.3d —, 2014 Tenn. App. LEXIS 733 (Tenn. Ct. App. Nov. 13, 2014).

2. Policy and Custom.

Employee was not entitled to unemployment compensation for period in which she did not work due to plant shut-down in accordance with long and well-established policy and custom to allow employee vacations and annual maintenance and repairs even though pay during that period was less than employee would have been entitled to as unemployment compensation. Hesson v. Scott, 217 Tenn. 250, 397 S.W.2d 176, 1965 Tenn. LEXIS 539, 1965 Tenn. LEXIS 540 (1965).

3. Benefits Properly Denied.

Where plaintiff voluntarily imposed restrictions upon her availability for work; imposing medical restrictions that were beyond those restrictions set by her doctors, and also imposing financial restrictions, the plaintiff was properly denied benefits on the basis that she was not able and available for work. Ford v. Traughber, 813 S.W.2d 141, 1991 Tenn. App. LEXIS 174 (Tenn. Ct. App. 1991).

Where substantial and material evidence supported the finding of claimant's disability to return to work, she was disqualified to receive unemployment benefits. Sliger v. Stokes, 953 S.W.2d 208, 1997 Tenn. App. LEXIS 234 (Tenn. Ct. App. 1997).

Collateral References.

Alien's right to unemployment compensation benefits. 87 A.L.R.3d 694.

Eligibility as affected by claimant's refusal to comply with requirements as to dress, grooming, or hygiene. 88 A.L.R.3d 150.

Eligibility as affected by mental, nervous, or psychological disorder. 1 A.L.R.4th 802.

Eligibility for unemployment compensation of employee who retires voluntarily. 75 A.L.R.5th 339.

Employee's control or ownership of corporation as precluding receipt of benefits under state unemployment compensation provisions. 23 A.L.R.5th 176.

General principles pertaining to statutory disqualification for unemployment compensation benefits because of strike or labor dispute. 63 A.L.R.3d 88.

Harassment or other mistreatment by employer or supervisor as “good cause” justifying abandonment of employment. 76 A.L.R.3d 1089.

Refusal of nonstriking employee to cross picket line as justifying denial of unemployment compensation benefits. 62 A.L.R.3d 380.

Right to unemployment compensation as affected by claimant's receipt of holiday pay. 3 A.L.R.4th 557.

Right to unemployment compensation of one who quit because of pay reduction. 95 A.L.R.3d 449.

Right to unemployment compensation or social security benefits of teacher or other school employee. 33 A.L.R.5th 643.

Unemployment compensation: Application of labor dispute disqualification for benefits to locked out employee. 62 A.L.R.3d 437.

Unemployment compensation: Eligibility as affected by claimant's refusal to work at particular times or on particular shifts. 35 A.L.R.3d 1129, 12 A.L.R.4th 611, 2 A.L.R.5th 475.

Unemployment compensation: Eligibility of employee laid off according to employer's mandatory retirement plan. 50 A.L.R.3d 880.

Unemployment compensation: Leaving employment in pursuit of education or to attend training as affecting right to unemployment compensation. 47 A.L.R.5th 775.

Unemployment compensation: Leaving employment in pursuit of other employment as affecting right to unemployment compensation. 46 A.L.R.5th 659.

Unemployment compensation: Leaving employment to become self-employed or to go into business for oneself as affecting right to unemployment compensation. 45 A.L.R.5th 715.

Work-related inefficiency, incompetence, or negligence as “misconduct” barring unemployment compensation. 95 A.L.R.5th 329.

50-7-303. Disqualification for benefits.

  1. Disqualifying Events.  A claimant shall be disqualified for benefits:
        1. If the administrator finds that the claimant has left the claimant's most recent work voluntarily without good cause connected with the claimant's work. Except as otherwise provided in subdivision (a)(1)(A)(ii)(b ), the disqualification shall be for the duration of the ensuing period of unemployment and until the claimant has secured subsequent employment covered by the unemployment compensation law of this state, another state, or the United States, and was paid wages by the subsequent employment ten (10) times the claimant's weekly benefit amount. This disqualification shall not apply to a claimant who left the claimant's work in good faith to join the armed forces of the United States;
        2. (a)  A claimant who has left the claimant's most recent work due to sickness, disability, or pregnancy shall be considered to have left voluntarily without good cause for purposes of disqualification under subdivision (a)(1)(A)(i);
          1. (ii)  (a)  A claimant who has left the claimant's most recent work due to sickness, disability, or pregnancy shall be considered to have left voluntarily without good cause for purposes of disqualification under subdivision (a)(1)(A)(i);
          2. Notwithstanding subdivision (a)(1)(A)(ii)(a ), a claimant who has left the claimant's most recent work due to sickness, disability, or pregnancy shall become eligible for unemployment compensation upon providing proof satisfactory to the administrator that the claimant:
            1. Was forced to leave the claimant's most recent work because the claimant was sick, disabled, or pregnant and such evidence is supported by competent medical proof;
            2. Provided written notification to the claimant's most recent employer that the claimant was forced to leave as described in this subdivision (a)(1)(A)(ii) as soon as it was reasonably practical to do so;
            3. Was able to return to the claimant's most recent work, and such evidence is supported by competent medical proof;
            4. Returned to the claimant's most recent work and offered to work and perform the claimant's former duties once the claimant was able, and the employer did not reemploy the claimant; and
            5. Is otherwise eligible to receive benefits under this chapter;
        3. Nothing in subdivision (a)(1)(A)(ii) shall entitle a claimant, retroactively or otherwise, to receive benefits for the period in which a claimant is unable to work;
      1. The disqualification provided in subdivision (a)(1)(A) shall not apply to a claimant who left employment because the claimant’s spouse is a member of the armed services of the United States, the spouse is the subject of a military transfer, and the claimant left employment to accompany the claimant’s spouse; provided, however, that any benefits payable under this subdivision (a)(1)(B) shall be paid from the state’s general revenue funds and the payment of any such benefits shall not adversely affect the employer’s experience rating for purposes of determining premiums;
      1. If the administrator finds that a claimant has been discharged from the claimant's most recent work for misconduct connected with the claimant's work, the disqualification shall be for the duration of the ensuing period of unemployment and until the claimant has secured subsequent employment covered by an unemployment compensation law of this state, another state, or the United States, and was paid wages by the subsequent employment ten (10) times the claimant's weekly benefit amount;
        1. A discharge resulting from a positive result from a drug test for drugs administered in conformity with chapter 9 of this title shall be deemed to be a discharge for misconduct connected with the claimant's work;
        2. A discharge resulting from an alcohol test administered in conformity with chapter 9 of this title, where the claimant's blood alcohol concentration level is equal to or greater than ten-hundredths of one percent (0.10%) by weight for non-safety-sensitive positions, and four-hundredths of one percent (0.04%), as determined by blood or breath testing, for safety-sensitive positions, shall be deemed to be a discharge for misconduct connected with work;
        3. A discharge resulting from a refusal to take a drug test or an alcohol test authorized by chapter 9 of this title shall be deemed to be a discharge for misconduct connected with work where it is based upon substantial and material evidence of the employee's refusal;
        4. As regards an injured employee, refusal shall not be presumed from failure to take the test during a period of approved medical leave;
      2. A discharge shall be deemed to be a discharge for misconduct connected with the claimant's work when it results after a claimant entered into a written agreement with an employer to obtain a license or certification by a specified date as a condition of employment and subsequently the claimant willfully fails without good cause to obtain such license or certification by the specified date;
      1. If the administrator finds that the claimant has failed without good cause either to apply for available, suitable work, when so directed by the employment office or the administrator, or to accept suitable work when offered, or to return to the claimant's customary self-employment, if any, when so directed by the administrator. The disqualification shall continue for the week in which the failure occurred, and for the duration of the ensuing period of unemployment and until the claimant has secured subsequent employment covered by an unemployment compensation law of this state, another state, or the United States, and was paid wages by the subsequent employment ten (10) times the claimant's weekly benefit amount. In determining whether or not any work is suitable for a claimant, the administrator shall consider the degree of risk involved to the claimant's health, safety and morals, the claimant's physical fitness and prior training, the claimant's experience and prior earnings, the claimant's length of unemployment and prospects for securing local work in the claimant's customary occupation, and the distance of the available work from the claimant's residence. Work is suitable if the work meets all the other criteria of this subdivision (a)(3) and if the gross weekly wages for the work equal or exceed the following percentages of the claimant's average weekly wage for insured work paid to the claimant during that quarter of the claimant's base period in which the claimant's wages were highest:
        1. One hundred percent (100%), if the work is offered during the first thirteen (13) weeks of unemployment;
        2. Seventy-five percent (75%), if the work is offered during the fourteenth through the twenty-fifth week of unemployment;
        3. Seventy percent (70%), if the work is offered during the twenty-sixth through the thirty-eighth week of unemployment; and
        4. Sixty-five percent (65%), if the work is offered after the thirty-eighth week of unemployment. This subdivision (a)(3) shall not be construed as requiring a claimant to accept employment below the federal minimum wage;
      2. Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied under this section to any otherwise eligible claimant for refusing to accept new work under any of the following conditions:
        1. If the position offered is vacant due directly to a strike, lockout or other labor dispute;
        2. If the wages, hours or other conditions of the work offered are substantially less favorable to the claimant than those prevailing for similar work in the locality; or
        3. If, as a condition of being employed, the claimant would be required to join a company union or to resign from or refrain from joining any bona fide labor organization;
      1. For any week with respect to which the administrator finds that the claimant's total or partial unemployment is due to a labor dispute, other than a lockout that is in active progress at the factory, establishment or other premises at which the claimant is or was last employed; provided, that this subdivision (a)(4) shall not apply if it is shown to the satisfaction of the administrator that:
        1. The claimant is not participating in the labor dispute that caused the claimant's total or partial unemployment;
        2. The claimant does not belong to a grade or class of workers of which immediately before the commencement of the labor dispute there were members employed at the premises at which the labor dispute occurs, any of whom are participating in the dispute; and
        3. The claimant was indefinitely separated from employment prior to the labor dispute and is otherwise eligible for benefits. Subdivision (a)(4)(A)(ii) notwithstanding, persons who were separated before the commencement of the labor dispute, and who were eligible for benefits as a result of the separation, shall continue to be eligible for benefits as long as they do not participate in the labor dispute and remain otherwise eligible. For purposes of this subdivision (a)(4)(A)(iii), an “indefinite separation” means that the relationship between the employee and employer has been severed without a reasonably definite recall date;
      2. If, in any case, separate branches of work that are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each department shall, for the purposes of this subsection (a), be deemed to be a separate factory, establishment or other premises;
      3. Disqualification imposed by this subdivision (a)(4) shall be for the duration of the labor dispute or until the claimant has secured employment covered by an unemployment compensation law of this state, another state, or the United States, and was paid by subsequent employment ten (10) times the claimant's weekly benefit amount. The subsequent employment must meet the definition of “most recent work” as set forth in subsection (b);
    1. For any week with respect to which the claimant is receiving, or has received, remuneration in the form of compensation for temporary partial disability under the workers' compensation law of any state or under a similar law of the United States;
      1. For any week with respect to which, or a part of which the claimant has received, or is seeking, unemployment benefits under an unemployment compensation law of another state or of the United States; however, if the appropriate agency of the other state or of the United States finally determines that the claimant is not entitled to the unemployment benefits, this disqualification shall not apply. The disqualification imposed by this subdivision (a)(6)(A) shall not apply to any claimant who is seeking or who has received benefits provided for by the Veterans' Readjustment Assistance Act of 1952, Act of July 16, 1952, ch. 875, 66 Stat. 663 [repealed], and any payments previously made by the division of employment security to a claimant who was seeking or received simultaneous benefits under the Veterans' Readjustment Assistance Act of 1952 [repealed] are validated;
      2. In addition, a claimant shall be disqualified from obtaining the advantage of a waiting period for any week with respect to which, or a part of which, the claimant has received, or is seeking, unemployment benefits under an unemployment compensation law of another state or of the United States; however, if the appropriate agency of the other state or of the United States finally determines that the claimant is not entitled to the unemployment benefits, this disqualification shall not apply. The disqualification imposed by this subdivision (a)(6)(B) shall not apply to any claimant who is seeking or who has received benefits provided for by the Veterans' Readjustment Assistance Act of 1952 [repealed];
    2. For the week or weeks in which the administrator finds that the claimant has made any false or fraudulent representation or intentionally withheld material information for the purpose of obtaining benefits contrary to this chapter and for not less than four (4) nor more than the fifty-two (52) next following weeks, beginning with the week following the week in which the findings were made, as determined by the administrator in each case according to the seriousness of the facts. In addition, the claimant shall remain disqualified from future benefits so long as any portion of the overpayment or interest on the overpayment is still outstanding. In the event an overpayment of benefits results from the application of this disqualifying provision, the overpayment of benefits shall not be chargeable to any employer's account for experience rating purposes;
      1. For any week with respect to which a claimant is receiving or is entitled to receive a pension, which includes a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment, under a plan maintained or contributed to by a base period or chargeable employer as follows: The weekly benefit amount payable to the claimant for that week shall be reduced, but not below zero (0):
        1. By the entire prorated weekly amount of the pension if one hundred percent (100%) of the contributions to the plan were provided by a base period or chargeable employer; provided, that no reduction shall be made if one hundred percent (100%) of the pension is rolled into an individual retirement account (IRA); and
        2. By no part of the pension if any contributions to the plan were provided by the claimant during the claimant's base period;
      2. No reduction shall be made under this subdivision (a)(8) by reason of the receipt of a pension if the services performed by the claimant during the base period for the employer, or remuneration received for the services, did not affect the claimant's eligibility for, or increase the amount of, the pension, retirement or retired pay, annuity, or similar payment. The conditions specified by this subsection (a) shall not apply to pensions paid under the Social Security Act, compiled in 42 U.S.C. § 301 et seq., or the Railroad Retirement Act of 1974, or the corresponding provisions of prior law. Payments made under those acts shall be treated solely in the manner specified by subdivisions (a)(8)(A)(i) and (ii);
      3. For purposes of this subdivision (a)(8), if any reduced benefit payment for any week is not a multiple of one dollar ($1.00), it shall be computed to the next lower multiple of one dollar ($1.00);
      4. Any annuities, pensions or retirement pay that is disqualifying pursuant to this section and is payable at the option of the claimant on either a lump sum or periodic basis shall be treated as though it were paid on the periodic basis specified;
      5. For purposes of this subdivision (a)(8), an individual shall be deemed entitled to receive a pension if a determination has been made by appropriate officials of the individual's vested right to a pension for any week in which the individual is entitled to receive benefits under this chapter;
      1. For any week for which a claimant receives the claimant's regular wages for a vacation period under terms of a labor-management agreement or other contract of hire allocating the pay to designated week or weeks for vacation purposes, but if the remuneration for any week is less than the benefit that would be due the claimant for the week under this chapter, the claimant shall be entitled to receive for the week, if otherwise eligible, benefits reduced by the amount of the remuneration; provided, that the total amount of benefits, if not a multiple of one dollar ($1.00), shall be computed at the next lower multiple of one dollar ($1.00);
      2. Subdivision (a)(9)(A) shall apply only if it is found by the administrator that employment will be available for the claimant with the employer at the end of a vacation period described in this subsection (a);
      3. If an employee elects to take the employee's vacation at a period other than that designated in the agreement or contract of hire, any vacation pay shall be considered as having been paid for the vacation week or weeks designated in the agreement or contract of hire;
    3. If the administrator finds that a claimant has been discharged from the claimant's most recent work because such claimant's actions, not previously known or permitted by the employer, placed the claimant's employer in violation of the Fair Labor Standards Act, compiled in 29 U.S.C. § 201 et seq., the disqualification shall be for the duration of the ensuing period of unemployment and until the claimant has secured subsequent employment covered by an unemployment compensation law of this state, or another state, or of the United States, and was paid wages by the subsequent employment ten (10) times the claimant's weekly benefit amount;
    4. For any week with respect to which the claimant is receiving, or has received, remuneration in the form of wages in lieu of notice unless the claimant's employer has filed notice pursuant to § 50-1-602 as of July 1, 2012;
    5. If the claimant received a severance package from an employer that includes an equivalent amount of salary the employee would have received if the employee was working during that week unless the claimant's employer has filed notice pursuant to § 50-1-602 as of July 1, 2012;
    6. If the claimant was discharged from the claimant's most recent work through a layoff by the employer and the employer has offered the claimant the same job the claimant had prior to the layoff or a similar job with an equivalent level of compensation that the claimant had prior to the layoff. The disqualification shall be for the duration of the ensuing period of unemployment and until the claimant has secured subsequent employment covered by an unemployment compensation law of this state, another state, or the United States, and was paid wages by the subsequent employment ten (10) times the claimant's weekly benefit amount; or
    7. If the claimant has an offer of work withdrawn by an employer due to the claimant's refusal to submit to a drug test or the claimant's positive result from a drug test. The disqualification shall be for the duration of the ensuing period of unemployment and until the claimant has secured subsequent employment covered by an unemployment compensation law of this state, another state, or the United States, and was paid wages by the subsequent employment ten (10) times the claimant's weekly benefit amount.
  2. Definitions.  The following definitions apply with respect to the following subdivisions of this section:
    1. For purposes of subdivisions (a)(1) and (2), “most recent work” means employment with:
      1. Any employer covered by an unemployment compensation law of this state, another state, or the United States for whom the claimant last worked and voluntarily quit without good cause connected with the claimant's work;
      2. Any employer covered by an unemployment compensation law of this state, another state, or the United States for whom the claimant last worked and was discharged for misconduct connected with the claimant's work; or
      3. Any employer covered by an unemployment compensation law of this state, another state, or the United States for whom the claimant last worked and earned wages equal to or exceeding ten (10) times the claimant's weekly benefit amount or, if the wages paid are less than ten (10) times the claimant's weekly benefit amount, it shall be considered as the “most recent work” when a preponderance of evidence establishes that the intent of the hiring agreement was to provide for regular permanent employment. Short term employment shall be considered most recent work if the employment is traditionally a part of the claimant's chosen profession;
    2. For purposes of subdivision (c)(2), “suitable employment” means, with respect to a claimant, work of a substantially equal or higher skill level than the claimant's past adversely affected employment as defined for purposes of the Trade Act of 1974, compiled in 19 U.S.C. § 2101 et seq., and wages for the work at not less than eighty percent (80%) of the claimant's average weekly wage as determined for the purposes of the Trade Act of 1974;
    3. For purposes of subdivision (a)(2):
      1. “Misconduct” includes, but is not limited to, the following conduct by a claimant:
        1. Conscious disregard of the rights or interests of the employer;
        2. Deliberate violations or disregard of reasonable standards of behavior that the employer expects of an employee;
        3. Carelessness or negligence of such a degree or recurrence to show an intentional or substantial disregard of the employer's interest or to manifest equal culpability, wrongful intent or shows an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to the employee's employer;
        4. Deliberate disregard of a written attendance policy and the discharge is in compliance with such policy;
        5. A knowing violation of a regulation of this state by an employee of an employer licensed by this state, which violation would cause the employer to be sanctioned or have the employer's license revoked or suspended by this state; or
        6. A violation of an employer's rule, unless the claimant can demonstrate that:
          1. The claimant did not know, and could not reasonably know, of the rule's requirements; or
          2. The rule is unlawful or not reasonably related to the job environment and performance;
      2. “Misconduct” also includes any conduct by a claimant involving dishonesty arising out of the claimant's employment that constitutes an essential element of a crime for which the claimant was convicted;
      3. “Misconduct” also includes any conduct constituting a criminal offense for which the claimant has been convicted or charged that:
        1. Involves dishonesty arising out of the claimant's employment; or
        2. Was committed while the claimant was acting within the scope of employment; and
      4. “Misconduct” does not include:

        Inefficiency, or failure to perform well as the result of inability or incapacity;

        Good faith errors in judgment or discretion; and

        Inadvertence or ordinary negligence in isolated instances; or

    4. For purposes of subdivision (a)(11), “wages in lieu of notice” means wages paid under circumstances where the employer, not having given an advance notice of separation to the employee, and irrespective of the length of service of the employee, makes a payment to the employee equivalent to the wages the employee could have earned had the employee been permitted to work during the period of notice.
  3. Qualifications.  Notwithstanding any other law to the contrary:
    1. Benefits shall not be denied under this chapter to any otherwise eligible claimant for separation from employment pursuant to a labor-management contract or agreement, or pursuant to an established employer plan, program, policy, layoff or recall that permits the claimant (employee), because of lack of work, to accept a separation from employment. However, benefits shall be denied a claimant for separation from employment resulting from the claimant's acceptance of an employer's program that provides incentives to employees for voluntarily terminating their employment;
    2. No otherwise eligible claimant shall be denied benefits for any week because of leaving work to enter training approved under § 236(a)(1) of the Trade Act of 1974, codified in 19 U.S.C. § 2296(a)(1), provided the work left is not suitable employment, as defined in § 236(e) of the Trade Act of 1974, codified in 19 U.S.C. § 2296(e), or because of the application to any such week in training of provisions in this law or any applicable federal unemployment compensation law relating to active search for work, availability for work or refusal to accept suitable work; and
    3. Benefits shall not be reduced or denied under this chapter to any otherwise eligible claimant due to such claimant's enrollment in any institution of higher education.
  4. Overpayments.
    1. Any person who is overpaid any amounts as benefits under this chapter is liable to repay those amounts, except as otherwise provided by this subsection (d) or by § 50-7-304(b)(2).
    2. Upon written request by any person submitted to the administrator within ninety (90) days from the date of determination of the overpayment, the administrator shall waive repayment of the overpaid amounts if the person proves to the satisfaction of the administrator that all of the following conditions exist:
      1. The overpayment was not due to fraud, misrepresentation or willful nondisclosure on the part of the person;
      2. The overpayment was received without fault on the part of the person; and
      3. The recovery of the overpayment from the person would be against equity and good conscience.
      1. The administrator may waive the collection of any overpayment that is due to fraud, misrepresentation or willful nondisclosure on the part of the person who was overpaid and that is outstanding after the expiration of six (6) years from the date of determination of the overpayment.
      2. The administrator may waive the collection of any overpayment that is not due to fraud, misrepresentation or willful nondisclosure on the part of the person who was overpaid and that is outstanding after the expiration of six (6) years from the date of determination of the overpayment.
      3. If a waiver is given by the administrator pursuant to subdivision (d)(3)(A) or (d)(3)(B), such waiver shall only be made by the administrator in accordance with § 4-4-120 and procedures established pursuant to such section.
    3. Any person who is overpaid any amounts as benefits under this chapter has the right to appeal the determination of overpayment. A person may request a waiver of overpayment in accordance with the conditions of subdivision (d)(2). Upon determination that a person has been overpaid, the person shall be given timely notice of the person's right to appeal the determination of overpayment in accordance with § 50-7-304, and the person's right to request a waiver of overpayment in accordance with subdivision (d)(2). The notice shall indicate that there is a determination of overpayment, the reasons for the determination, the person's rights to contest the determination or request a waiver of the overpayment, and the time period during which the appeal must be filed or the waiver request must be submitted. A recovery of overpayment by reduction of benefits as to a subsequent claim shall not occur until notice is provided to a person, previously determined to be overpaid, of the person's right to request a waiver of overpayment in accordance with subdivision (d)(2).
    1. Back Pay Awards.   For unemployment insurance benefit purposes, the amount of back pay constitutes wages paid in the period for which it was awarded. Any employer who is a party to a back pay award settlement due to loss of wages is required to report to the division of employment security within thirty (30) days of the ruling:
      1. The amount of the award settlement;
      2. The name and social security number of the recipient; and
      3. The calendar weeks for which the back pay was awarded.
    2. It is the intent of the general assembly that no overpayment of benefits shall be established as a result of a back pay award.

Acts 1947, ch. 29, § 5; 1949, ch. 226, §§ 3-5; C. Supp. 1950, § 6901.5 (Williams, § 6901.29); Acts 1951, ch. 139, § 4; 1953, ch. 173, § 1; 1953, ch. 244, § 3; 1955, ch. 115, §§ 7-10; 1957, ch. 146, §§ 6, 7; 1959, ch. 202, §§ 3-6; 1961, ch. 263, § 1; 1963, ch. 176, § 4; 1967, ch. 208, § 3; 1971, ch. 132, § 2; 1973, ch. 130, § 4; 1974, ch. 460, §§ 5, 6; 1977, ch. 330, § 18; impl. am. Acts 1980, ch. 534, § 1; Acts 1980, ch. 641, §§ 2, 9; 1980, ch. 783, § 2; 1981, ch. 35, § 1; 1981, ch. 249, § 3; 1982, ch. 606, § 1; 1982, ch. 820, §§ 3-6; T.C.A. (orig. ed.), § 50-1324; Acts 1983, ch. 368, §§ 7, 8; 1985, ch. 169, § 1; 1985, ch. 317, §§ 2, 5; 1985, ch. 318, § 21; 1985, ch. 383, § 1; 1986, ch. 537, §§ 1, 2; 1986, ch. 597, § 2; 1987, ch. 212, § 1; 1987, ch. 317, § 1; 1987, ch. 344, § 1; 1987, ch. 368, §§ 1, 2; 1987, ch. 424, §§ 1-3; 1992, ch. 694, § 5; 1993, ch. 194, § 13; 1995, ch. 502, § 2; 1995, ch. 503, §§ 1-3; 1998, ch. 591, § 1; 1998, ch. 852, § 1; 1999, ch. 202, § 2; 2001, ch. 82, § 2; 2007, ch. 183, §§ 2-5; 2009, ch. 479, §§ 1, 2; 2010, ch. 781, § 1; 2012, ch. 682, § 1; 2012, ch. 824, § 1; 2012, ch. 940, § 1; 2012, ch. 1050, §§ 2, 6-8; 2013, ch. 427, §§ 3, 9, 10; 2016, ch. 1063, § 2.

Compiler's Notes. The Veterans' Readjustment Assistance Act of 1952, referred to in this section and formerly compiled in 38 U.S.C. 1651, et seq., was repealed by Act of September 2, 1958, Pub. L. No. 85-857, § 14(101), 72 Stat. 1273.

Acts 1995, ch. 503, § 8 provides that the 1995 amendment to (c)(1) shall take effect for all claimants filing claims on or after July 2, 1995.

Acts 1999, ch. 202, § 3 provided that the amendment by that act shall take effect for benefit years established on or after July 4, 1999.

Acts 2007, ch. 183, § 8 provided that § 4 of the act shall apply to claimants awarded back pay awards on or after July 2, 2006, and that all other sections of the act shall apply to claimants filing initial claims on or after July 2, 2007.

Acts 2012, ch. 1050, § 1 provided that the act, which amended subsections (a) and (b), shall be known and may be cited as the “Unemployment Insurance Accountability Act of 2012.”

Acts 2013, ch. 427, § 8 provided that notwithstanding any other provision of law to the contrary, any provision of the act shall not apply to the extent that compliance with such provision would violate federal law or cause a loss of federal funding.

Acts 2016, ch. 1063, § 4 provided that the act, which amended this section, shall apply to unemployment claims filed on or after July 1, 2016.

Amendments. The 2016 amendment rewrote (a)(1)(A), which read: “ (1)(A) If the administrator finds that the claimant has left the claimant's most recent work voluntarily without good cause connected with the claimant's work. The disqualification shall be for the duration of the ensuing period of unemployment and until the claimant has secured subsequent employment covered by an unemployment compensation law of this state, another state, or the United States, and was paid wages by the subsequent employment ten (10) times the claimant's weekly benefit amount. No disqualification shall be made under this section, however, if the claimant presents evidence supported by competent medical proof that the claimant was forced to leave the claimant's most recent work because the claimant was sick or disabled and notified the claimant's employer of that fact as soon as it was reasonably practical to do so, and returned to that employer and offered to work as soon as the claimant was again able to work, and to perform the claimant's former duties. Pregnancy shall be considered in the same way as any other illness or disability within the meaning of this subsection (a). At the expiration of the period, if the claimant is not reemployed, the claimant shall be entitled to unemployment benefits under this chapter, if otherwise eligible under this chapter. Nor shall this disqualification apply to a claimant who left the claimant's work in good faith to join the armed forces of the United States;”.

Effective Dates. Acts 2016, ch. 1063, § 4. July 1, 2016.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Unemployment Compensation, §§ 6-8.

Law Reviews.

Ain't Misbehavin', Or What is Misconduct in Tennessee Under Employment Security Law? (Ellen H. Pollack), 22 No. 5, Tenn. B.J. 17 (1986).

When Telling the Truth Costs You Your Job: Tennessee's Employment-at-Will Doctrine and the Need for Change (Chad E. Wallace), 39 No. 4 Tenn. B.J. 18 (2003).

Attorney General Opinions. Voluntary quitting work with good cause, OAG 95-018 (3/27/95).

NOTES TO DECISIONS

1. Unemployment by Reason of Misconduct.

The general assembly intended that workers unemployed by reason of misconduct in connection with their obligations to their employer should not, merely because of such misconduct, be disqualified from receiving unemployment benefit payments. Milne Chair Co. v. Hake, 190 Tenn. 395, 230 S.W.2d 393, 1950 Tenn. LEXIS 499 (1950).

The general assembly intended to vest discretion in the commissioner to determine what constitutes misconduct based upon the facts in each case. Wallace v. Stewart, 559 S.W.2d 647, 1977 Tenn. LEXIS 650 (Tenn. 1977).

Excessive absenteeism may be the basis of a finding of misconduct. Wallace v. Stewart, 559 S.W.2d 647, 1977 Tenn. LEXIS 650 (Tenn. 1977).

The disqualification because of misconduct connected with an employee's work is penal in nature and as such will be construed liberally in favor of the employee, and the employer has the burden of proving a disqualification. Weaver v. Wallace, 565 S.W.2d 867, 1978 Tenn. LEXIS 551 (Tenn. 1978).

An employee's wrongdoing committed prior to his employment with his last employer cannot constitute misconduct connected with his work for that employer. Weaver v. Wallace, 565 S.W.2d 867, 1978 Tenn. LEXIS 551 (Tenn. 1978).

Unless an employee's wrongdoing violates a duty owed to his employer, as distinguished from society in general, it cannot amount to misconduct connected with his work so as to disqualify him to receive unemployment insurance benefits, although it may fully justify his discharge from employment; accordingly, where the only evidence in the record concerning the circumstances of a discharged employee's arrest and conviction for possession of marijuana related to the discovery of the marijuana in his residence, misconduct connected with his work was not shown. Weaver v. Wallace, 565 S.W.2d 867, 1978 Tenn. LEXIS 551 (Tenn. 1978).

Where evidence showed that claimant had threatened his supervisor and had failed, after written warnings, to report for work on scheduled overtime shifts without notifying his supervisor, that was material evidence of substantial disregard for his employer's interest and amounted to misconduct connected with his work within the meaning of subdivision (2)(B) now (a)(2)). Irvin v. Binkley, 577 S.W.2d 677, 1978 Tenn. App. LEXIS 276 (Tenn. Ct. App. 1978).

Fault is a consideration in determining whether an employee is guilty of misconduct. McClellan v. Bible, 699 S.W.2d 555, 1985 Tenn. LEXIS 566 (Tenn. 1985).

Excessive absenteeism caused by alcoholism constitutes misconduct warranting the denial of unemployment benefits. Miotke v. Kelley, 713 S.W.2d 910, 1986 Tenn. App. LEXIS 2942 (Tenn. Ct. App. 1986).

Simple misconduct must at least be intentional conduct that materially breaches a duty the employee owes to the employer. Armstrong v. Neel, 725 S.W.2d 953, 1986 Tenn. App. LEXIS 3446 (Tenn. Ct. App. 1986).

Burden of proving a disqualification is on the employer; in order to establish a disqualification there must be shown a material breach of some duty that the employee owes to the employer. Cherry v. Suburban Mfg. Co., 745 S.W.2d 273, 1988 Tenn. LEXIS 2, 78 A.L.R.4th 171 (Tenn. 1988), rehearing denied, — S.W.2d —, 1988 Tenn. LEXIS 29 (Tenn. Feb. 16, 1988).

The evidence constituted material and substantial evidence that claimant possessed marijuana and, therefore, was discharged for misconduct. Roberts v. Traughber, 844 S.W.2d 192, 1991 Tenn. App. LEXIS 829 (Tenn. Ct. App. 1991).

Although an unemployment benefits claimant's off duty drug activities could not be considered work-related misconduct under T.C.A. § 50-7-303(a)(2), he was disqualified from receiving unemployment benefits because he violated his employer's policy that required him to notify the employer of his drug conviction within 3 days. Hale v. Neeley, 335 S.W.3d 599, 2010 Tenn. App. LEXIS 723 (Tenn. Ct. App. Nov. 19, 2010), appeal denied, Hale v. Neely, — S.W.3d —, 2011 Tenn. LEXIS 436 (Tenn. Apr. 13, 2011).

Substantial evidence supported the finding that a claimant engaged in work-related misconduct and disqualified from receiving unemployment benefits because the claimant used a racial epithet during a confrontation with a co-worker and continued to use the epithet during a meeting with a supervisor and human resources representative. Blackmon v. Eaton Elec., — S.W.3d —, 2013 Tenn. App. LEXIS 335 (Tenn. Ct. App. May 17, 2013).

Misconduct is a disqualifying event. Newman v. Davis, — S.W.3d —, 2014 Tenn. App. LEXIS 58 (Tenn. Ct. App. Feb. 7, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 499 (Tenn. June 20, 2014).

Although the misconduct definitions were not in place at the time of the initial determination that the employee was disqualified from receiving unemployment benefits based on misconduct, case law decided prior to the statutory amendment indicated that an employee who violated a known company policy was considered guilty of work-related misconduct. Newman v. Davis, — S.W.3d —, 2014 Tenn. App. LEXIS 58 (Tenn. Ct. App. Feb. 7, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 499 (Tenn. June 20, 2014).

There was substantial evidence to support the finding that the employee was in violation of the employer's leave policy; the employee failed to provide a physician's statement verifying her disability every 20 days thereafter, and while a violation of an employer's rules could be excused if the employee did not know of the requirements, that was not the case here, she did not have a justifiable reason for her extensive absence from work, and the finding of misconduct was supported. Newman v. Davis, — S.W.3d —, 2014 Tenn. App. LEXIS 58 (Tenn. Ct. App. Feb. 7, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 499 (Tenn. June 20, 2014).

Employee's claim for unemployment compensation was properly denied because there was substantial and material evidence in the record to establish that the employee was discharged for work-related misconduct; there was substantial and material evidence to support the finding that a coworker did not approach the employee in a threatening manner and that the employee was the aggressor in the situation. Sanders v. Comm'r of Dep't of Labor & Workforce Dev., — S.W.3d —, 2015 Tenn. App. LEXIS 727 (Tenn. Ct. App. Sept. 8, 2015).

Substantial and material evidence established that an employee was discharged for work-related misconduct because the Designee for the Commissioner of the Department of Labor and Workforce Development properly found that the employee's statement constituted a threat prohibited by the employer's threatening behavior policy; the colloquial meaning of the phrase “take it outside,” when uttered in the heat of a dispute, could connote an invitation for a physical confrontation. Sanders v. Comm'r of Dep't of Labor & Workforce Dev., — S.W.3d —, 2015 Tenn. App. LEXIS 727 (Tenn. Ct. App. Sept. 8, 2015).

Because an employee knew of the employer's threatening behavior policy, her failure to abide by the policy constituted substantial and material evidence to support the finding of the Designee for the Commissioner of the Department of Labor and Workforce Development that the employee committed work-related misconduct. Sanders v. Comm'r of Dep't of Labor & Workforce Dev., — S.W.3d —, 2015 Tenn. App. LEXIS 727 (Tenn. Ct. App. Sept. 8, 2015).

General provision providing for the definition of misconduct must give way to the more specific provision providing for the exemptions. Pavement Restorations Inc. v. Ralls, — S.W.3d —, 2017 Tenn. App. LEXIS 111 (Tenn. Ct. App. Feb. 17, 2017).

In order to disqualify the employee from unemployment benefits, the fact-finder had to determine that his conduct qualified as misconduct under the statute and that his conduct was not nevertheless exempt from the definition of misconduct. Pavement Restorations Inc. v. Ralls, — S.W.3d —, 2017 Tenn. App. LEXIS 111 (Tenn. Ct. App. Feb. 17, 2017).

2. —Refusal to Obtain Treatment.

Refusal of employee to obtain appropriate medical and rehabilitative treatment for his drug abuse problem was “misconduct connected with his work” so as to disqualify him for unemployment compensation benefits. Cherry v. Suburban Mfg. Co., 745 S.W.2d 273, 1988 Tenn. LEXIS 2, 78 A.L.R.4th 171 (Tenn. 1988), rehearing denied, — S.W.2d —, 1988 Tenn. LEXIS 29 (Tenn. Feb. 16, 1988).

3. —Justifiable Discharge.

A justifiable discharge is not, in and of itself, “misconduct connected with his work” so as to disqualify an employee under T.C.A. § 50-7-303. Cherry v. Suburban Mfg. Co., 745 S.W.2d 273, 1988 Tenn. LEXIS 2, 78 A.L.R.4th 171 (Tenn. 1988), rehearing denied, — S.W.2d —, 1988 Tenn. LEXIS 29 (Tenn. Feb. 16, 1988).

Even though claimant missed work or was late for work without cause, authorization, or permission only four days in the eight months of her employment, the whole of the facts revealed that her actions exhibited a wanton, careless, negligent disregard for the interest of the employer, disqualifying her from receiving benefits. Simmons v. Culpepper, 937 S.W.2d 938, 1996 Tenn. App. LEXIS 547 (Tenn. Ct. App. 1996).

Trial court properly upheld the denial of an employee's claim for unemployment benefits because her refusal to take an alcohol test constituted work-related misconduct where she was aware of the employer's policies on the use of intoxicants, had received warnings in the past related to those policies, and three other employees perceived that the employee smelled of alcohol when she arrived for work. Sparkman v. Phillips, — S.W.3d —, 2014 Tenn. App. LEXIS 399 (Tenn. Ct. App. July 7, 2014).

4. Misconduct Not Found As Reason for Unemployment.

An employee can be fired for excessive absenteeism due to illnesses and injuries, but absences due to illnesses and job injuries do not constitute misconduct under the Employment Security Law, T.C.A. § 50-7-101 et seq. Simmons v. Traughber, 791 S.W.2d 21, 1990 Tenn. LEXIS 213 (Tenn. 1990).

Refusal by employee to report for work at site without proper sanitary facilities did not constitute misconduct connected with his work so as to disqualify employee from receiving unemployment compensation benefits. Trice v. Traughber, 797 S.W.2d 886, 1990 Tenn. LEXIS 356 (Tenn. 1990) (decided under prior law).

Employee was not discharged from her employment as a cash and deposit clerk in the accounting department for misconduct. The employee was terminated while on medical leave and, therefore, was entitled to unemployment benefits. Imperial Foods v. McQuaid, 874 S.W.2d 54, 1993 Tenn. App. LEXIS 711 (Tenn. Ct. App. 1993).

Employee lit a cigarette and smoked in the company truck, constituting a violation of the employer's rule, but substantial evidence supported the finding that the employee's action was exempt from the definition of misconduct and thus he was qualified for unemployment compensation; the employee unintentionally lit a cigarette when he woke up from a nap but almost immediately threw it out, nothing showed he had violated the same rule in the past or that he had been given a warning but deliberately ignored it, and the violation of the no-smoking policy was therefore an isolated incident. Pavement Restorations Inc. v. Ralls, — S.W.3d —, 2017 Tenn. App. LEXIS 111 (Tenn. Ct. App. Feb. 17, 2017).

In an award of unemployment benefits, the decision of the designee of the Commissioner of Tennessee Department of Labor & Workforce Development that the former employee's termination was not the result of misconduct was supported by material evidence and was not arbitrary or capricious because, although he signed forms associated with two Department of Transportation (DOT) physicals containing inaccurate information, he informed the medical professionals of his vision problems, submitted to and passed vision tests administered during the DOT physicals, and had not been informed by any medical professionals that his vision problems prevented him from operating a commercial vehicle; and the former employer was informed of his vision problems. Hampton Crane Serv. v. Phillips, — S.W.3d —, 2018 Tenn. App. LEXIS 498 (Tenn. Ct. App. Aug. 27, 2018).

Former employee was entitled to unemployment benefits because, although her conduct constituted misconduct as the employee was aware of the employer's information system policy and that the employee violated the policy by using the employer's instant message system to communicate with coworkers for personal purposes, the employee's violation of the policy did not provide grounds for termination based on misconduct as it was due to good faith errors in judgment or discretion which was expressly excluded from the definition of misconduct. Tenn. Credit Union v. Powell, — S.W.3d —, 2019 Tenn. App. LEXIS 304 (Tenn. Ct. App. June 19, 2019).

4.5. Constructive Discharge.

In an administrative proceeding in which a claimant resigns and seeks unemployment benefits, the focus is on whether the claimant can show under the unemployment benefit statutes that he quit for good cause connected with the claimant's work; thus, the legal theories for two types of cases, civil cases alleging discrimination and an administrative proceeding for unemployment benefits, have different elements and standards, and the doctrine of constructive discharge is inapplicable in an administrative unemployment compensation proceeding. Practical Ventures, LLC v. Neely, — S.W.3d —, 2014 Tenn. App. LEXIS 348 (Tenn. Ct. App. June 19, 2014).

5. Unemployment Due to Labor Dispute.

The relationship of employer-employee is not a prerequisite to the existence of a labor dispute in the application of this section. Milne Chair Co. v. Hake, 190 Tenn. 395, 230 S.W.2d 393, 1950 Tenn. LEXIS 499 (1950); Bailey v. Tennessee Dep't of Employment Sec., 212 Tenn. 422, 370 S.W.2d 492, 1963 Tenn. LEXIS 437 (1963).

The concerted activities of 157 employees in walking off the job and in picketing the plant in protest over the suspension of a fellow union member was a labor dispute. Milne Chair Co. v. Hake, 190 Tenn. 395, 230 S.W.2d 393, 1950 Tenn. LEXIS 499 (1950).

In determination of entitlement to unemployment benefits, question of whether labor dispute was fault of employer or employees and their bargaining agent is immaterial. Davis v. Aluminum Co. of America, 204 Tenn. 135, 316 S.W.2d 24, 1958 Tenn. LEXIS 252 (1958).

Where employees went out on strike, which necessitated cessation of all operations, agreement was reached on all disputed matters in about two weeks, and operation insofar as possible resumed, but cessation of work had unavoidably damaged 11 lines of aluminum smelting pots, workers idled by necessary repair of pots were necessarily unemployed pending such repair and not disqualified from unemployment benefits under this act providing for disqualification when unemployment is due to labor dispute that is in “active progress,” such period not including the time required for repair of the lines. Davis v. Aluminum Co. of America, 204 Tenn. 135, 316 S.W.2d 24, 1958 Tenn. LEXIS 252 (1958).

In determining whether unemployment resulted from labor dispute no inquiry is made into the merits of the dispute. Bailey v. Tennessee Dep't of Employment Sec., 212 Tenn. 422, 370 S.W.2d 492, 1963 Tenn. LEXIS 437 (1963).

If from the facts of the record reasonable minds could differ as to whether or not the cause of the unemployment is a labor dispute, the findings of the board in that regard are controlling. Bailey v. Tennessee Dep't of Employment Sec., 212 Tenn. 422, 370 S.W.2d 492, 1963 Tenn. LEXIS 437 (1963).

Where striking employees are permanently replaced, the relationship of employer and employee is severed. Yearwood v. Industrial Dev. Bd., 648 S.W.2d 944, 1982 Tenn. App. LEXIS 448 (Tenn. Ct. App. 1982).

6. —Members of Grade or Class of Workers Participating in Dispute.

Status of nonunion workers as members of “grade or class” of workers participating in dispute was determined by fact that both union and nonunion workers were represented by same bargaining agent. Anderson v. Aluminum Co. of America, 193 Tenn. 106, 241 S.W.2d 932, 1951 Tenn. LEXIS 329 (1951).

Although unemployed as result of union strike that they disapproved, nonunion workers were denied unemployment benefits under provision of Employment Security Act disqualifying those who were members of grade or class of workers participating in dispute. Anderson v. Aluminum Co. of America, 193 Tenn. 106, 241 S.W.2d 932, 1951 Tenn. LEXIS 329 (1951).

The language of this section: “…of which immediately before the commencement of the labor dispute, there were members employed at the premises at which the labor dispute occurs,” can only be treated as surplusage. The residuum: “He does not belong to a grade or class of workers … any of whom are participating in the dispute” is the construction that should be adopted. Anderson v. Aluminum Co. of America, 193 Tenn. 106, 241 S.W.2d 932, 1951 Tenn. LEXIS 329 (1951).

The words “grade” or “class” as used in this section means a group more or less acting in concert, as where the striking member acts with the sanction and in benefit of his associates. Austin v. Jennings, 211 Tenn. 485, 365 S.W.2d 886, 1963 Tenn. LEXIS 370 (1963).

The grade or class referred to in subsection D (now subdivision (a)(4)(B)) includes both union and nonunion employees represented by an authorized bargaining agent. Austin v. Jennings, 211 Tenn. 485, 365 S.W.2d 886, 1963 Tenn. LEXIS 370 (1963).

Petitioner who had abandoned strike but who belonged to a grade or class some of whom were participating in the labor dispute was not entitled to compensation. Austin v. Jennings, 211 Tenn. 485, 365 S.W.2d 886, 1963 Tenn. LEXIS 370 (1963).

7. — —Burden of Proof.

Where employee's unemployment is due to a labor dispute in active process the burden is upon him to bring himself within the exceptions and to prove to the satisfaction of the commissioner that he is not himself participating in the dispute and does not belong to a group any of whom are participating in the dispute. Austin v. Jennings, 211 Tenn. 485, 365 S.W.2d 886, 1963 Tenn. LEXIS 370 (1963).

8. —Dismissal of Employees Involved in Labor Dispute.

Even though the unemployment of employees who walked out to protest the suspension of a fellow union member was originally due to a labor dispute, evidence that the employer refused to permit the employees to resume work was sufficient to support the board of review's finding that the unemployment was ultimately due to their dismissal rather than to a labor dispute. Milne Chair Co. v. Hake, 190 Tenn. 395, 230 S.W.2d 393, 1950 Tenn. LEXIS 499 (1950).

9. —Termination of Labor Dispute.

Persons whose unemployment is originally caused by a labor dispute, and are thereby subject to the disqualification provisions of the Employment Security Law, T.C.A. § 50-7-101 et seq., dealing with labor disputes, nevertheless are entitled to employment compensation benefits as soon as the labor dispute has been terminated. Special Products Co. v. Jennings, 209 Tenn. 316, 353 S.W.2d 561, 1961 Tenn. LEXIS 380 (1961); Bailey v. Tennessee Dep't of Employment Sec., 212 Tenn. 422, 370 S.W.2d 492, 1963 Tenn. LEXIS 437 (1963).

Where employees, after being on strike, discontinued strike and applied for reinstatement in their jobs, and reinstatement was refused because their positions were filled by others, they were not to be subject to further disqualification on the ground that they had left work without good cause. Special Products Co. v. Jennings, 209 Tenn. 316, 353 S.W.2d 561, 1961 Tenn. LEXIS 380 (1961).

Provision in master contract that effective date of contract would be when strike terminated at all plants did not amount to an invalid agreement to waive unemployment benefits as applied to employees of automobile glass plant where employer was a large manufacturing concern with plants located throughout the country with operations so complex and integrated that glass plant could not be considered a separate factory. Ford Motor Co. v. Burson, 225 Tenn. 486, 470 S.W.2d 941, 1971 Tenn. LEXIS 351 (1971).

Where employees of large manufacturing corporation with numerous plants throughout the country were bound by master contract that provided that effective date of collective bargaining agreement was the date on which strike was terminated at all locations, employees were not entitled to unemployment compensation for period between time when national contract and local contract at that particular plant were ratified and the time when local issues were settled at all plants and all local contracts ratified. Ford Motor Co. v. Burson, 225 Tenn. 486, 470 S.W.2d 941, 1971 Tenn. LEXIS 351 (1971).

10. Unemployment Due to Illness or Disability.

Under provision of this section providing for disqualification on finding that employee left his work “without good cause connected with his work,” there must be a causal connection between the employment and the illness or disability to entitle employee to unemployment insurance where he left for such reason. Cawthron v. Scott, 217 Tenn. 668, 400 S.W.2d 240, 1966 Tenn. LEXIS 620 (1966); Cooper v. Burson, 221 Tenn. 621, 429 S.W.2d 424, 1968 Tenn. LEXIS 490 (1968).

Where employee leaves employment because of disability or illness there must be a showing of causal connection between the disability or illness and the employment in order for the termination of the employment to be deemed involuntary. Thach v. Scott, 219 Tenn. 390, 410 S.W.2d 173, 1966 Tenn. LEXIS 538 (1966); Cooper v. Burson, 221 Tenn. 621, 429 S.W.2d 424, 1968 Tenn. LEXIS 490 (1968).

Fact that worker left her employment because air conditioning aggravated her pre-existing bronchial condition would not sustain a finding that termination of employment was either involuntary or with good cause connected with her employment. Cooper v. Burson, 221 Tenn. 621, 429 S.W.2d 424, 1968 Tenn. LEXIS 490 (1968).

Where substantial and material evidence supported the finding of claimant's disability to return to work, she was disqualified to receive unemployment benefits. Sliger v. Stokes, 953 S.W.2d 208, 1997 Tenn. App. LEXIS 234 (Tenn. Ct. App. 1997).

In order to qualify for unemployment benefits, the worker had to provide competent medical proof that she was forced to leave her most recent job because she was sick or disabled, that she notified the employer as soon as reasonably practical, and that she returned and offered to work as soon as she was able to perform her former job duties without restrictions. Newman v. Davis, — S.W.3d —, 2014 Tenn. App. LEXIS 58 (Tenn. Ct. App. Feb. 7, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 499 (Tenn. June 20, 2014).

There was substantial evidence to support the decision that the employee was not qualified for unemployment benefits, as she failed to return to work when released by one doctor, and whether she disagreed with her doctors' opinions was not germane to the inquiry; the employee clearly did not qualify for benefits either for failing to return to work within a reasonable time after being released and able to perform her job functions, or because she was unable to perform her duties without restriction. Newman v. Davis, — S.W.3d —, 2014 Tenn. App. LEXIS 58 (Tenn. Ct. App. Feb. 7, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 499 (Tenn. June 20, 2014).

Employee did not testify that she told the manager that scheduling issues related to her daughter's illness would force her to resign, and if she claimed she quit for good cause, the evidence was insufficient to support that finding. Practical Ventures, LLC v. Neely, — S.W.3d —, 2014 Tenn. App. LEXIS 348 (Tenn. Ct. App. June 19, 2014).

Board of Review erred in finding that an employee was ineligible for unemployment compensation benefits because the employee was terminated before she was released to resume work without restrictions, the employee's claim did not fall within a specific ground of disqualification from unemployment benefits, the employee did not voluntarily quit her employment, and her use of approved medical leave was not tantamount to a voluntary quit of employment. Phillips v. Phillips, — S.W.3d —, 2015 Tenn. App. LEXIS 823 (Tenn. Ct. App. Oct. 8, 2015).

11. Voluntary Termination of Employment.

Where mechanic's employment was terminated because double curvature of the spine prevented him from performing his duties and such disability was not attributable to or connected with his employment, termination of employment was voluntary rather than involuntary and claimant was disqualified from benefits under paragraph A (now subdivision (a)(1)) relating to voluntary termination of employment. Thach v. Scott, 219 Tenn. 390, 410 S.W.2d 173, 1966 Tenn. LEXIS 538 (1966).

Where employee chose to accept employment, knowing of the provisions for annual, sick and special leave, and did not seek any understanding with her employer (a state agency) at the time of her employment regarding her need for leave on special days of rest for religious purposes, and, furthermore, she chose to use up all of her accumulated annual and sick leave as well as three additional days of special leave before she decided unilaterally to leave her job behind in order to attend her days of rest in another state after her employer refused to grant her additional special leave, and left without any notification to her employer that she would be absent, denial of unemployment compensation benefits would be upheld. De Priest v. Bible, 653 S.W.2d 721, 1980 Tenn. App. LEXIS 427 (Tenn. Ct. App. 1980), cert. denied, 450 U.S. 903, 101 S. Ct. 1338, 67 L. Ed. 2d 327, 1981 U.S. LEXIS 716 (1981).

An employee's voluntary decision to leave his employment because of rumors that he would soon be terminated and that he would lose his compensation benefits was not based upon good cause. Frogge v. Davenport, 906 S.W.2d 920, 1995 Tenn. App. LEXIS 247 (Tenn. Ct. App. 1995).

Employee's voluntary decision to extend a leave of absence, knowing that his request for additional leave would not be approved, was sufficient for a determination that he voluntarily left his employment. McPherson v. Stokes, 954 S.W.2d 749, 1997 Tenn. App. LEXIS 242 (Tenn. Ct. App. 1997).

Where petitioner voluntarily resigned, petitioner's claim for unemployment benefits was properly denied on grounds of the lack of evidence that petitioner had recovered from her disability and had offered to return to work; when petitioner was able to comply with the provisions of the statute, her situation would then be mature for reapplication for unemployment compensation. Darden v. York, 958 S.W.2d 768, 1997 Tenn. App. LEXIS 274 (Tenn. Ct. App. 1997).

Good cause existed for appellant to voluntarily quit, as appellant testified to an explosive event in which appellant's supervisor used very offensive language, screamed at appellant in front of other employees, and followed appellant to the front of a warehouse screaming and hollering all the way; appellant's testimony about the incident was totally unrebutted. Ensey v. Davis, — S.W.3d —, 2013 Tenn. App. LEXIS 250 (Tenn. Ct. App. Apr. 10, 2013).

Substantial evidence supported a decision that an unemployment compensation claimant was disqualified because: (1) the claimant voluntarily left the claimant's job; and (2) the claimant's speculation that the claimant was going to be fired, even though later confirmed, was not good cause to quit. Barner v. Phillips, — S.W.3d —, 2014 Tenn. App. LEXIS 265 (Tenn. Ct. App. May 5, 2014).

Acts did not support a finding that the manager discharged the employee during their conversation, and instead the manager's acts were consistent with suspension; the facts further supported a holding that the employee voluntarily ended her employment, as she told the manager that his suspension did not concern her because she was planning on resigning the next week anyway, which could have been viewed as voicing a specific intent to quit, plus she made no effort to cooperate with the investigation and did not return work keys as requested. Practical Ventures, LLC v. Neely, — S.W.3d —, 2014 Tenn. App. LEXIS 348 (Tenn. Ct. App. June 19, 2014).

As the facts supported a finding that she voluntarily terminated her employment, the holding that she was eligible for unemployment compensation benefits was not supported by substantial and material evidence and was arbitrary. Practical Ventures, LLC v. Neely, — S.W.3d —, 2014 Tenn. App. LEXIS 348 (Tenn. Ct. App. June 19, 2014).

As the facts were essentially undisputed, the court addressed the issue of whether the employee voluntarily quit as a question of law. Practical Ventures, LLC v. Neely, — S.W.3d —, 2014 Tenn. App. LEXIS 348 (Tenn. Ct. App. June 19, 2014).

12. Wages in Lieu of Notice.

Severance pay equal to weekly wages for varying lengths of time based on period of service that was paid under labor contract when company permanently closed its plant did not constitute wages in lieu of notice so as to constitute disqualification for benefits where employees received a month's notice and payment was in accordance with provisions of the contract. Balding v. Tennessee Dep't of Employment Sec., 212 Tenn. 517, 370 S.W.2d 546, 1963 Tenn. LEXIS 445 (1963).

13. Suitable Work — Failure to Apply for or Accept.

The statute was not intended as a guarantee that a claimant might obtain benefits unless he was offered employment at precisely the same level of skill as that at which he was last employed but only that the employment be such that the claimant is reasonably fitted therefor by training and experience. Aluminum Co. of America v. Walker, 207 Tenn. 417, 340 S.W.2d 898, 1960 Tenn. LEXIS 474 (1960).

No disqualification for unemployment compensation benefits exists where the employee presents evidence supported by competent medical proof to the effect that he was forced to leave his most recent work because he was sick or disabled and so notified his employer as soon as it was reasonably practicable to do so and returned to his employer and offered himself for work as soon as he was again able to work and to perform his former duties. Guffey v. Scott, 217 Tenn. 707, 400 S.W.2d 705, 1966 Tenn. LEXIS 624 (1966).

Where female employee left employment in accordance with company rule that did not permit work past seventh month of pregnancy but did not present herself for work as soon as she was able to work and perform her duties after birth of her child, employee was disqualified from unemployment compensation. Guffey v. Scott, 217 Tenn. 707, 400 S.W.2d 705, 1966 Tenn. LEXIS 624 (1966).

An employee who refuses without good cause to accept suitable work when offered is not available for work. Aladdin Industries, Inc. v. Scott, 219 Tenn. 71, 407 S.W.2d 161, 1966 Tenn. LEXIS 507 (1966).

The court is bound by findings of fact that suitable work was refused without good cause if there is material evidence supporting such finding. Aladdin Industries, Inc. v. Scott, 219 Tenn. 71, 407 S.W.2d 161, 1966 Tenn. LEXIS 507 (1966).

The issue of whether claimant is available for work and whether work offered the claimant is or is not suitable are issues to be construed together under § 50-7-302 and this section. Aladdin Industries, Inc. v. Scott, 219 Tenn. 71, 407 S.W.2d 161, 1966 Tenn. LEXIS 507 (1966).

The requirement is mandatory that employee who leaves work because of sickness or disability shall promptly present himself to employer for work when cause of termination is arrested. Cooper v. Burson, 221 Tenn. 621, 429 S.W.2d 424, 1968 Tenn. LEXIS 490 (1968).

Claimants are not permitted to draw compensation until their former jobs are again available when they refuse to accept reasonable, although less lucrative, alternatives. Wallace v. Sullivan, 561 S.W.2d 452, 1978 Tenn. LEXIS 581 (Tenn. 1978).

Refusal of a laid-off employee to accept a position at which he was experienced, although it paid $20 a week less than the position from which he was laid-off, was refusal of reasonable alternative employment. Wallace v. Sullivan, 561 S.W.2d 452, 1978 Tenn. LEXIS 581 (Tenn. 1978).

Good cause to refuse work that is otherwise suitable does not exist merely because the employee's acceptance of the offered position will result in the discharge of a fellow employee with less seniority. Wallace v. Sullivan, 561 S.W.2d 452, 1978 Tenn. LEXIS 581 (Tenn. 1978).

Evidence was sufficient to show that claimant failed to offer herself for work as soon as she was again able, which failure disqualified her from receiving benefits under subdivision (1) (now T.C.A. § 50-7-303(a)(3)). Sabastian v. Bible, 649 S.W.2d 593, 1983 Tenn. App. LEXIS 553 (Tenn. Ct. App. 1983).

14. Findings of Department — Effect.

In order to sustain its application of the statute, the department's construction need not be the only reasonable one or the only result that could have been reached had the question arisen in the first instance in judicial proceedings. Thach v. Scott, 219 Tenn. 390, 410 S.W.2d 173, 1966 Tenn. LEXIS 538 (1966).

Whether an employee has been discharged for misconduct connected with his work is to be determined by the department of employment security (now department of labor and workforce development) applying state law. Perryman v. Bible, 653 S.W.2d 424, 1983 Tenn. App. LEXIS 547 (Tenn. Ct. App. 1983).

15. Arbitrator's Decision — Effect.

Arbitrator's decision that an employee was wrongfully discharged is not binding on the state department of employment security (now department of labor and workforce development), as the payment or nonpayment of unemployment compensation cannot be controlled by an agreement between the employer and the employee. Perryman v. Bible, 653 S.W.2d 424, 1983 Tenn. App. LEXIS 547 (Tenn. Ct. App. 1983).

16. Standard of Proof.

The clear and convincing standard of proof was inapplicable in proceedings where a party was found to be ineligible for benefits because of her termination from employment for gross misconduct. Jackson v. Bible, 611 S.W.2d 588, 1980 Tenn. App. LEXIS 404 (Tenn. Ct. App. 1980).

Collateral References.

Actions of harassment or other mistreatment by employer or supervisor as “good cause” justifying abandonment of employment. 76 A.L.R.3d 1089.

Alien's right to unemployment compensation benefits. 87 A.L.R.3d 694.

“Availability for work” under unemployment compensation statute of claimant who undertakes to restrict willingness to work to certain hours, types of work, or conditions, not usual and customary in the occupation, trade or industry. 25 A.L.R.2d 1077, 35 A.L.R.3d 1129, 88 A.L.R.3d 1353, 12 A.L.R.4th 611, 2 A.L.R.5th 475.

Circumstances of abandonment of employment, availability for work, or nature of excuse for refusing reemployment, as affecting right to social security or unemployment compensation. 158 A.L.R. 396, 165 A.L.R. 1382.

Construction and application of provisions of unemployment compensation acts regarding disqualification for benefits because of labor disputes or strikes. 28 A.L.R.2d 287, 60 A.L.R.3d 11, 61 A.L.R.3d 693, 61 A.L.R.3d 746, 62 A.L.R.3d 314, 62 A.L.R.3d 380, 62 A.L.R.3d 437, 63 A.L.R.3d 88.

Construction of phrase “stoppage of work” in statutory provision denying unemployment compensation benefits during stoppage resulting from labor dispute. 61 A.L.R.3d 693.

Discharge for absenteeism or tardiness as affecting right to unemployment compensation. 58 A.L.R.3d 674.

Disqualification for unemployment benefits, power of administrative officer to limit period of. 155 A.L.R. 411.

Eligibility as affected by claimant's insistence upon conditions not common or customary to particular employment. 88 A.L.R.3d 1353.

Eligibility as affected by claimant's refusal to comply with requirement as to dress, grooming, or hygiene. 88 A.L.R.3d 150.

Eligibility as affected by mental, nervous, or psychological disorder. 1 A.L.R.4th 802.

Eligibility for unemployment compensation of employee who retires voluntarily. 75 A.L.R.5th 339.

General principles pertaining to statutory disqualification for unemployment compensation benefits because of strike or labor dispute. 60 A.L.R.3d 11, 63 A.L.R.3d 88.

Labor disputes or strikes, construction and application of provisions of unemployment compensation acts regarding disqualification for benefits because of. 28 A.L.R.2d 287, 60 A.L.R.3d 11, 61 A.L.R.3d 693, 61 A.L.R.3d 746, 62 A.L.R.3d 314, 62 A.L.R.3d 380, 62 A.L.R.3d 437, 63 A.L.R.3d 88.

Leaving employment, or unavailability for particular job or duties, because of sickness or disability, as affecting right to unemployment compensation. ; 68 A.L.R.5th 13.

Leaving or refusing employment because of allergic reaction as affecting right to unemployment compensation. 12 A.L.R.4th 629.

Leaving or refusing employment for religious reasons as barring unemployment compensation. 12 A.L.R.4th 611.

“Misconduct,” what amounts to, precluding benefits under unemployment compensation act to discharged employee. 146 A.L.R. 243.

Refusal of nonstriking employee to cross picket line as justifying denial of unemployment compensation benefits. 62 A.L.R.3d 380.

Refusal to accept employment at compensation less than that of previous job. 94 A.L.R.3d 63.

Right to unemployment compensation as affected by receipt of pension. 56 A.L.R.3d 520, 56 A.L.R.3d 552.

Right to unemployment compensation as affected by receipt of Social Security benefits. 56 A.L.R.3d 552.

Right to unemployment compensation of claimant who refuses non-union employment. 56 A.L.R.2d 1015.

Right to unemployment compensation of one who quit because of pay reduction. 95 A.L.R.3d 449.

Right to unemployment compensation of retired employee receiving pension or the like. 56 A.L.R.3d 520, 56 A.L.R.3d 552.

Termination of disqualification due to labor dispute for unemployment benefit, in case of other employment which is itself terminated. 28 A.L.R.2d 287, 60 A.L.R.3d 11, 61 A.L.R.3d 693, 61 A.L.R.3d 746, 62 A.L.R.3d 314, 62 A.L.R.3d 380, 62 A.L.R.3d 437, 63 A.L.R.3d 88.

Termination of employment because of pregnancy as affecting right to employment compensation. 51 A.L.R.3d 254.

Unemployment compensation: application of labor dispute disqualification for benefits to locked out employee. 62 A.L.R.3d 437.

Unemployment compensation as affected by employee's or employer's change of location. 13 A.L.R.2d 874, 21 A.L.R.4th 317.

Unemployment Compensation as Affected by Employer's Relocation or Transfer of Employee from Place of Employment. 80 A.L.R.6th 635.

Unemployment compensation: eligibility as affected by claimant's refusal to work at particular times or on particular shifts. 35 A.L.R.3d 1129, 12 A.L.R.4th 611, 2 A.L.R.5th 475.

Unemployment compensation: eligibility of employee laid off according to employer's mandatory retirement plan. 50 A.L.R.3d 880.

Unemployment compensation: eligibility of participants in sympathy strike or slowdown. 61 A.L.R.3d 746.

Unemployment compensation: labor dispute disqualification as applicable to striking employee who is laid off subsequent employment during strike period. 61 A.L.R.3d 766.

Unemployment compensation: leaving employment in pursuit of education or to attend training as affecting right to unemployment compensation. 47 A.L.R.5th 775.

Unemployment compensation: leaving employment in pursuit of other employment as affecting right to unemployment compensation. 46 A.L.R.5th 659.

Unemployment compensation: leaving employment to become self-employed or to go into business for oneself as affecting right to unemployment compensation. 45 A.L.R.5th 715.

Use of employer's e-mail or internet system as misconduct precluding unemployment compensation. 106 A.L.R.5th 297.

What constitutes participation or direct interest in, or financing of, labor dispute or strike within disqualification provisions of unemployment compensation acts. 62 A.L.R.3d 314.

Work-related inefficiency, incompetence, or negligence as “misconduct” barring unemployment compensation. 95 A.L.R.5th 329.

Unemployment compensation: Harassment or other mistreatment by coworker as “good cause” justifying abandonment of employment. 121 A.L.R.5th 467.

50-7-304. Procedure for claims and appeals.

  1. Filing.  Claims for benefits shall be made in accordance with regulations the commissioner prescribes. Each employer shall post and maintain, in places readily accessible to individuals performing services for the employer, printed statements concerning benefit rights, claims for benefits and other matters relating to the administration of this chapter that the commissioner  prescribes by regulation. Each employer shall supply to the individuals copies of the printed statements or other materials relating to claims for benefits when and if the commissioner prescribes by regulation. If the commissioner, as a result of the regulations or otherwise, elects to supply the printed statements or other materials to any employer or employers, it will be done without cost to the employer or employers.
  2. Determinations.
      1. Monetary Determination.  A representative designated by the commissioner, and referred to as the “agency representative,” shall promptly examine the claim and, on the basis of the facts found by the agency representative, shall either determine whether or not the claim is valid monetarily and, if valid, the week with respect to which benefits shall commence, the weekly benefit amount payable and the maximum duration of the benefit. The claimant shall be furnished a copy of the monetary determination showing the amount of wages paid the claimant by each employer during the claimant's base period and the employers by whom the wages were paid, the claimant's benefit year, weekly benefit amount, and the maximum amount of benefits that may be paid to the claimant for unemployment during the benefit year. When a claimant is ineligible due to lack of earnings in the claimant's base period, the monetary determination shall so designate. The claimant shall be allowed ninety (90) days from the mailing date, or in-person delivery of the claimant's monetary determination to the claimant, within which to protest the claimant's monetary determination.
      2. Nonmonetary Determination.  Further, the agency representative shall then review the claim deemed valid monetarily and render a determination on the nonmonetary issues presented, except that in any case in which the payment or denial of benefits will be determined by § 50-7-303(a)(4), the agency representative shall promptly transmit the agency representative's full findings of fact with respect to § 50-7-303(a)(4) to the commissioner, who, on the basis of the evidence submitted and additional evidence that the commissioner may require, shall affirm, modify or set aside the findings of fact and transmit to the agency representative a decision upon the issues involved under § 50-7-303(a)(4), which shall be deemed to be the nonmonetary determination of the agency representative. Any questions or issues involved in any nonmonetary determination may be referred by the commissioner to an unemployment hearing officer, who shall make the unemployment hearing officer's determination with respect to the nonmonetary determination in accordance with the procedure described in subdivision (c)(1). The agency representative shall promptly give written notice to the claimant and all other interested parties of the nonmonetary determination and the reasons for the determination. The nonmonetary determination of the agency representative shall become final, unless an interested party files an appeal from the nonmonetary determination within fifteen (15) calendar days after the date of mailing of the written notification of the nonmonetary determination to the last known address of the party, or within fifteen (15) calendar days after the date the written notification is given to the party, whichever first occurs.
      3. Reconsideration.  At any time within one (1) year from the date of the making of any monetary or nonmonetary determination, the agency representative may, for good cause, reconsider the agency representative's decision, unless an interested party has appealed the monetary or nonmonetary determination and the appeals tribunal has accepted jurisdiction, and shall promptly give written notice to the claimant and all other interested parties of the agency representative's amended monetary or nonmonetary determination and the reason for the amended determination.
    1. Payment — Overpayments — Employer Response to Request for Separation Information — Employer Charges for Overpayment.
      1. Payment.  Benefits shall be paid promptly in accordance with the agency decision or any decision of the appeals tribunal, the commissioner’s designee or a reviewing court.
        1. The payment shall be made upon the issuance of the decision unless and until the decision has been modified or reversed by a subsequent decision. The payment shall be made regardless of the pendency of any application for reconsideration, filing of an appeal, or a petition for judicial review.
        2. If and when the decision has been modified or reversed, benefits shall be paid or denied for weeks of unemployment thereafter in accordance with the modifying or reversing decision.
      2. Overpayments.  If no fraud or misrepresentation on the part of the claimant is involved and a subsequent decision adverse to the claimant results because of the employer's failure to respond as described in subdivision (b)(2)(C) or results because the employer did not appear for a scheduled hearing before the appeals tribunal or the commissioner’s designee, no overpayment will be established and the claimant will not be required to repay any benefits paid prior to the decision. Otherwise, the claimant will be charged with any benefits paid, and shall be liable to have the payments deducted from future benefits payable under this chapter, or shall be liable to repay the commissioner, for deposit in the unemployment compensation fund, a sum equal to the amount so received, and the sum shall be collectible in the manner provided in § 50-7-404(b), for collection of past due premiums.
      3. Employer Response to Request for Separation Information.  If a separation issue exists, the separating employer will be asked to supply information describing circumstances leading to the separation. The information must be received by the agency within seven (7) days from the date the agency request for information is mailed to the separating employer. In the absence of the response, the decision of entitlement will be based on the claimant's statement and other information available to the agency. The separating employer may supply information to the agency prior to a request for information being mailed from the agency if the employer expects a separation issue to arise with regard to an employee.
      4. Employer Charges for Overpayments.  If the decision approving the claim is finally reversed, no premium paying employer's account shall be charged with any benefits so paid. The separating employer who fails to respond as described in subdivision (b)(2)(C) or who did not appear for a scheduled hearing before the appeals tribunal or the commissioner’s designee will be charged with that portion of benefits paid that are attributable to wages paid in its employment during the base period.
      5. Offset expenses and fees.
        1. In addition to any remedies authorized by this chapter, the department may offset any covered unemployment compensation debt, as defined in 26 U.S.C. § 6402, due to the department against any federal income tax refund due to the department's claimant debtor in accordance with § 6402 of the Internal Revenue Code (26 U.S.C. § 6402) and the federal Treasury Offset Program (31 CFR Part 285) or any successor program.
        2. [Deleted by 2015 amendment, effective July 1, 2015.]
        3. Any fee or administrative expense imposed by the United States department of the treasury or the United States department of labor in connection with such offset shall be the responsibility of the debtor.
        4. Following such offset, the amount of credit to which a debtor is entitled shall not exceed the amount of the credit received by the department.
  3. Appeals.
    1. In the case of an appeal that has been filed pursuant to subdivision (b)(1) and that has not been withdrawn, an unemployment hearing officer shall first afford all interested parties reasonable opportunity for a fair hearing, and the unemployment hearing officer shall affirm, modify or set aside the findings of fact and decision of the agency representative. The unemployment hearing officer promptly shall give written notice to all interested parties of the unemployment hearing officer's decision and the reasons for the decision. The decision of the unemployment hearing officer shall be deemed to be the final decision of the commissioner, unless further appeal is initiated pursuant to subsection (e) within fifteen (15) calendar days after the date of mailing of the written notification of the decision to the last known address of each interested party, or within fifteen (15) calendar days after the date the written notification of the decision is given to each interested party, whichever first occurs. In the absence of an appeal to the commissioner’s designee and within thirty (30) calendar days after the date of mailing of the written notification of the decision to the last known address of each interested party or within thirty (30) calendar days after the date the written notification of the decision is given to each interested party, whichever first occurs, the unemployment hearing officer may reconsider the unemployment hearing officer's decision and thereupon promptly shall give written notice to the claimant and all other interested parties of the amended decision and the reasons for the decision. The amended decision of the unemployment hearing officer shall be deemed to be the final decision of the commissioner, unless further appeal is initiated pursuant to subsection (e) within fifteen (15) calendar days after the date of mailing of the written notification of the decision to the last known address of each interested party, or within fifteen (15) calendar days after the date the written notification of the decision is given to each interested party, whichever first occurs.
    2. Notwithstanding any other provision of this chapter, the time limit provided in subdivision (b)(1) for an appeal to the appeals tribunal may be extended for good cause by the appeals tribunal, and the time limit provided in subdivision (c)(1) for an appeal to the commissioner’s designee may be extended for good cause by the commissioner’s designee. In determining whether or not good cause exists for extending the time limits, the appeals tribunal and the commissioner’s designee shall consider the length of the delay, the reason for the delay, and the prejudice or lack of prejudice to the parties.
  4. Unemployment Hearing Officers.  To hear and decide disputed claims, the commissioner shall appoint one (1) or more unemployment hearing officers selected in accordance with § 50-7-605. No person shall participate on behalf of the commissioner or the commissioner's designee in any case in which the person is an interested party. The commissioner may designate any regular qualified employee or employees of the department of labor and workforce development as temporary or acting unemployment hearing officers who shall serve as hearing officers without additional salary and for the period of time the commissioner designates. All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter. All permanently and temporarily appointed unemployment hearing officers will constitute a part of the unemployment compensation division. The commissioner shall provide the designees designated to hear second stage appeals and the unemployment hearing officers with proper facilities and assistants for the execution of their functions. The department shall hold annual training for all unemployment hearing officers. Such training shall include updates on any new laws or regulations involving employment security law enacted by the state or federal government.
  5. Commissioner’s Designees.
    1. The commissioner shall designate Tennessee licensed attorneys within the department of labor and workforce development to adjudicate appeals of the decisions of the unemployment hearing officer. The individuals so designated shall be referred to as the commissioner's designees and will constitute a part of the department of labor and workforce development's legal division.
    2. The commissioner's designees may on their own motion affirm, modify, or set aside any decision of an unemployment hearing officer on the basis of the evidence previously submitted in the case, or direct the taking of additional evidence, or may permit any of the parties to the decision to initiate further appeals before it. The commissioner's designee shall permit the further appeal by any of the parties interested in a decision of an unemployment hearing officer. The commissioner may remove to a designee or transfer to another unemployment hearing officer proceedings of any claim pending before an unemployment hearing officer. The commissioner's designee shall promptly give written notice to all interested parties of the designee's findings and decision. Any decision of the commissioner's designee shall be the final decision of the commissioner.
  6. Procedure.  The manner in which disputed claims shall be presented, the reports required from the claimant and from employers, and the conduct of hearings and appeals shall be in accordance with regulations prescribed by the commissioner for determining the rights of the parties, whether or not the regulations conform to common law or statutory rules of evidence and other technical rules of procedure; provided, that proof of misconduct may include personnel records and other business records that are in the possession of a claimant's employer and that are relevant to a claim, and such records shall be admissible and may constitute evidence of misconduct, regardless of whether such evidence is hearsay or whether corroborated by direct witness testimony, if such evidence is accompanied by an affidavit of its custodian or other qualified person certifying the evidence as a business record. A full and complete record shall be kept of all proceedings in connection with a disputed claim. All testimony at any hearing upon a disputed claim shall be recorded, but need not be transcribed, unless the disputed claim is appealed to chancery court. Notwithstanding § 4-5-312(c) or any other provision to the contrary, the appeals tribunal and the commissioner’s designee may, for good cause, hold all or part of the hearing by telephone conference. In determining good cause, the appeals tribunal and commissioner’s designee shall consider the wishes of the parties and such factors as the physical security risk to the participants or the department's staff, the travel distance to the hearing location for either or both parties, the relative hardship or convenience to the parties, the complexity of the issues and any other factor relevant to having a fair hearing.
  7. Witness Fees.  Witnesses subpoenaed pursuant to this section shall be allowed fees at the rates fixed by the commissioner; provided, that the rates shall not be less than the per diem and mileage rates fixed by the laws of the state in other civil cases. The fees are deemed a part of the expense of administering this chapter.
  8. Appeal to Courts.  Any decision of the commissioner, in the absence of any application by any interested party for rehearing of that decision, shall become final ten (10) calendar days after the date of mailing of the written notification of the decision to the last known address of each interested party or within ten (10) calendar days after the date the written notification of the decision is given to each interested party, whichever first occurs.  In the written notification shall be an explanation that further appeals shall be conducted within thirty (30) days of the commissioner's final decision by filing a petition for judicial review in the chancery court of the county of the party's residence and that the petition shall be against the commissioner of labor and workforce development. Judicial review of any decision of the commissioner shall be permitted only after any party claiming to be aggrieved by the decision has exhausted the administrative remedies provided by this chapter.
  9. Court Review.
    1. Within thirty (30) days after the decision of the commissioner has become final, any party aggrieved by the decision may secure judicial review of the decision by filing a petition for judicial review in the chancery court of the county of the party's residence against the commissioner for review of the decision, except that any petition for judicial review of tax liability must be filed in the chancery court of Davidson County. In the case of a petition filed by an aggrieved party who is not a resident of the state, within thirty (30) days after the decision of the commissioner’s designee has become final, a nonresident party may secure judicial review of the decision by filing a petition for judicial review against the commissioner in the chancery court of the county where the employer is located, except that any petition for judicial review of tax liability must be filed in the chancery court of Davidson County. Any other party to the proceeding before the commissioner’s designee shall be made a defendant to the petition and duly served with process. For the purposes of this subsection (i), the parties to the proceeding before the commissioner’s designee shall be deemed to include the original claimant or applicant for benefits, and each and every employer from whom the claimant received, during the claimant's base period, any wages for insured work, whether or not the party appeared and participated in the proceeding before the commissioner’s designee; and all the parties shall be deemed necessary parties to any petition for judicial review filed pursuant to this subsection (i). In such action, the petition shall distinctly state the grounds upon which the review is sought, and shall be served through the normal processes of the court upon the commissioner or the attorney general and reporter. Immediately upon the filing of the petition, the petitioner shall cause to be forwarded to the commissioner, for informational purposes, a copy of the petition, which shall be in addition to the copy of the petition served by the court at the time of service of the process. With the commissioner's answer, which shall be filed within thirty (30) days from the date the commissioner or the attorney general and reporter is served with the process, the commissioner shall file in the court a complete transcript of the record, which shall contain all documents and papers, a transcript of all testimony taken in the matter and findings of fact and conclusions of law by the commissioner’s designee.
    2. The chancellor may affirm the decision of the commissioner or the chancellor may reverse, remand or modify the decision if the rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
      1. In violation of constitutional or statutory provisions;
      2. In excess of the statutory authority of the agency;
      3. Made upon unlawful procedure;
      4. Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
      5. Unsupported by evidence that is both substantial and material in the light of the entire record.
    3. In determining the substantiality of evidence, the chancellor shall take into account whatever in the record fairly detracts from its weight, but the chancellor shall not substitute the chancellor's judgment for that of the commissioner’s designee as to the weight of the evidence on questions of fact. No decision of the commissioner’s designee shall be reversed, remanded or modified by the chancellor, unless for errors that affect the merits of the final decision of the commissioner’s designee. The petition for judicial review shall be heard by the chancellor either at term time or vacation as a matter of right, any other statute of this state to the contrary notwithstanding.
    4. It shall not be necessary in any judicial proceedings under this section to enter exceptions to the ruling of the commissioner’s designee, but the petition shall distinctly state the grounds upon which the action of the commissioner’s designee is deemed erroneous. An appeal may be taken from the judgment and decree of the chancery court having jurisdiction of these controversies to the Tennessee court of appeals, in the same manner, but not inconsistent with this chapter, as provided in other civil cases.
    5. In any judicial proceeding under this subsection (i), the appellant or petitioner shall give bond for costs, or in lieu of bond take the oath prescribed by law for paupers.
    6. Upon the final determination of the judicial proceedings, the commissioner’s designee shall enter an order in accordance with the final judicial determination.
  10. Notice of Health Insurance.  The commissioner, in performing the duties established in this section, shall provide to every individual at the time the individual first inquires about unemployment compensation benefits the following notice:

    You may be entitled to have the state of Tennessee pay the premium for your ongoing health insurance. For more information, contact your local department of human services.

  11. Conclusiveness of Findings.  No finding of fact or law, judgment, conclusion, or final order made with respect to a claim for unemployment compensation under this chapter may be conclusive in any separate or subsequent action or proceeding in another forum, except proceedings under this chapter, regardless of whether the prior action was between the same or related parties or involved the same facts.

Acts 1947, ch. 29, § 6; C. Supp. 1950, § 6901.6 (Williams, § 6901.30); Acts 1951, ch. 139, § 5; 1953, ch. 244, § 4; 1959, ch. 146, § 8; 1959, ch. 202, § 7; 1961, ch. 70, § 3; 1965, ch. 183, § 3; 1969, ch. 32, § 2; 1972, ch. 556, § 4; 1973, ch. 130, §§ 5, 6; 1975, ch. 190, §§ 6, 7; 1976, ch. 806, § 1(97); 1977, ch. 330, § 19; 1978, ch. 744, §§ 8, 9; 1979, ch. 422, § 15; T.C.A. (orig. ed.), § 50-1325; Acts 1984, ch. 886, § 1; 1985, ch. 318, §§ 22-27; 1988, ch. 685, §§ 1, 2; 1989, ch. 333, § 3; 1991, ch. 420, § 3; 1992, ch. 694, § 6; 1993, ch. 169, § 1; 1995, ch. 503, §§ 4, 5; 1999, ch. 45, §§ 1, 2; 1999, ch. 520, § 41; 2003, ch. 191, §§ 1-4; 2004, ch. 699, § 3; 2007, ch. 183, §§ 6, 7; 2007, ch. 264, § 1; 2009, ch. 209, § 1; 2010, ch. 1042, §§ 1-11; 2011, ch. 128, § 1; 2012, ch. 824, § 2; 2012, ch. 1050, § 5; 2013, ch. 427, §§ 4, 5; 2015, ch. 95, §§ 2-4.

Compiler's Notes. Acts 2007, ch. 183, § 8 provided that § 4 of the act shall apply to claimants awarded back pay awards on or after July 2, 2006 and that all other sections of the act shall apply to claimants filing initial claims on or after July 2, 2007.

Acts 2012, ch. 1050, § 1 provided that the act, which amended subdivision (b)(2)(C),  shall be known and may be cited as the “Unemployment Insurance Accountability Act of 2012.”

Acts 2013, ch. 427, § 8 provided that notwithstanding any other provision of law to the contrary, any provision of the act shall not apply to the extent that compliance with such provision would violate federal law or cause a loss of federal funding.

Amendments. The 2015 amendment deleted the last two sentences in (b)(1)(C) which read: “There shall be no one (1) year limitation on the agency representative reconsidering a decision if a claimant is subsequently convicted of a misdemeanor or felony that caused the separation from the employer; provided, however, that the employer gives notification of the conviction in a reasonable time to the agency. Any overpayment created as a result of a reconsideration because a claimant is subsequently convicted of a misdemeanor or felony that causes the separation from the employer shall be determined to be fraud and the administrator shall not waive repayment of the overpaid amounts.”; rewrote (b)(2)(E)(i) which read: “In addition to any remedies authorized by this chapter, the department may offset any covered unemployment compensation debt due to the department against any federal income tax refund due to the department’s claimant debtor in accordance with § 6402 of the Internal Revenue Code, codified in 26 U.S.C. § 6402, and the federal Treasury Offset Program, compiled in 31 CFR part 285, or any successor program.”; and deleted (b)(2)(E)(ii) which read: “(ii) The department may exercise this right of setoff if the obligation of the debtor was the result of: (a) Fraud or the claimant debtor's failure to report earnings; or (b) Any penalties and interest assessed by the department on a debt contemplated by this subdivision (b)(2)(E).”

Effective Dates. Acts 2015, ch. 95, § 9. July 1, 2015.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Unemployment Compensation, §§ 8, 9.

Law Reviews.

Ain't Misbehavin', Or What is Misconduct in Tennessee Under Employment Security Law? (Ellen H. Pollack), 22 No. 5, Tenn. B.J. 17 (1986).

NOTES TO DECISIONS

1. Due Process.

Minimum requirements of due process are satisfied where claimant is given notice and has an opportunity to be heard. Yates v. Traughber, 747 S.W.2d 338, 1987 Tenn. App. LEXIS 3213 (Tenn. Ct. App. 1987), cert. denied, 486 U.S. 1024, 108 S. Ct. 2000, 100 L. Ed. 2d 231, 1988 U.S. LEXIS 2331 (1988).

2. Parties.

The United States, under 5 U.S.C. § 8502(d), has waived its immunity from suit to the extent necessary to administer state unemployment compensation laws for the benefit of federal employees; thus it was error to dismiss the United States from a suit to review an administrative denial of unemployment benefits where the United States, as the former employer, was a necessary party. Weaver v. Wallace, 565 S.W.2d 867, 1978 Tenn. LEXIS 551 (Tenn. 1978).

3. Burden of Proof.

The burden of establishing the right to benefits is upon the claimant. Irvin v. Binkley, 577 S.W.2d 677, 1978 Tenn. App. LEXIS 276 (Tenn. Ct. App. 1978).

Substantial evidence supported a decision that an unemployment compensation claimant was disqualified because: (1) the claimant voluntarily left the claimant's job; and (2) the claimant's speculation that the claimant was going to be fired, even though later confirmed, was not good cause to quit. Barner v. Phillips, — S.W.3d —, 2014 Tenn. App. LEXIS 265 (Tenn. Ct. App. May 5, 2014).

4. Standard of Proof.

The clear and convincing standard of proof was inapplicable in proceedings where a party was found to be ineligible for benefits because of her termination from employment for gross misconduct. Jackson v. Bible, 611 S.W.2d 588, 1980 Tenn. App. LEXIS 404 (Tenn. Ct. App. 1980).

Substantial evidence supported the finding that a claimant engaged in work-related misconduct and disqualified from receiving unemployment benefits because the claimant used a racial epithet during a confrontation with a co-worker and continued to use the epithet during a meeting with a supervisor and human resources representative. Blackmon v. Eaton Elec., — S.W.3d —, 2013 Tenn. App. LEXIS 335 (Tenn. Ct. App. May 17, 2013).

5. Notice to Claimant of Right to Free or Inexpensive Counsel.

The failure of the Tennessee department of employment security (now department of labor and workforce development) to inform plaintiff of the availability of free or low-cost representation does not per se show prejudice and require that a new hearing be conducted on plaintiff's claim. Simmons v. Traughber, 791 S.W.2d 21, 1990 Tenn. LEXIS 213 (Tenn. 1990).

Where notice sent to plaintiff by department of employment security said: “You may be represented by counsel or other authorized representative at your own expense,” notice did not adequately inform the plaintiff of her right to be represented at the hearing, because the tone of the notice was negative and misleading, and for many unemployed claimants, a notice that they can be represented by counsel at their own expense will terminate their interest in obtaining an attorney and seeking benefits under the statute; and because plaintiff did not receive full and meaningful notice of her right to be represented by counsel before the appeals tribunal, she was denied her statutory right to a fair hearing. Simmons v. Traughber, 791 S.W.2d 21, 1990 Tenn. LEXIS 213 (Tenn. 1990).

Where employer had an attorney who examined the documentary evidence prior to the hearing, and plaintiff did not have an attorney or access to the documentary evidence prior to the hearing, was a laborer, had no legal training or experience, and was not able to adequately express herself at the hearing, department of employment security's (now department of labor and workforce development) failure to inform plaintiff of right to free or low-cost representation resulted in prejudice to plaintiff. Simmons v. Traughber, 791 S.W.2d 21, 1990 Tenn. LEXIS 213 (Tenn. 1990).

6. Finding of Board — Effect.

Although the unemployment of employees who walked out to protest the suspension of a fellow union member was originally due to a labor dispute, evidence that the employer refused to permit the employees to resume work was sufficient to support the board of review's finding that the unemployment was ultimately due to their dismissal rather than to a labor dispute. Milne Chair Co. v. Hake, 190 Tenn. 395, 230 S.W.2d 393, 1950 Tenn. LEXIS 499 (1950).

Where the board found that the short time consumed in picketing by employees who were refused the right to resume work after having walked out in protest over suspension of a fellow union member did not make them unavailable for employment, the supreme court would not be justified in holding contrary to the findings of the board. Milne Chair Co. v. Hake, 190 Tenn. 395, 230 S.W.2d 393, 1950 Tenn. LEXIS 499 (1950).

Finding by board of review that claimant was not entitled to benefits on the ground that she was not available for full time employment was conclusive where there was evidence before the board that she was required to lose one day in five day week due to illness. Miller v. Wiley, 190 Tenn. 498, 230 S.W.2d 979, 1950 Tenn. LEXIS 511 (1950).

Where decision of board of review was supported by material evidence, its findings were conclusive on chancellor and supreme court. Aluminum Co. of America v. Walker, 207 Tenn. 417, 340 S.W.2d 898, 1960 Tenn. LEXIS 474 (1960).

Where there was material evidence to the effect that each of claimants refused job offered him because it would have rendered him ineligible for recall to a job in his old classification in any department of the company except the department in which he was working at the time of layoff and there was no prospect for a restoration of the old job either in the company or elsewhere in the locality or within a reasonable traveling distance, finding of the board that claimants had refused suitable work would not be disturbed on review. Aluminum Co. of America v. Walker, 207 Tenn. 417, 340 S.W.2d 898, 1960 Tenn. LEXIS 474 (1960).

This section makes decision of board as to the facts and inferences to be drawn from facts the equivalent of a jury verdict. Bailey v. Tennessee Dep't of Employment Sec., 212 Tenn. 422, 370 S.W.2d 492, 1963 Tenn. LEXIS 437 (1963).

Where there is material evidence to support finding by board of review that petitioner for unemployment compensation was unavailable for work, both the chancellor and the supreme court are bound thereby. Duke v. Scott, 216 Tenn. 391, 392 S.W.2d 809, 1965 Tenn. LEXIS 584 (1965).

To sustain board of review's application of statute it is not necessary that court find that such construction was the only reasonable interpretation or that court would have reached same conclusion but only that the interpretation had warrant in the record and a reasonable basis in law. Cawthron v. Scott, 217 Tenn. 668, 400 S.W.2d 240, 1966 Tenn. LEXIS 620 (1966).

It is the duty of the chancellor to review the records of proceedings before the board of review and to determine whether there was any evidence in the records to sustain the board's findings of fact and if there was to apply the applicable law to those findings. Cawthron v. Scott, 217 Tenn. 668, 400 S.W.2d 240, 1966 Tenn. LEXIS 620 (1966).

If there is a reasonable basis in law to sustain the conclusions of the board they are conclusive. Guffey v. Scott, 217 Tenn. 707, 400 S.W.2d 705, 1966 Tenn. LEXIS 624 (1966).

Where the facts are not in dispute it becomes the duty of the court to apply the law to the facts without a presumption of the correctness of the board of review. Aladdin Industries, Inc. v. Scott, 219 Tenn. 71, 407 S.W.2d 161, 1966 Tenn. LEXIS 507 (1966).

Female employee who refused second shift work (4 P.M. to midnight) because she had three teen-age children and her husband worked at night was not able and available for work under this section. Aladdin Industries, Inc. v. Scott, 219 Tenn. 71, 407 S.W.2d 161, 1966 Tenn. LEXIS 507 (1966).

The issue of whether a claimant made himself “available for work” is an ultimate fact issue if the facts are in dispute and the court is limited to the determination of whether there is any evidence to support the board's findings. Aladdin Industries, Inc. v. Scott, 219 Tenn. 71, 407 S.W.2d 161, 1966 Tenn. LEXIS 507 (1966).

Where there was no substantial question as to the facts which brought about termination of worker's employment, the question of whether worker left her employment with or without good cause connected with her employment was one of law as to which trial judge could make independent conclusion. Cooper v. Burson, 221 Tenn. 621, 429 S.W.2d 424, 1968 Tenn. LEXIS 490 (1968).

The chancellor must affirm the board of review if there is any evidence to support the board's decision, unless the board's decision is contrary to the law. Perryman v. Bible, 653 S.W.2d 424, 1983 Tenn. App. LEXIS 547 (Tenn. Ct. App. 1983).

Res judicata did not apply because the proceeding before the department of employment security (now department of workforce and development) was instituted by the petitioner based on his claim of entitlement to unemployment compensation, and the administrative hearing was instituted by the petitioner to contest his termination and seek reinstatement. Goins v. University of Tennessee Memorial Research Center & Hosp., 821 S.W.2d 942, 1991 Tenn. App. LEXIS 510 (Tenn. Ct. App. 1991).

The doctrine of collateral estoppel was not applicable where the issue presented to the department of employment security (now department of labor and workforce development) appeals tribunal was whether the petitioner was disqualified from receiving unemployment benefits because of misconduct associated with his work, as that term is used in T.C.A. § 50-7-303(a)(3), and the issue in the contested administrative hearing was whether the petitioner was guilty of gross misconduct as that term is defined in the university's personnel policy and whether he violated the university hospital's work rules by committing willful or negligent damage to university property. Goins v. University of Tennessee Memorial Research Center & Hosp., 821 S.W.2d 942, 1991 Tenn. App. LEXIS 510 (Tenn. Ct. App. 1991).

Where plaintiff voluntarily imposed restrictions upon her availability for work, imposing medical restrictions that were beyond those restrictions set by her doctors, and also imposing financial restrictions, the plaintiff was properly denied benefits on the basis that she was not able and available for work. Ford v. Traughber, 813 S.W.2d 141, 1991 Tenn. App. LEXIS 174 (Tenn. Ct. App. 1991).

7. Arbitrator's Decision — Effect.

Arbitrator's decision that an employee was wrongfully discharged is not binding on the state department of employment security (now department of labor and workforce development), as the payment or nonpayment of unemployment compensation cannot be controlled by an agreement between the employer and the employee. Perryman v. Bible, 653 S.W.2d 424, 1983 Tenn. App. LEXIS 547 (Tenn. Ct. App. 1983).

The commissioner cannot delegate statutory duty under T.C.A. § 50-7-304 to an arbitrator. Perryman v. Bible, 653 S.W.2d 424, 1983 Tenn. App. LEXIS 547 (Tenn. Ct. App. 1983).

8. Conclusiveness of Findings.

T.C.A. § 50-7-304(k) applied retroactively to facts arising before its passage, and, thus, precluded employer's claim that employee was collaterally estopped from bringing an age discrimination action. Mangrum v. Wal-Mart Stores, 950 S.W.2d 33, 1997 Tenn. App. LEXIS 51 (Tenn. Ct. App. 1997).

9. Preservation for Review.

Taxpayer did not avail itself of the opportunity to bring asserted constitutional violations to the Tennessee Department of Labor and Workforce Development Board of Review's attention or to reopen the proof; as a consequence, its due process argument was deemed to be waived pursuant to T.C.A. § 50-7-304(e)(1). ARI, Inc. v. Neeley, — S.W.3d —, 2012 Tenn. App. LEXIS 543 (Tenn. Ct. App. Aug. 3, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 947 (Tenn. Dec. 14, 2012).

10. Judicial Review.

If the finding of the board of review is supported by any evidence, judicial review is limited to questions of law. Jackson v. Bible, 611 S.W.2d 588, 1980 Tenn. App. LEXIS 404 (Tenn. Ct. App. 1980).

Petitioners may seek judicial review in the chancery court as a matter of right, and indigent petitioners have the right to proceed in forma pauperis; in addition, nonresidents are not barred from proceeding in forma pauperis when filing a petition for review. Patterson v. Tenn. Dep't of Labor & Workforce Dev., 60 S.W.3d 60, 2001 Tenn. LEXIS 781 (Tenn. 2001).

As the facts were essentially undisputed, the court addressed the issue of whether the employee voluntarily quit as a question of law. Practical Ventures, LLC v. Neely, — S.W.3d —, 2014 Tenn. App. LEXIS 348 (Tenn. Ct. App. June 19, 2014).

As the facts supported a finding that she voluntarily terminated her employment, the holding that she was eligible for unemployment compensation benefits was not supported by substantial and material evidence and was arbitrary. Practical Ventures, LLC v. Neely, — S.W.3d —, 2014 Tenn. App. LEXIS 348 (Tenn. Ct. App. June 19, 2014).

Employee's claim for unemployment compensation was properly denied because there was substantial and material evidence in the record to establish that the employee was discharged for work-related misconduct; there was substantial and material evidence to support the finding that a coworker did not approach the employee in a threatening manner and that the employee was the aggressor in the situation. Sanders v. Comm'r of Dep't of Labor & Workforce Dev., — S.W.3d —, 2015 Tenn. App. LEXIS 727 (Tenn. Ct. App. Sept. 8, 2015).

Because an employee knew of the employer's threatening behavior policy, her failure to abide by the policy constituted substantial and material evidence to support the finding of the Designee for the Commissioner of the Department of Labor and Workforce Development that the employee committed work-related misconduct. Sanders v. Comm'r of Dep't of Labor & Workforce Dev., — S.W.3d —, 2015 Tenn. App. LEXIS 727 (Tenn. Ct. App. Sept. 8, 2015).

Substantial and material evidence established that an employee was discharged for work-related misconduct because the Designee for the Commissioner of the Department of Labor and Workforce Development properly found that the employee's statement constituted a threat prohibited by the employer's threatening behavior policy; the colloquial meaning of the phrase “take it outside,” when uttered in the heat of a dispute, could connote an invitation for a physical confrontation. Sanders v. Comm'r of Dep't of Labor & Workforce Dev., — S.W.3d —, 2015 Tenn. App. LEXIS 727 (Tenn. Ct. App. Sept. 8, 2015).

Employee lit a cigarette and smoked in the company truck, constituting a violation of the employer's rule, but substantial evidence supported the finding that the employee's action was exempt from the definition of misconduct and thus he was qualified for unemployment compensation; the employee unintentionally lit a cigarette when he woke up from a nap but almost immediately threw it out, nothing showed he had violated the same rule in the past or that he had been given a warning but deliberately ignored it, and the violation of the no-smoking policy was therefore an isolated incident. Pavement Restorations Inc. v. Ralls, — S.W.3d —, 2017 Tenn. App. LEXIS 111 (Tenn. Ct. App. Feb. 17, 2017).

Denial of medical licensure in Tennessee to an applicant was not inappropriate because the decision by the Tennessee Board of Medical Examiners that the applicant's long absence from direct patient care necessitated a formal assessment before the applicant could engage in the practice of emergency medicine in Tennessee was not unclear, arbitrary and capricious, or unsupported by substantial and material evidence. Perez v. Tenn. Bd. of Med. Examiners, — S.W.3d —, 2019 Tenn. App. LEXIS 336 (Tenn. Ct. App. July 3, 2019).

11. Certiorari.

Petition for certiorari was properly dismissed by chancellor where such petition did not distinctly state grounds upon which action of board of review was deemed erroneous. Austin v. Jennings, 211 Tenn. 485, 365 S.W.2d 886, 1963 Tenn. LEXIS 370 (1963).

The scope of judicial review afforded by this section is the very limited review of administrative fact findings long afforded by common law writ of certiorari. Irvin v. Binkley, 577 S.W.2d 677, 1978 Tenn. App. LEXIS 276 (Tenn. Ct. App. 1978).

The proceeding before the chancellor is without a jury. Irvin v. Binkley, 577 S.W.2d 677, 1978 Tenn. App. LEXIS 276 (Tenn. Ct. App. 1978).

12. Reimbursement by Employee.

The Tennessee unemployment compensation statutes authorize and contemplate reimbursement from employees in appropriate cases, and these are not confined only to cases of misrepresentation or nondisclosure. Griggs v. Sands, 526 S.W.2d 441, 1975 Tenn. LEXIS 595 (Tenn. 1975).

13. Illustrative Cases.

Substantial evidence supported the finding that a claimant engaged in work-related misconduct and disqualified from receiving unemployment benefits because the claimant used a racial epithet during a confrontation with a co-worker and continued to use the epithet during a meeting with a supervisor and human resources representative. Blackmon v. Eaton Elec., — S.W.3d —, 2013 Tenn. App. LEXIS 335 (Tenn. Ct. App. May 17, 2013).

Trial court erred in affirming the decision of the Tennessee Department of Labor and Workforce Development, which awarded a substitute teacher unemployment benefits because Designee of the Commissioner of the Department did not make findings that the teacher met the eligibility conditions in T.C.A. § 50-7-302(a)(4), specifically, that she was able to work, available for work, and making a reasonable effort to secure work. Metro Gov't of Nashville & Davidson County v. Tenn. Dep't of Labor & Workforce Dev., — S.W.3d —, 2014 Tenn. App. LEXIS 733 (Tenn. Ct. App. Nov. 13, 2014).

In an award of unemployment benefits, the decision of the designee of the Commissioner of Tennessee Department of Labor & Workforce Development that the former employee's termination was not the result of misconduct was supported by material evidence and was not arbitrary or capricious because, although he signed forms associated with two Department of Transportation (DOT) physicals containing inaccurate information, he informed the medical professionals of his vision problems, submitted to and passed vision tests administered during the DOT physicals, and had not been informed by any medical professionals that his vision problems prevented him from operating a commercial vehicle; and the former employer was informed of his vision problems. Hampton Crane Serv. v. Phillips, — S.W.3d —, 2018 Tenn. App. LEXIS 498 (Tenn. Ct. App. Aug. 27, 2018).

14. Remand.

Trial court did not err in remanding a former employee's case for a new agency proceeding with a new hearing officer because Department of Labor and Workforce Development conceded that the employee's rights could have been prejudiced by unlawful procedure and acknowledged that the placement of the employee's former colleague as the Appeals Tribunal hearing officer could have presented a conflict of interest and denied him the fair hearing to which he was entitled. Young v. Tenn. Dep't of Labor & Workforce Dev., — S.W.3d —, 2014 Tenn. App. LEXIS 656 (Tenn. Ct. App. Oct. 14, 2014).

Collateral References.

Application for, or receipt of, unemployment compensation benefits as affecting claim for workmen's compensation. 96 A.L.R.2d 941.

Conclusiveness and review of administrative determinations under statutory provisions requiring filing of payroll reports for purposes of unemployment insurance. 174 A.L.R. 410.

50-7-305. Extended benefits program.

  1. As used in this section, unless the context otherwise requires:
    1. “Eligibility period” of a claimant means the period consisting of the weeks in the claimant's benefit year that begin in an extended benefit period and, if the claimant's benefit year ends within the extended benefit period, any weeks thereafter that begin in that period;
    2. “Exhaustee” means a claimant who, with respect to any week of unemployment in the claimant's eligibility period:
        1. Has received, prior to that week, all of the regular benefits that were available to the claimant under this chapter or any other state law, including dependents' allowances and benefits payable to federal civilian employees and ex-servicemembers under 5 U.S.C. chapter 85, in the claimant's current benefit year that includes that week;
        2. For the purposes of subdivision (a)(2)(A)(i), a claimant shall be deemed to have received all of the regular benefits that were available to the claimant although, as a result of a pending appeal with respect to wages that were not considered in the original monetary determination in the claimant's benefit year, the claimant may subsequently be determined to be entitled to added regular benefits;
      1. The claimant's benefit year having expired prior to that week, has no, or insufficient, wages on the basis of which the claimant could establish a new benefit year that would include that week; and
        1. Has no right to unemployment benefits or allowances, as the case may be, under the Railroad Unemployment Insurance Act, compiled in 45 U.S.C. § 351 et seq., the Trade Expansion Act of 1962, compiled in 19 U.S.C § 1801 et seq., the Automotive Products Trade Act of 1965, compiled in 19 U.S.C. § 2001 et seq., and other federal laws that are specified in regulations issued by the United States secretary of labor; and
        2. Has not received and is not seeking unemployment benefits under the unemployment compensation law of Canada; but if the claimant is seeking the benefits and the appropriate agency finally determines that the claimant is not entitled to benefits under that law, the claimant is considered an exhaustee;
      1. “Extended benefit period” means a period that:
        1. Begins with the third week after a week for which there is a state “on” indicator; and
        2. Ends with either of the following weeks, whichever occurs later:
          1. The third week after the first week for which there is a state “off” indicator; or
          2. The thirteenth consecutive week of that period;
      2. No extended benefit period may begin by reason of a state “on” indicator before the fourteenth week following the end of a prior extended benefit period that was in effect with respect to this state;
    3. “Extended benefits” means benefits, including benefits payable to federal civilian employees and to ex-servicemembers pursuant to 5 U.S.C. chapter 85, payable to a claimant under this section for weeks of unemployment in the claimant's eligibility period;
    4. “Off indicator.” There is a state “off” indicator for a week if, for the period consisting of that week and the immediately preceding twelve (12) weeks, either subdivision (a)(6)(A) or (B) was not satisfied;
      1. “On indicator.” There is a state “on” indicator for a week if:
        1. The rate of insured unemployment under the state law for the period consisting of that week and the immediately preceding twelve (12) weeks:
          1. Equaled or exceeded one hundred twenty percent (120%) of the average of the rates for the corresponding thirteen-week period ending in each of the preceding calendar years; and
          2. Equaled or exceeded five percent (5%);
        2. The rate of insured unemployment under the state law for the period consisting of that week and the immediately preceding twelve (12) weeks equaled or exceeded six percent (6%) regardless of the rate of insured unemployment in the previous two (2) years;
        3. With respect to weeks of unemployment beginning on or after February 1, 2009, and ending on or before December 5, 2009, or until the week ending four (4) weeks prior to the last week of unemployment for which one hundred percent (100%) federal sharing is available under § 2005(a) of the American Recovery and Reinvestment Act of 2009, P.L. 111-5, without regard to the extension of federal sharing for certain claims as provided under § 2005(c) of the American Recovery and Reinvestment Act of 2009:
          1. The average rate of total unemployment (seasonally adjusted), as determined by the United States secretary of labor, for the period consisting of the most recent three (3) months for which data for all states are published before the close of such week equals or exceeds six and one half percent (6.5%); and
          2. The average rate of total unemployment in the state (seasonally adjusted), as determined by the United States secretary of labor, for the three-month period referred to in subdivision (a)(6)(A)(i), exceeds one hundred and ten percent (110%) of such average for either or both of the corresponding 3-month periods ending in the two (2) preceding calendar years; or
        4. Notwithstanding subdivision (a)(6)(D), effective with respect to compensation for weeks of unemployment in which there is one hundred percent (100%) federal sharing authorized by federal law for weeks of unemployment beginning after December 17, 2010, and ending on or before December 31, 2011, or until the week ending four (4) weeks prior to the last week of unemployment for weeks of unemployment established in federal law permitting this subdivision (a)(6)(A)(iv):
          1. The average rate of total unemployment (seasonally adjusted), as determined by the United States secretary of labor, for the period consisting of the most recent three (3) months for which data for all states are published before the close of such week equals or exceeds six and one half percent (6.5%); and
          2. The average rate of total unemployment in the state (seasonally adjusted), as determined by the United States secretary of labor, for the three-month period referred to in subdivision (a)(6)(A)(i), equals or exceeds one hundred and ten percent (110%) of such average for any or all of the corresponding three-month periods ending in the three (3) preceding calendar years.
      2. There is a state “off” indicator for a week only if, for the period consisting of such week and the immediately preceding twelve (12) weeks, none of the options specified in subdivision (a)(6)(A) result in an “on” indicator.
      3. Notwithstanding any provision of this section, any week for which there would otherwise be a state “on” indicator shall continue to be such a week and shall not be determined to be a week for which there is a state “off” indicator.
      4. No benefits shall be payable under this section based upon the average rate of total unemployment unless the American Recovery and Reinvestment Act of 2009 provides full federal funding of extended unemployment compensation and until such time as the commissioner of labor and workforce development certifies to the department of finance and administration that the mechanism and resources necessary for the prompt and efficient payment of such benefits are in place, except that in no event shall such certification fail to meet the deadline imposed by the American Recovery and Reinvestment Act of 2009 for the payment of such benefits in order to receive federal funding under the American Recovery and Reinvestment Act of 2009.
    5. “Rate of insured unemployment,” for purposes of subdivisions (a)(6) and (7), means the percentage derived:
      1. By dividing the average weekly number of claimants filing claims for regular state compensation in this state for weeks of unemployment with respect to the most recent thirteen (13) consecutive-week period, as determined by the administrator on the basis of the administrator's reports to the United States secretary of labor;
      2. By the average monthly employment covered under this chapter for the first four (4) of the most recent six (6) completed calendar quarters ending before the end of the thirteen-week period;
      1. “Regular benefits” means benefits payable to a claimant under this chapter or under any other state law, including benefits payable to federal civilian employees and to ex-servicemembers pursuant to 5 U.S.C. chapter 85, other than extended benefits. “Regular benefits” does not include additional benefits; and
      2. “Additional benefits” means benefits payable to exhaustees by reason of conditions of high unemployment or by reason of other special factors under any state law; and
    6. “State law” means the unemployment insurance law of any state, approved by the United States secretary of labor under the Internal Revenue Code of 1954, § 3304, codified in 26 U.S.C. § 3304.
  2. Except when the result would be inconsistent with the other provisions of this section, as provided in the regulations of the administrator, the provisions of this chapter that apply to claims for, or the payment of, regular benefits shall apply to claims for, and the payment of, extended benefits.
  3. A claimant shall be eligible to receive extended benefits with respect to any week of unemployment in the claimant's eligibility period only if the commissioner finds that with respect to that week:
    1. The claimant is an exhaustee;
    2. The claimant has satisfied the requirements of this chapter for the receipt of regular benefits that are applicable to claimants claiming extended benefits, including not being subject to a disqualification for the receipt of benefits; and
    3. For weeks of unemployment beginning after September 25, 1982, the claimant has been paid wages by an employer who was subject to this chapter during the base period of the claimant's current benefit year in an amount that equals or exceeds forty (40) times the claimant's weekly benefit amount for total unemployment.
    1. Notwithstanding any other provisions of this section, a claimant shall be ineligible for payment of extended benefits for any week of unemployment in the claimant's eligibility period if the administrator finds that during the period:
      1. The claimant failed to accept any offer of suitable work or failed to apply for any suitable work to which the claimant was referred by the commissioner; or
      2. The claimant failed to actively engage in seeking work as prescribed under subdivision (d)(6).
    2. Any claimant who has been found ineligible for extended benefits by reason of subdivision (d)(1) shall also be denied benefits beginning with the first day of the week following the week in which the failure occurred and until the claimant has been employed in employment covered by an unemployment compensation law of this state, another state, or the United States, in each of four (4) subsequent weeks, whether or not consecutive, and has earned remuneration equal to not less than four (4) times the extended weekly benefit amount.
    3. For purposes of this subsection (d), “suitable work” means, with respect to any claimant, any work that is within the claimant's capabilities; provided, that the gross average weekly remuneration payable for the work:
      1. Must exceed the sum of:
        1. The claimant's extended weekly benefit amount as determined under subsection (f);
        2. Plus the amount, if any, of supplemental unemployment benefits as defined in § 501(c)(17)(D) of the Internal Revenue Code of 1954, codified in 26 U.S.C. § 501(c)(17)(D), payable to the claimant for the week; and
      2. Pay wages not less than the higher of:
        1. The minimum wage provided by § 6(a)(1) of the Fair Labor Standards Act of 1938, compiled in 29 U.S.C. § 206(a)(1), without regard to any exemption; or
        2. The applicable state or local minimum wage.
      1. No claimant shall be denied extended benefits for failure to accept an offer of or apply for any job that meets the definition of “suitable work” as described in this subsection (d), if:
        1. The position was not offered to the claimant in writing or was not listed with the employment service;
        2. The failure could not result in a denial of benefits under the definition of “suitable work” for regular benefit claimants in § 50-7-303(a)(3) to the extent that the criteria of suitability in that section are not inconsistent with subdivision (d)(3); or
        3. The claimant furnishes satisfactory evidence to the administrator that the claimant's prospects for obtaining work in the claimant's customary occupation within a reasonably short period are good.
      2. If the evidence requested by subdivision (d)(4)(A)(iii) is deemed satisfactory for purposes of this subsection (d), the determination of whether any work is suitable with respect to the claimant shall be made in accordance with the definition of “suitable work” for regular benefit claimants in § 50-7-303(a)(3) without regard to the definition specified by subdivision (d)(3).
    4. Notwithstanding subsection (b) to the contrary, no work shall be deemed to be suitable work for a claimant that does not accord with the labor standard provisions required by  § 3304(a)(5) of the Internal Revenue Code of 1954, codified in 26 U.S.C. § 3304(a)(5), and set forth under § 50-7-303(a)(3)(B).
    5. For the purposes of subdivision (d)(1)(B), a claimant shall be treated as actively engaged in seeking work during any week if:
      1. The claimant has engaged in a systematic and sustained effort to obtain work during that week; and
      2. The claimant furnishes tangible evidence that the claimant has engaged in that effort during that week.
    6. The employment service shall refer any claimant entitled to extended benefits under this section to any suitable work that meets the criteria prescribed in subdivision (d)(3).
  4. The weekly extended benefit amount payable to a claimant for a week of total unemployment in the claimant's eligibility period shall be an amount equal to the weekly benefit amount payable to the claimant during the claimant's applicable benefit year.
  5. Total extended benefit amount.
    1. The total extended benefit amount payable to any eligible individual with respect to the applicable benefit year shall be the least of the following amounts:
      1. Fifty percent (50%) of the total amount of regular benefits (including dependents' allowances) that were payable to an eligible claimant in the eligible claimant's applicable benefit year;
      2. Thirteen (13) times the eligible claimant's weekly benefit amount (including dependents' allowances) that was payable to an eligible claimant for a week of total unemployment in the applicable benefit year; or
      1. Effective with respect to weeks beginning in a high unemployment period, subdivision (f)(1) shall be applied by substituting:
        1. The amount “eighty percent (80%)” for the amount “fifty percent (50%)” in subdivision (f)(1)(A); and
        2. The figure “twenty” for the figure “thirteen” in subdivision (f)(1)(B);
      2. For purposes of this subdivision (f)(2), “high unemployment period” means any period during which an extended benefit period would be in effect if subdivision (a)(6)(A)(iii) were applied by substituting the amount “eight percent (8%)” for the amount “six and one-half percent (6.5%)” in subdivision (a)(6)(A)(iii)(a );
    2. Notwithstanding subdivision (a)(1), for purposes of this subsection (f) an individual's eligibility period shall include any eligibility period provided for in § 2005(b) of the American Recovery and Reinvestment Act of 2009, P.L. 111-5;
    3. Total extended benefits payable on an interstate claim filed under the interstate benefit payment plan shall be limited to the first two (2) weeks of the interstate claim, unless both the agent state and the liable state are in an extended benefit period.
    1. Whenever an extended benefit period is to become effective in this state as a result of a state “on” indicator, or an extended benefit period is to be terminated in this state as a result of a state “off” indicator, the commissioner shall make an appropriate public announcement.
    2. Computations required by subdivision (a)(4) shall be made by the administrator, in accordance with regulations prescribed by the United States secretary of labor.
  6. Notwithstanding any other provisions of this chapter, if the benefit year of any claimant ends within an extended benefit period, the remaining balance of extended benefits that the claimant would, but for this section, be entitled to receive in that extended benefit period, with respect to weeks of unemployment beginning after the end of the benefit year, shall be reduced, but not below zero (0), by the product of the number of weeks for which the claimant received any amounts as trade readjustment allowances within that benefit year, multiplied by the claimant's weekly benefit amount for extended benefits.
  7. Notwithstanding any other provision of this chapter, the governor may trigger off an extended benefit period in order to provide the payment of federal benefits whenever a program of benefits financed by the federal government becomes available to individuals who have exhausted their regular benefits.

Acts 1971, ch. 204, § 15; 1973, ch. 130, § 11; 1975, ch. 21, § 1; 1977, ch. 330, § 31; 1978, ch. 744, §§ 19-21; 1981, ch. 165, § 2; 1982, ch. 606, §§ 2-7; T.C.A., § 50-1362; Acts 1983, ch. 439, § 12; 1985, ch. 318, §§ 28-39; 1987, ch. 148, § 6; 1993, ch. 194, §§ 14-17; 2009, ch. 550, §§ 7, 16; 2011, ch. 391, § 1.

Compiler's Notes. The American Recovery and Reinvestment Act of 2009, referred to in this section, was enacted on February 17, 2009, as P.L. 111-5. Section 2005 of that act referred to in this section may be found as a note to 26 U.S.C. § 3304  (Full federal funding of extended unemployment compensation for a limited period).

Acts 2011, ch. 391, § 2 provided that it is the clear and unequivocal intent of the general assembly that subdivision (a)(6)(A)(iv), as added by the act, have retroactive application to December 17, 2010.

Cross-References. Cooperation with federal agencies, § 50-7-705.

Definitions, title 50, ch. 7, part 2.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

50-7-306. Seasonal employment.

  1. As used in this section:
    1. “Active seasonal period” means the regularly recurring period of twenty-six (26) consecutive weeks or less within a calendar year as approved by the department in which a seasonal employer customarily carries on all work operations;
    2. “Inactive seasonal period” means the period within a calendar year in which there is a customary cessation of all work operations and is other than the active seasonal period;
    3. “Non-seasonal wages” mean wages earned in employment other than seasonal employment;
    4. “Reasonable assurance” means a written notice that the employee will be employed by the seasonal employer in the same or similar capacity during the following active seasonal period;
    5. “Seasonal employer” means an employer who customarily employs workers only during a regularly recurring period of twenty-six (26) consecutive weeks or less within a calendar year and has been determined to be a seasonal employer by the department;
    6. “Seasonal employment” means employment within the active seasonal period, as approved by the department;
    7. “Seasonal wages” means remuneration earned during seasonal employment by a seasonal worker who has received actual written notice prior to performing any seasonal work in the active seasonal period that the wages are potentially excludable from the base period as defined in § 50-7-218; and
    8. “Seasonal worker” means an individual who has earned seasonal wages from a seasonal employer during the approved active seasonal period.
  2. Determination of Seasonal Employer Status.  Effective July 1, 2020:
    1. No employer shall be considered a seasonal employer until the department issues a written determination that an applicant is a seasonal employer;
    2. An application for a seasonal employer determination must be made on forms prescribed by the department and must be received by the department between September 1 and October 31 each year;
    3. At the time of application, the employer shall have an experience rating pursuant to § 50-7-403(b)(1)(A); shall have no unpaid liability, including lien fees, penalties, or interest charges; and shall have not been delinquent in submitting any premium and wage reports or payment required under this chapter in the four (4) quarters preceding the application;
    4. Upon application for seasonal employer status, the department shall determine whether the employer is seasonal and, if seasonal, the employer's active seasonal period. The determination will be effective January 1 through December 31 of the following calendar year and shall not have any retroactive effect;
    5. The determination shall include the beginning and ending dates of the seasonal employer's active seasonal period. If the beginning or ending date for the active seasonal period falls within any calendar week, the entire week is counted as within the active seasonal period;
    6. Any seasonal employer determination rendered with respect to an employer pursuant to this section shall be final and conclusive upon the employer for all purposes and in all proceedings whatsoever unless the employer has timely filed with the division of employment security a written application for review and redetermination in accordance with § 50-7-404(h);
    7. The department may, on its own motion, reconsider the active seasonal period and seasonal employer status of any seasonal employer;
    8. The department shall terminate the employer's seasonal employer status upon receipt of a written request from the seasonal employer requesting termination of the seasonal employer status; and
    9. If any seasonal worker performs services for the same seasonal employer outside the employer's designated active seasonal period and in excess of twenty-six (26) consecutive weeks in a calendar year, the seasonal employer is disqualified as a seasonal employer and all wages paid by the seasonal employer to all seasonal workers shall be considered non-seasonal wages.
  3. Notification to Seasonal Workers.  Effective July 1, 2020:
    1. A seasonal employer shall conspicuously display the department's seasonal determination on the employer's premises;
    2. Each seasonal worker or prospective seasonal worker shall receive written notice from the seasonal employer prior to the beginning of each active seasonal period that the seasonal wages are potentially excludable from the base period as defined in § 50-7-218. The notice shall:
      1. Be provided prior to the performance of any service for the seasonal employer;
      2. Advise the seasonal worker of the beginning and ending dates of the active seasonal period; and
      3. Contain the department's contact information for any inquiries by the seasonal workers; and
    3. The employer shall provide the seasonal worker with written notice of any subsequent change in the employee's status as a seasonal worker.
  4. Payment of Benefits to Seasonal Workers.  Effective July 1, 2020:
    1. Wages from seasonal employment shall not be included in the base period as defined in § 50-7-218 for any week of unemployment commencing during the inactive seasonal period between two (2) successive active seasonal periods, if the claimant performs the services in an active seasonal period and a reasonable assurance is provided that the claimant will perform the service for the seasonal employer during the following active seasonal period;
    2. If benefits are denied to a seasonal worker for any week solely as a result of subdivision (d)(1) and the seasonal worker is not offered an opportunity to perform in the next active seasonal period for which there was a reasonable assurance of employment, the seasonal worker is entitled to retroactive payment of benefits for each week that the seasonal worker previously filed a timely claim for benefits; and
    3. Wages from seasonal employment shall be included in the base period as defined in § 50-7-218 for any week of unemployment commencing during the employer's active seasonal period.

Acts 2012, ch. 1107, § 1; 2016, ch. 751, § 2.

Amendments. The 2016 amendment rewrote this section, which read: “(a) As used in this section:“(1) ‘Active period or periods of a seasonal pursuit’ means the longest regularly recurring period or periods of a calendar year within which production operations of a seasonal employer are customarily carried on;“(2) ‘Inactive period or periods of a seasonal pursuit’ means that part of a calendar year which is not included in the active period or periods of a seasonal employer;“(3) ‘Interested party’ means any individual affected by a seasonal determination;“(4) ‘Production operations’ means all the activities of employment which are primarily related to the production of the employer's characteristic goods or services;“(5) ‘Reasonable assurance’ means a written, oral or implied agreement that the employee will perform services in the same or similar capacity during the ensuing active period of a seasonal pursuit;“(6) ‘Seasonal employment’ means services performed by an individual in the employ of a seasonal employer and only during such seasonal employer's active period or periods of a seasonal pursuit. No services performed by an individual in the employ of a seasonal employer may be considered seasonal employment if the individual performs any services in the employ of such employer during the inactive period of seasonal pursuit;“(7) ‘Seasonal wages’ means the wages earned by a seasonal worker as an employee of a seasonal employer within the active period or periods of such employer. The department may prescribe by rule the manner in which seasonal wages shall be reported; and“(8) ‘Seasonal worker’ means an individual in the employ of a seasonal employer only during the employer's active period of seasonal pursuit. An individual may not be considered a seasonal worker nor should wages be reported as seasonal wages if the individual performs any services in the employ of such employer within the inactive period of a seasonal pursuit.“(b) Effective with claims filed on or after July 1, 2016:“(1) A seasonal employer is one which, because of seasonal conditions making it impracticable or impossible to do otherwise, customarily carries on production operations only within a regularly recurring active period or periods of less than an aggregate of thirty-six (36) weeks in a calendar year. No employer shall be considered a seasonal employer until the department makes a determination that the employer is seasonal. However, any successor to a seasonal employer shall be deemed a seasonal employer unless the successor requests cancellation of the seasonal employer status within one hundred twenty (120) days after the acquisition. This subdivision (b)(1) shall not be applicable to pending cases or retroactive in effect;“(2) Upon application by an employer for seasonal employer status, the department shall determine or redetermine whether the employer is seasonal and, if seasonal, the employer's active period. The department is authorized to redetermine a seasonal employer's active period. An application for a seasonal determination must be made on forms prescribed by the department and must be made at least thirty (30) days prior to the beginning date of the period of production operations for which a determination is requested;“(3)(A) Whenever the department has determined or redetermined an employer to be seasonal, the employer shall be notified immediately. The notice must contain the beginning and ending dates of the employer's active period or periods;“(B) Any employer determined or redetermined to be a seasonal employer shall display notices of its seasonal determination conspicuously on the employer's premises in a sufficient number of places to be available for inspection by the employer's workers. Any employer determined or redetermined to be a seasonal employer shall also notify the employer's workers in writing upon the initial seasonal determination and individually to any worker hired by the seasonal employer after such initial notification. Such notices shall contain the department's contact information for any inquiries by the workers. The notices may be furnished by the department;“(4) A determination or redetermination by the department that an employer is a seasonal employer shall become effective unless an interested party files an application for review within ten (10) days of the beginning date of the first period of production operations to which the determination or redetermination applies. An application for review shall be an application for a determination of status;“(5)(A) Benefits based on seasonal employment shall be payable to a seasonal worker in the employ of a seasonal employer for weeks of unemployment that occur during such employer's active period of seasonal pursuit;“(B) Benefits shall not be paid based on services performed in seasonal employment for any week of unemployment beginning after July 1, 2016, that begins during the period between two (2) successive normal active periods of seasonal pursuit to any seasonal worker if that seasonal worker performs the service in the first of the normal active periods and if there is a reasonable assurance that the seasonal worker will perform the service for a seasonal employer in the second of the active periods. If benefits are denied to a seasonal worker for any week solely as a result of this subsection (b) and the seasonal worker is not offered an opportunity to perform in the second normal active period for which reasonable assurance of employment had been given, the seasonal worker is entitled to a retroactive payment of benefits under this subsection (b) for each week that the seasonal worker previously filed a timely claim for benefits;“(6) The benefits payable to any otherwise eligible seasonal worker shall be calculated in accordance with this section for any benefit year which is established on or after the beginning date of a determination by the department that an employer is a seasonal employer if such seasonal worker was employed by the seasonal employer during the base period applicable to such benefit year, as if such determination had been effective in such base period;“(7) Nothing in this section shall be construed to limit the right of any individual whose claim for benefits is determined in accordance with this section to appeal from such determination as provided in § 50-7-304.“(c) It is the intent of the general assembly that the department will begin preparation for implementation of this section by including in any request for proposal for new computer systems the ability to begin implementing this section by July 1, 2016.”

Effective Dates. Acts 2016, ch. 751, § 6. July 1, 2016.

Part 4
Premiums

50-7-401. Payment.

  1. Premiums shall accrue and become payable by each employer for each calendar year in which the employer is subject to this chapter, with respect to wages paid for employment, as defined in § 50-7-207, occurring during the calendar year; provided, that any employer who uses an accrual basis of accounting may report wages when earned so long as the reporting method is consistent. The premiums shall become due and be paid by each employer to the administrator for the fund in accordance with regulations the commissioner prescribes, and shall not be deducted, in whole or in part, from the wages of individuals who perform services for the employer. Neither shall payments in lieu of premiums be deducted in whole or in part from the wages of individuals who perform services for employers making the payments.
  2. In the payment of any premium, a fractional part of a cent shall be disregarded unless it amounts to one half cent (½ ¢) or more, in which case it shall be increased to one cent (1¢).

Acts 1947, ch. 29, § 7; C. Supp. 1950, § 6901.7 (Williams, § 6901.31); Acts 1973, ch. 130, § 7; T.C.A. (orig. ed), § 50-1326; Acts 1985, ch. 318, §§ 40, 41; 1992, ch. 694, § 7.

Cross-References. Definitions, title 50, ch. 7, part 2.

Funds, title 50, ch. 7, part 5.

Law Reviews.

A Primer on Unemployment Insurance Law for the General Practitioner (D. Bruce Shine, Sam Watridge, Donald F. Mason, Jr.), 23 No. 2 Tenn. B.J. 11 (1987).

NOTES TO DECISIONS

1. Setoff.

The state may set off amounts owed to the debtor for prepetition services provided by the debtor to one department of state government against prepetition taxes owed by the debtor to another department of state government. In re Bennett Co., 118 B.R. 564, 1990 Bankr. LEXIS 1964 (Bankr. M.D. Tenn. 1990).

Collateral References.

Bankruptcy of employer, unemployment insurance taxes as payable in respect of claims for wages earned before. 174 A.L.R. 1295.

Construction and application of provision in Unemployment Compensation Act excluding from the basis of contribution remuneration in excess of a named amount paid to employee. 159 A.L.R. 1197.

Deductibility of other licenses and taxes in computing. 174 A.L.R. 1263.

Employer's unpaid contribution under Social Security or Unemployment Compensation Act, rank or priority of lien or claim for. 140 A.L.R. 1042.

Incidence of unemployment compensation tax upon employer where during the base year, employee worked in different states for same employer. 9 A.L.R.2d 646.

Judicial questions regarding unemployment provisions of federal Social Security Act and state legislation adopted to set up “state plan” contemplated by that act. 100 A.L.R. 697, 106 A.L.R. 243, 108 A.L.R. 613, 109 A.L.R. 1346, 118 A.L.R. 1220, 121 A.L.R. 1002.

Service charges, made by hotels or restaurants and later distributed to waiters or similar employees, as “wages” upon which federal or state unemployment taxes or contributions are required to be paid. 83 A.L.R.2d 1024.

What amounts to presence of foreign corporation in state, so as to render it liable to action therein to recover unemployment compensation tax. 161 A.L.R. 1068.

50-7-402. Rate of premiums.

  1. Each employer shall pay premiums equal to five and one half percent (5.5%) of wages paid by the employer during each calendar year with respect to employment, except as provided in § 50-7-403.
  2. Notwithstanding subsection (a), effective on and after July 1, 1982, any governmental employer referred to in § 50-7-207(b)(3)(A) and (B), who chooses to be a taxpaying, premium paying, employer, as opposed to one who elects to make payments in lieu of premiums, will pay premiums equal to one and one half percent (1.5%) of wages paid by the employer during each calendar year with respect to employment, except as provided in § 50-7-403.

Acts 1947, ch. 29, § 7; C. Supp. 1950, § 6901.7 (Williams, § 6901.31); Acts 1977, ch. 330, § 20; 1982, ch. 820, § 7; T.C.A. (orig. ed.), § 50-1327; Acts 1983, ch. 439, § 3; 1984, ch. 701, § 3; 1984, ch. 786, § 1; 1985, ch. 318, §§ 42, 43; 1986, ch. 597, § 3; 1989, ch. 388, §§ 5, 6.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

50-7-403. Experience rating for employers.

  1. Except as provided in § 62-43-113(b)(2)(A)(ii) [repealed] of the Tennessee Employee Leasing Act pertaining to staff leasing companies and the clients of the staff leasing companies, for each twelve-month period beginning July 1, employers shall be classified, in accordance with the experience in the payment of premiums and with respect to benefits charged against their accounts, in order that premium rates may be assigned that will reflect the benefit and premium experience.
    1. Except as provided in § 62-43-113(b)(2)(A)(ii) [repealed] of the Tennessee Employee Leasing Act pertaining to staff leasing companies and the clients of the staff leasing companies, there shall be two (2) methods used in determining the experience rating of an employer. In each method, the benefit and premium experience is to be determined from the reserve ratio. Subdivision (b)(1)(A) shall apply to any employer whose individual account has been chargeable with benefits and subject to premiums throughout the thirty-six (36) consecutive calendar month period ending on the computation date, as defined in subdivision (k)(1), and shall continue to apply until the employer has not had a payroll subject to premiums for nine (9) consecutive calendar quarters. Any other employer subject to premiums and chargeable with benefits shall be considered a new employer and shall be subject to the applicable new employer rate as provided in subdivision (b)(1)(B).
      1. The reserve ratio of each employer subject to this subdivision (b)(1) shall be determined by totaling all premiums paid by that individual employer for all years during which that employer has been subject to this chapter and subtracting the total of all benefits charged to the account of that employer for all years. The difference shall be divided by the average taxable payroll of that employer for the three (3) most recent calendar years, ending on the computation date. The resulting quotient shall be the reserve ratio for that employer. The employer premium rate shall be determined by matching the reserve ratio to the appropriate premium rate in premium rate table 1, 2, 3, 4, 5 or 6 in subsection (g).
      2. 01–09 Agriculture

        10–14 Mining

        15–17 Construction

        20–39 Manufacturing

        40–49 Transportation

        50–59 Trade

        60–67 Finance, Insurance, Real Estate

        70–89 Services

        A separate reserve ratio is determined for each classification by totaling all premiums paid by all employers within the same classification for all years during which these employers have been subject to this chapter and subtracting the total of all benefits charged to the accounts of those employers for all years. The difference shall be divided by the average taxable payrolls of those employers for the three (3) most recent calendar years, ending on the computation date. The new employer premium rate shall be two and seven tenths percent (2.7%) for each twelve-month period beginning July 1, except when the industry or business of the new employer falls within a classification of the SIC Code that has a reserve ratio of minus four percent (-4%) or less. In those instances only, the new employer premium rates shall be determined for each twelve-month period beginning July 1, by matching the reserve ratios to the appropriate premium rates in premium rate table 1, 2, 3, 4, 5 or 6 of subsection (g). This new employer premium rate will be assigned for each tax rate year beginning July 1, until the employer's individual account has been chargeable with benefits and subject to premiums throughout the thirty-six (36) consecutive calendar month period ending on the computation date.

        The two-digit NAICS and the code numbers and the industries or businesses within each classification are:

        11 Agriculture, Forestry, Fishing, Hunting

        21 Mining

        22 Utilities

        23 Construction

        31 Manufacturing — food, beverage, tobacco products, textile, apparel, leather and allied product manufacturing

        32 Manufacturing — wood, paper, printing and related support services, petroleum and coal products, chemical, plastics and rubber, nonmetallic mineral product manufacturing

        33 Manufacturing — primary metal, fabricated metal, machinery, computer and electronic products, electrical equipment, appliances and components, transportation equipment, furniture and related products, miscellaneous manufacturing

        42 Wholesale Trade

        44 Retail Trade — motor vehicle and parts dealers, furniture and home furnishings, electronics and appliances, building material and garden equipment, food and beverage, health and personal care, gasoline stations, clothing and clothing accessories stores

        45 Retail Trade — sporting goods, hobby, book and music stores, general merchandise, miscellaneous store retailers, nonstore retailers

        48 Transportation and Warehousing — air, rail, water, truck, transit and ground passenger, pipeline, scenic and sightseeing transportation, support activities for transportation

        49 Transportation and Warehousing — postal service, couriers and messengers, warehousing and storage

        51 Information — publishing, motion picture and sound recording, broadcasting and telecommunications, information services and data processing

        52 Finance and Insurance

        53 Real Estate and Rental and Leasing

        54 Professional, Scientific and Technical Services

        55 Management of Companies and Enterprises

        56 Administrative and Support and Waste Management and Remediation Services

        61 Educational Services

        62 Health Care and Social Assistance

        71 Arts, Entertainment and Recreation

        72 Accommodation and Food Services

        81 Other Services, except Public Administration

        1. Prior to July 1, 2004, the reserve ratio assigned to all new employers shall be determined by ascertaining which of the Standard Industrial Classification (SIC) Codes applies to the employer's industry or business. The SIC Codes and the code numbers of the industries or businesses within each classification are:
        2. Effective July 1, 2004, the premium rate assigned to each new employer for each twelve-month period beginning July 1 shall be two and seven tenths percent (2.7%) except when the industry or business of the new employer falls within a two-digit classification of the North American Industry Classification System (NAICS) that has a reserve ratio of less than zero percent (0%). In those instances only, the new employer rates shall be determined for each twelve-month period beginning July 1 by matching the reserve ratio of a 2-digit NAICS in which the employer's industry or business is classified to the appropriate premium rates in premium rate table 1, 2, 3, 4, 5 or 6 of subsection (g). This new employer premium rate will be assigned for each tax rate year beginning each July 1, until the employer's individual account has been chargeable with benefits and subject to premiums throughout the thirty-six (36) consecutive calendar month period ending on the computation date. The reserve ratio of each two-digit NAICS is determined for each classification by:
          1. Totaling all premiums paid by all employers within the same classification, who were active anytime within the thirty-six (36) consecutive months ending on the previous December 31, for all years during which these employers have been subject to this chapter; and
          2. Subtracting the total of all benefits charged to the accounts of those employers for all years; and
          3. Dividing the difference by the average taxable payrolls of those employers for the three (3) most recent calendar years ending on the previous December 31.
        3. (a)  Notwithstanding subdivision (b)(1)(B)(ii), the department, in determining the experience rating for new employers in operation at least three (3) years immediately preceding the date of becoming a liable employer in Tennessee, shall allow, upon election of the employer, for an interstate transfer of the employer's experience rating.
          1. (iii)  (a)  Notwithstanding subdivision (b)(1)(B)(ii), the department, in determining the experience rating for new employers in operation at least three (3) years immediately preceding the date of becoming a liable employer in Tennessee, shall allow, upon election of the employer, for an interstate transfer of the employer's experience rating.
          2. The employer shall provide the department with an authenticated account history from information accumulated from operations from the state from which the employer relocated in order to compute a Tennessee new employer premium rate.
          3. This subdivision (b)(1)(B)(iii) shall apply to all employers relocating into Tennessee on or after July 1, 2014.
          4. In the event that the unemployment trust fund balance is lower than or equal to seven hundred million dollars ($700,000,000), then the commissioner, in the commissioner's sole discretion, may suspend the use of this subdivision (b)(1)(B)(iii) to determine the new employer experience rating for employers relocating to Tennessee. The rate shall revert to the industry rate designated at the time of the suspension of this subdivision (b)(1)(B)(iii).
          5. Notwithstanding any other law to the contrary, this subdivision (b)(1)(B)(iii) shall not apply to the extent that compliance with such provisions would violate federal law or cause the department a loss of federal funding.
      3. After January 1, 1954, premiums paid up to and including January 31 shall be deemed to have been paid for the period ending December 31 of the previous calendar year, if the premiums are based on wages paid during the period ending December 31 of the previous calendar year. Benefits will be charged to employers' accounts on the basis of benefits paid during each calendar year ending on the computation date.
    2. Mergers and Successorships.  Effective for transfers made on or after January 1, 2006, premium and benefit experience, as provided in subsections (a) and (b)(1), shall only be transferred in accordance with this subdivision (b)(2).
        1. In the event of a merger of employers or employing units and the resulting employer is a new entity, the combined taxable payroll, benefit and premium experience of the employers or employing units involved shall be computed as of the effective date of the merger to determine a new reserve ratio and premium rate applicable to the resulting employer.
        2. In the event that any person or employing unit acquires or has acquired all or a distinct, severable, identifiable and segregable portion of the business of an employer and continues or has continued the acquired portion of the business of the predecessor, the successor shall be eligible to succeed to that part of the taxable payroll, benefit and premium experience of the predecessor that is attributable solely to that portion of the business that was acquired; provided, that:
          1. Any and all of the predecessor employer's outstanding liabilities under this chapter are paid;
          2. The parties have filed with the division of employment security a written agreement transferring the taxable payroll, benefit and premium experience, or portion of the taxable payroll, benefit and premium experience. The agreement must be executed by all of the employers or employing units involved, and must be notarized and filed during the calendar quarter in which the acquisition occurs or during the calendar quarter immediately following that quarter; and
          3. The administrator does not determine, pursuant to the factors in subdivision (b)(2)(F), that a substantial purpose of the transfer of trade or business was to obtain a reduced liability for premiums.
        1. In the event that there is only one (1) transferring employer and the successor, at the time of the acquisition, is not already an employer, as defined in § 50-7-205, the reserve ratio and premium rate applicable to the predecessor employer, with respect to the period immediately preceding the date of the transfer, applies to the successor employer for the calendar quarter in which the acquisition takes place, and remains in effect until adjusted as provided in subsections (g) and (j). In the event that the successor, at the time of the acquisition, is an employing unit, as defined in § 50-7-206, but not an employer, as defined in § 50-7-205, the successor shall, as of the first day of the calendar year during which the transfer is made, become an employer under this chapter, and the successor's premium rate, from January 1 of the year in which the acquisition takes place until the first day of the calendar quarter during which the acquisition takes place, shall be the applicable new employer premium rate as provided in subdivision (b)(1)(B).
        2. In the event that the successor is already an employer at the time of the acquisition, the reserve ratio applicable at the time of the acquisition to the successor employer shall continue to be applicable until the end of the rate year in which the succession occurs.
        3. Commencing with the next premium rate year after an employer has transferred a distinct, severable, identifiable and segregable portion of the employer's business, the reserve ratio and premium rate of the predecessor employer shall be based on the portion of the taxable payroll, benefit and premium experience remaining to the credit of the predecessor employer after the transfer.
      1. Notwithstanding any other law, this subdivision (b)(2)(C) shall apply regarding assignment of premium rates and transfers of benefit and premium experience of an employer's trade or business, or a portion of an employer's trade or business, to another employer, if, at the time of the transfer, there is any common ownership, management or control of the two (2) employers. In such cases, the benefit and premium experience attributable to the transferred trade or business shall be transferred to the employer to whom the trade or business is so transferred. The reserve ratios and premium rates of both employers shall be recalculated and made effective immediately upon the date of the transfer of the trade or business. For the purposes of this section:
        1. “Trade or business” includes the employer's workforce;
        2. “Common ownership, management or control” includes any individual who has at least a ten percent (10%) ownership interest in or participates in the management or control of the predecessor's trade or business, and who has a relative who has a ten percent (10%) ownership interest in or participates in the management or control of the successor's trade or business; and
        3. For purposes of this subdivision (b)(2)(C), “relative” means spouse, child, stepchild, adopted child, grandchild, son-in-law, daughter in-law, parent, step-parent, parent-in-law, grandparent, brother, sister, half brother, half sister, step-brother, step-sister, brother-in-law, sister-in-law, aunt, uncle, nephew and niece.
      2. If, following a transfer of experience under subdivision (b)(2)(C), the administrator, pursuant to the factors in subdivision (b)(2)(F), determines that a substantial purpose of the transfer of trade or business was to obtain a reduced liability for premiums, the experience rating factors of the employers involved shall be combined into a single account and a single premium rate assigned to the account as of the date of the transfer.
      3. If a person or employing unit is not an employer under this chapter at the time the person or employing unit acquires the trade or business of an employer, the unemployment experience of the acquired business shall not be transferred to the person or employing unit, if the administrator, pursuant to the factors in subdivision (b)(2)(F), finds that the person or employing unit acquired the business solely or primarily for the purpose of obtaining a lower rate of premiums. Instead, the person or employing unit shall be assigned the applicable new employer rate under subdivision (b)(1)(B).
      4. In determining whether a business was acquired, or a transfer of a trade or business, or portion of a trade or business, was made solely or primarily or substantially for the purpose of obtaining a lower rate of premiums, the administrator shall use objective factors, which may include the cost of acquiring the business, whether the person or employing unit continued the business enterprise of the acquired business, how long the business enterprise was continued, or whether a substantial number of new employees were hired for performance of duties unrelated to the business activity conducted prior to acquisition.
      5. Enforcement.  Any person or employing unit that knowingly violates or attempts to violate this section, or knowingly advises another person or employing unit to violate this section, shall be subject to the following penalties and punishments:
        1. Both the predecessor and successor employers:
          1. Shall be assigned the applicable premium rate under the laws of this chapter, and shall immediately owe the department the difference between the premiums determined by the applicable premium rate and the premiums actually paid, plus any interest due as provided in § 50-7-404(a); and
          2. Shall pay, in addition to their applicable premium rate, a penalty rate of two percent (2%) of the taxable payroll for each quarter, beginning on the date of the infraction and continuing throughout the three (3) premium rate years following the first July 1 after the date on which the department made the determination of the infraction. Revenue from the penalty rate shall be deposited into the unemployment compensation special administrative fund, established under § 50-7-503, and shall not be included in the determination of an employer's reserve ratio as provided in subdivision (b)(1)(A);
        2. Any person found in violation of this section, against whom the penalties as set forth in subdivision (b)(2)(G)(i) are not enforceable, is subject to a civil money penalty of not more than fifty thousand dollars ($50,000). In making the assessment, the administrator shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person or employing unit charged, the gravity of the violation, the good faith of the person or employing unit, and the person or employing unit's history of previous violations. The penalty shall be deposited in the unemployment compensation special administrative fund, established under § 50-7-503; and
        3. In addition to the penalties imposed by subdivisions (b)(2)(G)(i) and (ii), any violation of this subdivision (b)(2) may be prosecuted as a Class A misdemeanor under title 40, chapter 35.
      6. For purposes of this subdivision (b)(2):
        1. “Knowingly” means having actual knowledge of or acting with deliberate ignorance or reckless disregard for the prohibition involved;
        2. “Violates or attempts to violate” means, but is not limited to, intent to evade, misrepresentation or willful nondisclosure; and
        3. “Person” has the meaning given that term by § 7701(a)(1) of the Internal Revenue Code of 1986, codified in 26 U.S.C. § 7701(a)(1).
      7. The administrator shall establish procedures to identify the transfer or acquisition of a business for purposes of this subdivision (b)(2).
      8. This subdivision (b)(2) shall be interpreted and applied in a manner that meets the minimum requirements contained in any guidance or regulations issued by the United States department of labor.
      9. As provided in § 62-43-113(b)(2)(A)(ii)(b ) [repealed] of the Tennessee Employee Leasing Act, a staff leasing company shall not be considered a successor employer, within the meaning of this section, to any client and shall not acquire the experience history of any client with whom there is not any common ownership, management or control. Upon terminating the relationship with the staff leasing company, the client shall not be considered a successor employer, within the meaning of this chapter, to the staff leasing company and shall not acquire any portion of the experience history of the aggregate reserve account of the staff leasing company with whom there is not any common ownership, management or control.
      10. Nothing in this section shall be construed to authorize or require the refund of any sums lawfully paid into the unemployment compensation fund created by Acts 1936 (1st E.S.), ch. 1, § 9(a), [repealed], and by Acts 1947, ch. 29, § 9(A), as amended, § 6901.9(A) of the Code Supplement of 1950 or by § 50-7-501(a).
  2. Nothing in this section shall be construed to grant any employer, or individuals in any employer's service, or otherwise, prior claim or rights to the amounts paid by the employer into the fund either on behalf of the employer or on behalf of the claimants.
      1. Benefits paid to a claimant for the year 1941 and subsequent years are to be charged to the accounts of the claimant's employers in the base period, the amount of the charges, chargeable to the account of each employer, to be that portion of the total benefits paid the claimant as the wages paid the claimant by the employer in the base period are to the total wages paid the claimant during the claimant's base period for insured work by all the claimant's employers in the base period.
        1. Except as provided in § 50-7-304(b)(2)(D), no employer's account shall be charged hereunder for any benefits paid to a former employee who left the employment of the employer under conditions that result in the imposition of a disqualification under § 50-7-303(a)(1), (a)(2), or (a)(4), or that would have resulted in a disqualification under such subdivision except for a following period of bona fide employment by another employing unit. However, if the employer fails to establish that fact, by submitting the information as the administrator may require, within fifteen (15) calendar days after the date of mailing of written notification by the administrator, that the claimant has first filed a claim for benefits to the last known address of the employer, or within fifteen (15) calendar days after the date the written notification is given to the employer, whichever first occurs, the employer's account will be charged for the benefit payments.
        2. No employer's account shall be charged for any benefits paid to a former employee who left the employer to enter training approved under the Trade Act of 1974; provided, that the work left is not suitable employment as defined under § 236(e) of the Trade Act of 1974, codified in 19 U.S.C. § 2296.
        3. The noncharging provisions referred to in subdivisions (d)(1)(B)(i) and (ii) do not apply to eligible employers who elect to reimburse the state for benefits paid in lieu of premiums, as provided by the federal Unemployment Tax Act, compiled in 26 U.S.C. § 3301 et seq., or this chapter.
        1. Benefits paid to an individual who, during the individual's base period, was paid wages for part-time employment with an employer shall not be used as a factor in determining the future premium rate of the employer if the employer continues to give employment to the claimant to the same extent while the claimant is receiving benefits as during the base period. However, if the employer fails to establish that fact, by submitting information the administrator requires, within fifteen (15) calendar days after the date of mailing of written notification by the administrator, that the claimant has first filed a claim for benefits to the last known address of the employer or within fifteen (15) calendar days after the date the written notice is given to the employer, whichever first occurs, the employer's account will be charged for the benefit payments.
        2. The noncharging provision referred to in subdivision (d)(1)(C)(i) does not apply to eligible employers who elect to reimburse the state for benefits paid in lieu of premiums, as provided by the federal Unemployment Tax Act, compiled in 26 U.S.C. § 3301 et seq., or this chapter.
    1. One-half (½) of extended benefits paid to a claimant for the year 1971 and subsequent years are to be charged to the accounts of the claimant's employers in the base period in the same manner provided for the charging of regular benefits with respect to calendar year 1941 and subsequent years hereinbefore set forth.
    2. Benefits paid based on wage credits that are required to be transferred from the state under the wage combining plan referred to in § 50-7-706(a) may not be noncharged except to the extent permitted by both this chapter and the federal Unemployment Tax Act, compiled in 26 U.S.C. § 3301 et seq.
    3. Notwithstanding any other provisions of this chapter, no employer's experience rating account shall be charged, and no employer shall be liable for payments in lieu of premiums, with respect to any benefits or extended benefits that are reimbursed to the state by the federal government.
    4. Unemployment insurance benefits paid to claimants for unemployment that is directly caused by a major natural disaster declared by the president of the United States pursuant to the Disaster Relief Act of 1974 and the Disaster Relief and Emergency Assistance Amendments of 1988 will not be charged to the account of any base-period premium paying employer of the individuals, if the individuals would have been eligible for disaster unemployment assistance with respect to that unemployment but for their receipt of unemployment insurance benefits.
    5. Any employer that elects to make payments in lieu of premiums into the unemployment compensation fund as provided in this subdivision (d)(6) shall not be liable to make the payments with respect to the benefits paid to any claimant whose base-period wages include wages for previously uncovered services, as defined in § 50-7-213, to the extent that the unemployment compensation fund is reimbursed for the benefits pursuant to § 121 of Pub. L. No. 94-566, entitled the Unemployment Compensation Amendments of 1976.
    6. Benefits paid to any claimant whose base-period wages include wages for previously uncovered services, as defined in § 50-7-213, shall not be charged to any taxpaying employers (premium paying employers as distinguished from the employers that are eligible to elect and who do elect to make reimbursement payments in lieu of premiums) account to the extent that the unemployment compensation fund is reimbursed for the benefits pursuant to § 121 of Pub. L. No. 94-566, entitled the Unemployment Compensation Amendments of 1976.

      [Effective until January 1, 2021.]

    7. Notwithstanding subdivision (d)(1)(A), the commissioner, in the commissioner's sole discretion, may authorize, in whole or in part, a noncharge to the account of a contributory employer that is in the claimant's base period for any unemployment benefits paid to a claimant as a result of the COVID-19 pandemic and its effects, in accordance with 42 U.S.C. § 1103(h)(3)(B), as enacted in the Families First Coronavirus Response Act.
  3. The standard rate of premiums payable shall be five and one half percent (5.5%) with respect to nongovernmental employers and one and one half percent (1.5%) with respect to governmental employers, except as provided in this section.
  4. In the event that the division of employment security has not received before April 1 reports giving the necessary payroll information to determine an employer's reserve ratio applicable for the next premium rate year, the taxable payroll of the most recent calendar year in which the employer submitted all reports due with an increase of fifty percent (50%) will be used in computing the reserve ratio applicable for the next premium rate year if the employer has a plus reserve on the most recent computation date. For those employers with a minus reserve as of the most recent computation date, the payroll of the most recent calendar year in which the employer submitted all reports will be reduced by fifty percent (50%). However, no employer with a zero (0) or plus reserve will be assigned a rate based on a minus reserve, and no employer with a minus reserve will be assigned a rate greater than the highest rate in the applicable premium table set forth in subsection (g).
  5. Variations from the standard rate of premiums for employers other than those referred to in § 50-7-207(b)(3)(A) and (B) shall be determined, beginning January 1, 2009, by the reserve ratio of each employer in accordance with premium rate chart for nongovernmental employers tables 1, 2, 3, 4, 5 or 6 as set forth in this subsection (g), depending on the provisions of subsection (j);  provided, however, that beginning January 1, 2009, there shall be imposed an additional premium of six-tenths of one percent (0.6%) on all rates in tables 1, 2 and 3, until such time as the unemployment trust fund balance equals or exceeds six hundred fifty million dollars ($650,000,000), as determined in accordance with subsection (j), at which time such additional premium shall expire.

    PREMIUM RATE CHART FOR NONGOVERNMENTAL EMPLOYERS Reserve Ratio Percent Premium Table 1 Trust Fund under $450 Million Premium Table 2 Trust Fund $450 to under $525 million Premium Table 3 Trust Fund $525 to under $650 million Premium Table 4 Trust Fund $650 to under $750 million Premium Table 5 Trust Fund $750 to under $850 million Premium Table 6 Trust Fund $850 million and over 20.0 and over 0.50 0.45 0.40 0.30 0.15 0.01 18.0 and less than 20.0 0.70 0.65 0.55 0.35 0.20 0.05 16.0 and less than 18.0 0.90 0.70 0.65 0.40 0.25 0.10 14.0 and less than 16.0 1.10 0.75 0.70 0.45 0.32 0.17 12.0 and less than 14.0 1.30 1.20 1.00 0.50 0.40 0.25 11.0 and less than 12.0 1.60 1.40 1.20 0.75 0.60 0.30 9.5 and less than 11.0 2.10 1.80 1.50 1.00 0.80 0.50 8.0 and less than 9.5 2.50 2.10 1.80 1.20 1.00 0.70 7.0 and less than 8.0 2.90 2.50 2.10 1.50 1.30 1.00 6.0 and less than 7.0 3.30 2.80 2.40 1.80 1.60 1.30 5.0 and less than 6.0 3.80 3.20 2.65 2.10 1.90 1.60 2.7 and less than 5.0 4.10 3.50 3.00 2.40 2.20 1.90 0.0 and less than 2.7 4.50 3.90 3.30 3.00 2.60 2.30 Less than 0.0 and more  than -2.0 5.00 5.00 5.00 5.00 5.00 5.00 -2.0 and more than -4.0 5.50 5.50 5.50 5.50 5.50 5.50 -4.0 and more than -6.0 6.00 6.00 6.00 6.00 6.00 6.00 -6.0 and more than -8.0 6.50 6.50 6.50 6.50 6.50 6.50 -8.0 and more than -10.0 7.00 7.00 7.00 7.00 7.00 7.00 -10.0 and more than -12.0 7.50 7.50 7.50 7.50 7.50 7.50 -12.0 and more than -14.0 8.00 8.00 8.00 8.00 8.00 8.00 -14.0 and more than -16.0 8.50 8.50 8.50 8.50 8.50 8.50 -16.0 and more than -18.0 9.00 9.00 9.00 9.00 9.00 9.00 -18.0 and more than -20.0 9.50 9.50 9.50 9.50 9.50 9.50 -20.0 and under 10.00 10.00 10.00 10.00 10.00 10.00

    Click to view PREMIUM RATE CHART FOR NONGOVERNMENTAL EMPLOYERS

    Variations from the standard rate of contributions for governmental employers referred to in § 50-7-207(b)(3)(A) and (B) shall be determined by the reserve ratio of each governmental employer in accordance with the premium rate chart for governmental employers set forth below.

    PREMIUM RATE CHART FOR GOVERNMENTAL EMPLOYERS

    Reserve Ratio Percent Premium Rate Percent

    8.0 and over       0.3

    7.0 and less than 8.0   0.4

    6.0 and less than 7.0   0.6

    5.0 and less than 6.0   0.8

    4.0 and less than 5.0   1.0

    3.0 and less than 4.0   1.2

    2.0 and less than 3.0   1.4

    1.5 and less than 2.0   1.5

    1.0 and less than 1.5   1.6

    0.5 and less than 1.0   1.7

    0.0 and less than 0.5   1.8

    Less than 0.0 and more than -3.5            2.0

    -3.5 and more than -7.0  2.2

    -7.0 and more than -10.0  2.4

    -10.0 and more than -13.0                2.7

    -13.0 and under     3.0

  6. Benefits paid to employees of nonprofit organizations shall be financed in accordance with this subsection (h). For the purpose of this subsection (h), a nonprofit organization is an organization, or group of organizations, described in § 501(c)(3) of the Internal Revenue Code, compiled in 26 U.S.C. § 501(c)(3), that is exempt from income tax under § 501(a) of the Internal Revenue Code, codified in 26 U.S.C. § 501(a).
    1. Any nonprofit organization that, pursuant to § 50-7-205(5) is, or becomes, subject to this chapter on or after January 1, 1972, shall pay premiums under §§ 50-7-401, 50-7-402 and this section, unless it elects, in accordance with this subdivision (h)(1), to pay to the administrator for the unemployment fund an amount equal to the amount of regular benefits and of one half (½) of the extended benefits paid, that is attributable to service in the employ of the nonprofit organization, to claimants for weeks of unemployment that begin during the effective period of the election.
      1. Any nonprofit organization that becomes subject to this chapter after January 1, 1972, may elect to become liable for payments in lieu of premiums for a period of not less than twelve (12) months ending with a taxable year and beginning with the date on which the subjectivity begins by filing a written notice of its election with the administrator not later than thirty (30) days immediately following the date of the determination of the subjectivity.
      2. Any nonprofit organization that makes an election in accordance with subdivision (h)(1)(A) will continue to be liable for payments in lieu of premiums until it files with the administrator a written notice terminating its election not later than thirty (30) days prior to the beginning of the taxable year for which the termination first becomes effective.
      3. Any nonprofit organization that has been paying premiums under this chapter for a period subsequent to January 1, 1972, may change to a reimbursable basis by filing with the administrator, not later than thirty (30) days prior to the beginning of any taxable year, a written notice of election to become liable for payments in lieu of premiums. The election shall not be terminable by the organization for that taxable year and the next taxable year.
      4. The administrator may, for good cause, extend the period within which the notice of election, or a notice of termination, must be filed and may permit an election to be retroactive, but not any earlier than with respect to benefits paid after December 31, 1969.
      5. The administrator, in accordance with regulations the commissioner prescribes, shall notify in writing each nonprofit organization of any determination that the administrator may make of its status as an employer and of the effective date of any election that it makes and of any termination of the election. The determinations shall be subject to review and redetermination in accordance with § 50-7-404(h).
      6. For the purposes of this subsection (h), “taxable year” means the period beginning January 1, 1972, through June 30, 1973, and thereafter the period beginning July 1 and extending through June 30 of the following year.
    2. Payments in lieu of premiums shall be made in accordance with this subdivision (h)(2), including either subdivision (h)(2)(A) or (B), which follows:
      1. At the end of each calendar quarter, or at the end of any other period as determined by the administrator, the administrator shall bill each nonprofit organization, or group of organizations, that has elected to make payments in lieu of premiums for an amount equal to the full amount of regular benefits, plus one-half (½) of the amount of extended benefits paid during the quarter or other prescribed period that is attributable to service in the employ of the organization; or
        1. Each nonprofit organization that has elected payments in lieu of premiums may request permission to make the payments as provided in this subdivision (h)(2). The method of payment shall become effective upon approval by the administrator;
        2. At the end of each calendar quarter, or at the end of such other period as determined by the administrator, the administrator shall bill each nonprofit organization for an amount representing one (1) of the following:
          1. For years after 1972, the percentage of its total payroll for the immediately preceding calendar year that the administrator determines. The determination shall be based each year on the average benefit costs attributable to service in the employ of nonprofit organizations during the preceding calendar year; or
          2. For any organization that did not pay wages throughout the four (4) calendar quarters of the preceding calendar year, the percentage of its payroll during the year that the administrator determines;
        3. At the end of each taxable year, the administrator may modify the quarterly percentage of payroll thereafter payable by the nonprofit organization in order to minimize excess or insufficient payments;
        4. At the end of each taxable year, the administrator shall determine whether the total of payments for the year made by a nonprofit organization is less than, or in excess of, the total amount of regular benefits, plus one-half (½) of the amount of extended benefits paid to claimants during the taxable year based on wages attributable to service in the employ of the organization. Each nonprofit organization whose total payments for the year are less than the amount so determined shall be liable for payment of the unpaid balance to the fund in accordance with subdivision (h)(2)(C). If the total payments exceed the amount so determined for the taxable year, all or a part of the excess may, at the discretion of the administrator, be refunded from the fund or retained in the fund as part of the payments that may be required for the next taxable year.
      2. Payment of any bill rendered under subdivision (h)(2)(A) or (h)(2)(B) shall be made not later than thirty (30) calendar days after the date the bill is mailed to or given to the organization, whichever occurs first, unless the organization has timely filed with the division of employment security a written application for review and redetermination in accordance with § 50-7-404(h);
      3. Payments made by any nonprofit organization under this subsection (h) shall not be deducted or deductible, in whole or in part, from the remuneration of individuals in the employ of the organization;
      4. The amount due specified in any bill shall be conclusive on the organization, unless the organization has timely filed with the division of employment security a written application for review and redetermination in accordance with § 50-7-404(h); and
      5. Past-due payments of amounts in lieu of premiums shall be subject to the same interest and penalties that, pursuant to § 50-7-404, apply to the past-due premiums.
    3. If any nonprofit organization is delinquent in making payments in lieu of premiums as required under subdivision (h)(2), the administrator may terminate the organization's election to make payments in lieu of premiums as of the beginning of the next taxable year, and the termination shall be effective for that and the next taxable year.
    4. Each employer that is liable for payments in lieu of premiums shall pay to the administrator for the fund the amount of regular benefits, plus the amount of one-half (½) of extended benefits paid that are attributable to service in the employ of the employer. If benefits paid to a claimant are based on wages paid by more than one (1) employer and one (1) or more of the employers are liable for payments in lieu of premiums, the amount payable to the fund by each employer that is liable for the payments shall be determined in accordance with subdivision (h)(4)(A) or (h)(4)(B):
      1. Proportionate allocation, when fewer than all base-period employers are liable for reimbursement.  If benefits paid to a claimant are based on wages paid by one (1) or more employers who are liable for payments in lieu of premiums and on wages paid by one (1) or more employers who are liable for premiums, the amount of benefits payable by each employer that is liable for payments in lieu of premiums shall be an amount that bears the same ratio to the total benefits paid to the individual as the total base-period wages paid to the claimant by the employer bear to the total base-period wages paid to the claimant by all of the claimant's base-period employers; or
      2. Proportionate allocation, when all base-period employers are liable for reimbursement.  If benefits paid to a claimant are based on wages paid by two (2) or more employers that are liable for payments in lieu of premiums, the amount of benefits payable by each employer shall be an amount that bears the same ratio to the total benefits paid to the claimant as the total base-period wages paid to the claimant by the employer bear to the total base-period wages paid to the claimant by all of the claimant's base-period employers.
        1. Two (2) or more employers that have become liable for payments in lieu of premiums, in accordance with subdivision (h)(1), may file a joint application to the administrator for the establishment of a group account for the purpose of sharing the cost of benefits paid that are attributable to service in the employ of the employers.
        2. Each application shall identify and authorize a group representative to act as the group's agent for the purposes of this subdivision (h)(5).
        3. Upon the administrator's approval of the application, the administrator shall establish a group account for the employers effective as of the beginning of the calendar quarter in which the administrator receives the application and shall notify the group's representative of the effective date of the account.
        4. The account shall remain in effect for not less than two (2) years and thereafter until terminated at the discretion of the administrator or upon application by the group.
        5. Upon establishment of the account, each member of the group shall be liable for payments in lieu of premiums with respect to each calendar quarter in the amount that bears the same ratio to the total benefits paid in the quarter that are attributable to service performed in the employ of all members of the group as the total wages paid for service in employment by the member in the quarter bear to the total wages paid during the quarter for service performed in the employ of all members of the group.
        6. The commissioner shall prescribe regulations the commissioner deems necessary with respect to applications for establishment, maintenance and termination of group accounts that are authorized by this subdivision (h)(5)(A), for addition of new members to, and withdrawal of active members from, the accounts, and for the determination of the amounts that are payable under this subdivision (h)(5)(A) by members of the group and the time and manner of the payments.
      1. For the purpose of this chapter, this state, the different designated entities of this state, and each of its political subdivisions are regarded as individual governmental entities, and each governmental entity is individually accorded the option of electing to pay premiums or make payments in lieu of premiums to the full extent provided in this section.
      2. Insofar as these governmental employers are concerned and insofar as newly covered nonprofit organizations becoming liable as a result of this chapter on or after January 1, 1978, are concerned, “taxable year” means the period beginning January 1, 1978, through June 30, 1979, and thereafter the period beginning July 1 and extending through June 30 of the following year; provided, that any employing unit becoming an employer as a result of § 50-7-205(4) (state and local governmental entities) is liable to pay premiums as set forth in this chapter, unless it elects in accordance with this section to pay to the administrator for the unemployment fund, an amount equal to the amount of regular benefits and the amount of extended benefits paid that are attributable to service in the employ of the governmental employer to claimants for weeks of unemployment that begin during the effective period of the election with the exception of benefits or extended benefits reimbursed to the state by the federal government pursuant to applicable law.
  7. State-owned institutions of higher education and state-owned hospitals that are employers under § 50-7-205(4) are accorded the same options relating to the payment of premiums or reimbursement for benefits paid as those accorded nonprofit organizations under subsection (h).
    1. The administrator shall, on June 30 and December 31 of each year, make and publish findings as to the balance in the unemployment compensation trust fund. The balance the administrator finds in the trust fund shall determine the appropriate premium table applicable for the subsequent six-month period as to all employers who qualify under subdivision (b)(1) for a premium rate based on subdivision (b)(1)(A).
    2. This section shall not apply to those employers referred to in § 50-7-207(b)(3)(A) and (B).
  8. As used in this chapter:
    1. “Computation date” means December 31 of each calendar year with respect to rates of premiums applicable for the twelve-month period beginning with the following July 1;
    2. “Premium rate year” means the period of time beginning July 1 of any year and ending on June 30 of the succeeding year; and
    3. “Taxable payroll” means the total amount of taxable wages paid for employment by an employer during a twelve-month period ending on December 31.
  9. The administrator shall promptly notify each employer of the employer's rate of premiums as determined for any period pursuant to this section, and shall also provide for periodic notification to each employer of benefits paid and chargeable to the employer's account, or the status of the employer's account, and the administrator shall further make rules and regulations necessary to make this section effective.
    1. If the administrator finds that an employer's business is closed solely because of the entrance of one (1) or more of the owners, officers, partners, or the majority stockholder, into the armed forces of the United States or of any of its allies, or of the United Nations, after July 1, 1950, the employer's account shall not be terminated; and, if the business is resumed within two (2) years after the discharge or release from active duty in the armed forces of that person or persons, the employer's experience shall be deemed to have been continuous throughout the period.
    2. The reserve ratio of the employer shall be the total premiums paid by the employer, minus all benefits, including benefits paid to any claimant during the period such employer was in the armed forces, based upon the wages paid by the employer prior to the employer's entrance into the forces, divided by the employer's average taxable payroll for the three (3) most recent calendar years ending on the computation date during the whole of which respectively the employer has been in business.
    3. This subsection (m) does not authorize cash refunds; any adjustments required under this subsection (m) shall be only by credit against premiums due or to be due by the employer.
    1. Any premium rate determination rendered with respect to an employer pursuant to this chapter shall be final and conclusive upon the employer for all purposes and in all proceedings whatsoever unless the employer has timely filed with the division of employment security a written application for review and redetermination in accordance with § 50-7-404(h).
    2. Subdivision (n)(1) does not change any cutoff dates as set forth in other sections of the law for filing reports or claims for refund giving the information necessary for computation of rates.

Acts 1947, ch. 29, § 7; C. Supp. 1950, § 6901.7 (Williams, § 6901.31); Acts 1951, ch. 139, §§ 6-8; 1953, ch. 244, § 5; modified; Acts 1955, ch. 115, § 11; 1957, ch. 146, § 9; 1959, ch. 160, § 3; 1959, ch. 202, §§ 8, 9; 1961, ch. 70, § 4; 1963, ch. 176, § 5; 1965, ch. 183, §§ 4, 5; 1967, ch. 208, § 4; 1969, ch. 32, § 3; 1970, ch. 397, § 3; 1971, ch. 132, §§ 3, 4; 1971, ch. 204, §§ 6-8; 1973, ch. 130, § 8; 1974, ch. 460, §§ 7-9; 1975, ch. 190, § 8; 1977, ch. 330, §§ 21-25; 1978, ch. 744, §§ 10-12; 1980, ch. 641, §§ 3, 4; 1980, ch. 783, §§ 3-6; 1982, ch. 820, §§ 8-14; T.C.A. (orig. ed.), § 50-1328; Acts 1983, ch. 439, §§ 4-8; 1984, ch. 701, § 4; 1984, ch. 702, § 3; 1985, ch. 317, §§ 1, 7-10; 1985, ch. 318, §§ 44-57; 1986, ch. 597, §§ 4-8; 1987, ch. 148, § 7; 1989, ch. 333, §§ 4, 5; 1989, ch. 388, §§ 7-12; 1992, ch. 694, §§ 8-10; 1993, ch. 194, §§ 18-26; 1993, ch. 305, §§ 2-4; 1995, ch. 239, §§ 3, 4; 1996, ch. 916, §§ 1-3; 1998, ch. 1110, §§ 1-3; 1999, ch. 520, § 41; 2001, ch. 379, §§ 1-3; 2004, ch. 510, §§ 1-3; 2004, ch. 927, §§ 1-3; 2004, ch. 946, § 2; 2005, ch. 357, §§ 2-9; 2006, ch. 623, §§ 1-4; 2007, ch. 197, § 1; 2009, ch. 550, §§ 8-12; 2014, ch. 762, § 1; 2020, ch. 745, § 3.

Compiler's Notes. Acts 1936 (E.S.), ch. 1, referred to in this section, was repealed by Acts 1947, ch. 30, § 1.

Acts 1947, ch. 29, § 9(A) and § 6901.9 of the Code Supplement of 1950, referred to in this section are codified at § 50-7-501.

The Trade Act of 1974, referred to in this section, is codified at U.S.C. titles 5, 19 and 31.

For the Disaster Relief Act of 1974 and the Disaster Relief and Emergency Assistance Amendments of 1988, referred to in this section, see 42 U.S.C. § 5121 et seq.

Pub. L. No. 94-566, entitled the Unemployment Compensation Amendments of 1976, referred to in this section, is codified primarily in 5 U.S.C. ch. 85, 26 U.S.C. ch. 23, and 42 U.S.C. ch. 7. For present comparable provisions, see § 62-43-109. Section 121 of that act may be found as a note to 26 U.S.C. § 3304 (Federal reimbursement for benefits paid to newly covered workers during transition period).

Section 62-43-113 and the Tennessee Employee Leasing Act, referred to in this section, were repealed by Acts 2012, ch. 1081, § 1.

Acts 2014, ch. 762, § 2 provided that the commissioner is authorized to promulgate rules to effectuate the purposes of this act, which added subdivision (b)(1)(B)(iii). All such rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2020, ch. 745, § 4 provided that act section 3, which added subdivision (d)(8), is repealed on January 1, 2021.

Amendments. The 2014 amendment added (b)(1)(B)(iii).

The 2020 amendment added (d)(8).

Effective Dates. Acts 2014, ch. 762, § 3. July 1, 2014.

Acts 2020, ch. 745, § 4. June 22, 2020.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Law Reviews.

Mass Tort Litigation in Tennessee (Paul Campbell, III and Hugh J. Moore, Jr.), 53 Tenn. L. Rev. 221 (1986).

NOTES TO DECISIONS

1. Effect of Rating on Benefits.

Employees who received severance pay in accordance with terms of labor contract when plant was permanently closed would not be denied unemployment benefits on theory that this constituted a double burden on the employer and that rates charged under this section would thereby have to be adjusted upward. Balding v. Tennessee Dep't of Employment Sec., 212 Tenn. 517, 370 S.W.2d 546, 1963 Tenn. LEXIS 445 (1963).

2. Assessment.

Taxpayer violated T.C.A. § 50-7-403(b)(4) because it failed to provide notice of its mergers, acquisitions, and transfers of taxable payroll. ARI, Inc. v. Neeley, — S.W.3d —, 2012 Tenn. App. LEXIS 543 (Tenn. Ct. App. Aug. 3, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 947 (Tenn. Dec. 14, 2012).

Taxpayer violated T.C.A. § 50-7-403(b)(5)(A) because it effectuated payroll transfers between business entities which it owned for the primary purpose of obtaining a more favorable premium rate. ARI, Inc. v. Neeley, — S.W.3d —, 2012 Tenn. App. LEXIS 543 (Tenn. Ct. App. Aug. 3, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 947 (Tenn. Dec. 14, 2012).

Collateral References.

Trucker as employee or independent contractor for purposes of unemployment compensation. 2 A.L.R.4th 1219.

Unemployment compensation: right of successor in business to experience or rating of predecessor for purpose of fixing rate of contribution. 22 A.L.R.2d 673.

50-7-404. Collection of premiums — Interest — Procedure when employer in default — Priorities — Adjustments — Refunds.

  1. Interest on Past-Due Premiums.  Premiums unpaid on the date on which they are due and payable, as prescribed by the commissioner, shall bear interest at the rate of  one percent (1.0%) prior to July 1, 1983, and one and one-half percent (1.5%) thereafter, for each month or any portion of a month from and after that date until payment plus accrued interest is received by the commissioner. Interest collected pursuant to this subsection (a) shall be paid into the unemployment compensation special administrative fund.
  2. Collection.
    1. If, after due notice, any employer defaults in any payment of premiums, interest on premiums, penalties, or costs prescribed in this chapter, the amount due, including additionally incurred premiums, interest, penalties and costs, shall be a lien in favor of the department of labor and workforce development upon the assets of the employer. The lien shall commence upon the date the premiums, interest, or penalties become due and shall continue until the original and any subsequent premiums, interest, penalties, costs or assessments are paid in full. The lien shall attach to all interest in property either real or personal, tangible or intangible, in this state then owned, or subsequently acquired by the employer, and shall be enforced by original attachment issued by any court having jurisdiction of the amount claimed to be due, as provided by § 66-21-101. The definition of “assessment” is provided for in subdivisions (c)(1)-(3).
      1. The commissioner shall cause a notice of the lien to be recorded in the office of the county register of deeds in the county or counties in which the employer's business or residence is located, or in any county in which the employer has an interest in property. The notice shall be recorded in the same manner as liens recorded in that office. Recordation shall constitute notice of both the original and all subsequent liabilities of the same taxpayer.
      2. There shall be no fees collected by the county register at the time the notice is recorded, but the county register shall extend credit to the department for the fees that are chargeable and submit the county register's bill at the end of each month to the department in order to obtain payment.
      3. The lien created in this chapter shall have the same priority, in relation to other liens and security interests created under Tennessee law, as the lien described in § 67-1-1403.
      4. Any lien of record in favor of the Tennessee department of employment security shall inure to the Tennessee department of labor and workforce development as a successor in interest to the Tennessee department of employment security by virtue of the Tennessee Workforce Development Act of 1999, compiled in title 4, chapter 3, part 14.
      1. In addition to the remedy provided for in subdivision (b)(2), it is further expressly provided as follows: if after due notice, any employer defaults in payment of premiums or interest on the premiums, the amount due may be collected by civil action in the name of the commissioner, and the employer adjudged in default shall pay the costs of the action; furthermore, and in addition to all other remedies delineated in subdivision (b)(2), the commissioner is expressly authorized to issue, under the commissioner's hand and seal, a distress warrant against the delinquent employer for the amount of the premiums and any interest on the premiums that may be due and unpaid as of the date of the issuance.
      2. The distress warrant shall be returnable within thirty (30) days from its date and shall have the same effect as other distress warrants authorized by law for the collection of delinquent taxes or revenue owed to the state or any agency of the state.
      3. Civil actions brought under this section to collect premiums or interest on the premiums from an employer shall be heard by the court at the earliest possible date and shall be entitled to preference upon the calendar of the court over all other civil actions except cases involving the Workers' Compensation Law, compiled in chapter 6 of this title, or state revenue.
      4. The collection of all premiums shall be barred and any lien for the premiums shall be cancelled and extinguished, unless the premiums are collected or suit for the collection has been instituted within six (6) years from the due date of the premiums as prescribed by the commissioner; however, the period of limitations on collection of premiums or interest on the premiums shall be suspended for the period the assets of the employer are in control or custody of the court in any proceeding before any court of the United States or of any state, as defined in § 50-7-210, and six (6) months thereafter.
    2. Distress warrants issued under the authority of this chapter for the collection of premiums, payments in lieu of premiums, interest or penalties arising out of this chapter may, in the discretion of the commissioner, be addressed to and delivered to an employee or representative of the department for the purpose of execution, and the employee or representative shall have the same power and authority as a sheriff for the purpose of levying and executing the distress warrant. The employee or representative shall be entitled to the same fees and costs as would accrue to a sheriff for those services. The fees and costs shall be paid to the department for return to the United States department of labor as miscellaneous receipts.
      1. If the commissioner or the commissioner's delegate determines that the collection of premiums under this title will be jeopardized by delay, the commissioner shall, whether or not premiums accrued have become due, immediately assess the premiums together with all interest, penalties, and costs.
      2. The amount of the assessment shall then become immediately due and payable, and immediate notice and demand shall be made by the commissioner or the commissioner's delegate for the payment of the assessment.
    3. The employees or representatives shall not be subject to civil suit as a result of performing or attempting to perform the duties specified in this subsection (b).
      1. In addition to any remedies authorized by this chapter, the department may offset any covered unemployment compensation debt due to the department against any federal income tax refund due to the department’s taxpayer debtor in accordance with § 6402 of the Internal Revenue Code, codified in 26 U.S.C. § 6402, and the federal Treasury Offset Program, compiled in 31 CFR part 285, or any successor program.
      2. The department may exercise this right of setoff if the obligation of the debtor was the result of:
        1. Past due contributions due to the state's unemployment fund that remain uncollected and the state has determined the taxpayer debtor to be liable for those contributions; or
        2. Any penalties and interest assessed by the department on a debt contemplated by this subdivision (b)(7).
      3. Any fee or administrative expense imposed by the United States department of the treasury or the United States department of labor in connection with such offset shall be the responsibility of the debtor.
      4. Following such offset, the amount of credit to which a debtor is entitled shall not exceed the amount of the credit received by the department.
  3. Failure to Make Reports and Pay Premiums; Duty and Power of the Commissioner.
    1. If any employing unit fails to make and file any report as and when required by the terms and provisions of this chapter, or by any rule or regulation of the commissioner, for the purpose of determining the amount of premiums due by the employing unit under this chapter, or if any report that has been filed is deemed by the commissioner to be incorrect or insufficient, and the employing unit after having been mailed written notice, to its last known address, by the commissioner to file the report, or a corrected or sufficient report, as the case may be, shall fail to file the report within thirty (30) days after the date of the filing of the notice, the commissioner may:
      1. Determine the amount of premiums due from the employing unit on the basis of the information that may be readily available to the commissioner, which determination shall be prima facie correct;
      2. Assess the employing unit with the greater of the amount of premiums so determined or fifty dollars ($50.00); and
      3. Immediately give written notice, by certified mail, to the employing unit of the determination, assessment and damages, if any, added and assessed, demanding payment of the assessment and damages, together with interest and penalty, as herein provided on the amount of premiums from the date when the premiums were due and payable.
    2. The determination and assessment shall be final and conclusive on the employing unit thirty (30) calendar days after the date of mailing of written notice of the determination and assessment to the last known address of the employing unit, or not later than thirty (30) calendar days after the date the written notice is given to the employing unit, whichever first occurs, unless the employing unit has timely filed with the department a written application for review and redetermination in accordance with subsection (h). Any premium or deficiencies in premiums found to be due by the department in the redetermination shall be assessed and paid, together with interest, penalty and assessed damages, if any, within fifteen (15) calendar days after the date of mailing of written notice of the redetermination and assessment and demand for payment of the assessment by the department to the last known address of the employing unit, or not later than fifteen (15) calendar days after the date the written notice is given to the employing unit, whichever first occurs. Any employer who neglects or refuses to file a quarterly wage report and a quarterly premium report, or who intentionally files an incomplete quarterly wage report or an incomplete quarterly premium report within the time required by this chapter, or by any rule or regulation of the commissioner, shall pay a penalty of ten dollars ($10.00) for each month, or portion of a month, the report is due; however, the total penalty for each report shall not exceed fifty dollars ($50.00).
      1. Except as otherwise provided in subdivision (c)(3)(B), beginning January 1, 2019, and each quarter thereafter, each employer, and every person or organization who reports wages on employees on behalf of one (1) or more subject employers, shall file the wage and premium reports electronically, in a format prescribed by the commissioner.
        1. If the electronic filing requirement imposed by subdivision (c)(3)(A) creates a hardship upon the employer, person, or organization subject to the requirement, the employer, person, or organization may submit an affidavit to the commissioner containing a statement made under the penalty of perjury that the employer, person, or organization would suffer an undue hardship by filing the wage and premium reports electronically, and the commissioner may allow the employer, person, or organization to file the wage and premium reports in a paper format. Any employer, person, or organization, who does not have prior approval to file in a paper format, and who is required to file the reports electronically but neglects or refuses to do so, will be considered to have filed an incomplete wage and premium report and shall be assessed a penalty pursuant to subdivision (c)(2).
        2. The affidavit required by subdivision (c)(3)(B)(i) must be submitted within the first quarter, beginning January 1, 2019, and annually thereafter.
  4. Forfeiture of Right to Do Business Upon Noncompliance.
    1. An employer liable for premiums under this chapter who fails to make and file the employer's returns and reports as required, or who fails to pay any premiums when due under the this chapter, shall forfeit the employer's right to do business in this state until the employer complies with all the provisions of this chapter and until the employer enters into a bond with sureties, to be approved by the commissioner, in an amount not to exceed all contributions estimated to become due by the employer under this chapter for any three-month period, conditioned to comply with this chapter and to pay all premiums legally due or to become due by the employer, and the commissioner may proceed by injunction to prevent the continuance of the business upon the failure by the employer, by applying to a court of competent jurisdiction for an injunction and any temporary injunction enjoining the continuance of the business may be granted after reasonable notice not less than ten (10) days by any judge or chancellor now authorized by law to grant injunctions.
    2. This subsection (d) is to be deemed as cumulative and in addition to any other provisions of this chapter relating to the collection of premiums by the commissioner.
  5. Priorities Under Legal Dissolution or Distributions.  In the event of any distribution of an employer's assets pursuant to an order of any court under the laws of this state, including any receivership, assignment for benefit of creditors, adjudicated insolvency, composition, or similar proceeding, premiums then or thereafter due shall have the same priority as now provided by the state for the payment of debts and taxes due it. In the event of an employer's adjudication in bankruptcy, judicially confirmed extension proposal, or composition, under the federal Bankruptcy Act of 1898 [repealed], premiums then or thereafter due shall be entitled to the priority as is provided in § 64(a) of that act (11 U.S.C. § 104(a)  [repealed]).
  6. Adjustment or Refund.
    1. If, not later than three (3) years after the date of payment of any premium or interest on the premium, an employer who has paid the premium or interest on the premium makes application for an adjustment of the premium in connection with subsequent premium payments, or for a refund of the premiums because the adjustment cannot be made, and the commissioner determines that the premiums or interest, or any portion of the premiums or interest, was erroneously collected, the commissioner shall allow the employer to make an adjustment, without interest, in connection with subsequent premium payments by the employer, or if the adjustment cannot be made, the commissioner shall refund the amount, without interest, from the fund; provided, that when an employer has erroneously paid to this state premiums or interest that should have been paid as contributions or interest under the unemployment compensation law of some other state, or of the United States, the commissioner may refund to the employer the amount of the premium or interest erroneously paid without interest, and without regard to any period of limitation, upon satisfactory proof to the commissioner that the contributions have been paid to the other state, or to the United States; and provided, further, that in no case shall an adjustment or refund be made with respect to premiums paid on wages that have been included in the determination of an eligible claimant for benefits, unless and until it is shown to the satisfaction of the commissioner that the determination was due entirely to the fault or mistake of the department. For like cause, and within the same period, adjustment or refund may be made on the commissioner's own initiative. Any refund of the interest erroneously paid, which was paid into the unemployment compensation special administrative fund provided for in this chapter, shall be refunded from the fund. When an adjustment or refund to any employer has been approved, the experience rating record provided for in § 50-7-403 shall be corrected, but no premium rate assigned to an employer shall be changed as a result of the adjustment or refund unless the application for the refund has been filed on or before the final day of February immediately preceding the premium rate year. Nothing in this subsection (f) shall be construed to deny any refund required under § 50-7-207(c)(1).
    2. Employers lawfully electing to make payments in lieu of premiums shall be entitled to refunds, if:
      1. The commissioner finds that the payment in lieu of premiums was made in error;
      2. If the claim for refund is based on benefits originally paid that were subsequently determined to be improperly paid and the claimant has repaid the commissioner for the benefits; and
      3. The claim for refund has been filed with the commissioner within three (3) years from the date the payment in lieu of premiums was originally made.
  7. Collection of Premiums on Public Contracts.
    1. Any person, firm or corporation entering into a formal contract with the state or any county, municipality or political subdivision, or any public board, department, commission or institution that is a part thereof for construction or maintenance of public buildings, works or projects in which the total contract sum shall equal or exceed one hundred thousand dollars ($100,000) and the time of performance is more than six (6) months, shall notify the department in writing of the name of all subcontractors who will furnish or who are furnishing labor in performance of the contract and whose subcontracts are in the amount of ten thousand dollars ($10,000) or more, the notice to be given not less than thirty (30) days prior to paying the subcontractor the final five percent (5%) of the subcontract; and the contractor shall retain the final five percent (5%) for thirty (30) days following the notice or until there is compliance with subdivision (g)(2).
    2. The department may, within thirty (30) days following the filing of notice pursuant to subdivision (g)(1), notify the contractor of premiums and interest required or believed to be required under this chapter and owed by the subcontractor by reason of performance of the subcontract or any part of the contract, and the contractor shall then, within the limits provided for in subdivision (g)(1), which is five percent (5%) of the subcontract amount, retain the amount claimed to be due by the subcontractor or require that the subcontractor furnish bond for the amount to the department or make such other arrangement for satisfaction of the obligation of the subcontractor as are satisfactory to and protect the rights of the department.
    3. If the contractor fails to give notice as provided in this subsection (g), the contractor will be primarily liable for the obligations of the subcontractor that are described in subdivisions (g)(1) and (2), limited to five percent (5%) of the subcontract amount, and the obligation shall continue for a period of ninety (90) days from the date upon which a request is subsequently filed with the department by the contractor for final determination of the obligation of any subcontractor, or for one (1) year from the date upon which the final payment is received by the contractor from the state, county, municipality, political subdivision or any public board, department, commission or institution that is a part thereof, if notice of the claim is presented by the department within that time to the contractor.
    4. The contractor will not be liable for obligations of the subcontractor unless notice is given by the department as provided in either subdivision (g)(2) or (g)(3).
  8. Redeterminations.  A person may file an application for review and redetermination by the department of certain determinations made by the department under this part only in accordance with the following:
    1. A nonprofit organization or person other than a nonprofit organization may file an application for review and redetermination by the department of:
      1. Any determination made by the department concerning the status of a nonprofit organization as an employer and of which the organization is sent written notice pursuant to § 50-7-403(h)(1)(E);
      2. Any determination made by the department concerning the status of any person other than a nonprofit organization as an employer and of which the person is sent written notice;
      3. Any bill rendered by the department under subdivision (g)(2) with respect to payments in lieu of premiums due from a nonprofit organization and of which the organization is sent written notice pursuant to subdivision (g)(2);
      4. Any determination and assessment of premiums and damages, if any, made by the department under subsection (c) with respect to an employing unit and of which the employing unit is sent written notice pursuant to subsection (c);
      5. Any determination made by the department concerning a premium rate assigned to an employer pursuant to this chapter and of which the employer is sent written notice; or
      6. Any determination of seasonal employer status;
    2. An application for review and redetermination shall be in writing and shall state the reason or reasons that the employer submits justifies a change in the initial determination, bill or assessment;
    3. An application for review and redetermination must be filed with the department within thirty (30) calendar days after the date of mailing of written notice of the initial determination, bill or assessment, to the last known address of the person or not less than thirty (30) calendar days after the date the written notice is given to the person, whichever first occurs. In the absence of timely filing of the application, any determination, bill or assessment described in subdivision (h)(1) shall be final and conclusive on that person; and
      1. In the case of an application for review and redetermination timely and properly filed with the department in accordance with this subsection (h), the department shall review and reconsider the determination, the amount due specified in the bill or the assessment, shall issue a redetermination, and shall notify the person in writing within ninety (90) calendar days after the application for review and redetermination was so filed with the department. The redetermination shall become a final order of the commissioner and not subject to further review, unless an appeal is filed to the appeals tribunal pursuant to § 50-7-304 within twenty (20) calendar days after the date the written notification of the redetermination is given or mailed to the last known address of the interested party;
      2. Any premium, payment in lieu of premiums, deficiencies in premiums, or deficiencies in payments in lieu of premiums found to be due by the department in the redetermination shall be assessed and paid together with interest, penalty and assessed damages, if any, within fifteen (15) calendar days after the date of mailing of written notice of the redetermination and assessment and demand for payment of the assessment by the department to the last known address of the person, or not later than fifteen (15) calendar days after the date the written notice is given to the person, whichever occurs first.
  9. Discharge of Liens.
    1. If the commissioner is not joined as a party, a judgment in any civil action or suit, or a judicial sale pursuant to the judgment with respect to property on which the department has or claims a lien under this title:
      1. Shall be made subject to and without disturbing the lien of the department, if notice of the lien has been filed in the place provided by law for the filing at the time the action or suit is commenced; or
      2. If a judicial sale of property pursuant to a judgment in any civil action or suit to which the department is not a party discharges a lien of the department arising under this title, the department may claim, with the same priority as its lien had against the property sold, the proceeds, exclusive of costs, of the sale at any time before the distribution of the proceeds is ordered.
      1. Notwithstanding subdivision (i)(1), a sale of property on which the department has or claims a lien, or a title derived from enforcement of a lien, under this title, made pursuant to an instrument creating a lien on the property, pursuant to a confession of judgment on the obligation secured by such an instrument, or pursuant to a nonjudicial sale under a statutory lien on the property shall, except as otherwise provided, be made subject to and without disturbing the lien or title, if notice of the lien was filed or the title recorded in the place provided by law for the filing or recording more than thirty (30) days before the sale and the department is not given notice of the sale in the manner prescribed in subdivision (i)(2)(B).
      2. Special Rules.
        1. Notice of Sale.   Notice of sale to which subdivision (i)(2)(A) applies shall be given, in accordance with regulations prescribed by the commissioner, in writing, by registered or certified mail or by personal service, not less than twenty-five (25) days prior to the sale, to the commissioner or the commissioner's delegate.
        2. Consent to Sale.  Notwithstanding the notice requirement of subdivision (i)(1), a sale described in subdivision (i)(2)(A) of the property shall discharge or divert the property of the lien or title of the department if the department consents to the sale of the property free of the lien or title.
        3. Sale of Perishable Goods.  Notwithstanding the notice requirement of this section, a sale described in subdivision (i)(2)(A) of the property liable to perish or become greatly reduced in price or value by keeping, or that cannot be kept without great expense, shall discharge or divert the property of the lien or title of the department if notice of the sale is given, in accordance with regulations prescribed by the commissioner, in writing, by registered or certified mail or by personal service, to the commissioner or the commissioner's delegate before the sale. The proceeds, exclusive of costs, of the sale shall be held as a fund subject to the liens and claims of the department, in the same manner and with the same priority as the liens and claims had with respect to the property sold, for not less than thirty (30) days after the date of the sale.
    2. Right to Redeem.
      1. In the case of real property to which subdivision (i)(2)(A) applies, to satisfy a lien prior to that of the department, the commissioner or the commissioner's delegate may redeem the property within the period allowable for redemption under law.
      2. Amount to be Paid.  In any case in which the department redeems real property pursuant to § 50-7-304(c)(1), the amount to be paid for the property shall be the amount paid by the purchaser, plus six percent (6%) interest per annum.
      3. Certificate of Redemption.
        1. In General.    In any case in which real property is redeemed by the department pursuant to subdivision (i)(3), the commissioner or the commissioner's delegate shall execute a certificate of redemption therefor.
        2. Filing.  The commissioner or the commissioner's delegate shall, without delay, cause the certificate to be duly recorded in the proper registry of deeds.
        3. Effect.  A certificate of redemption executed by the commissioner or the commissioner's delegate shall constitute prima facie evidence of the regularity of the redemption and shall, when recorded, transfer to the department all the rights, title and interest in and to the property acquired by the person from whom the department redeems the property by virtue of the sale of the property.
  10. Revocation of Charter or Authority to Conduct Business for Nonpayment.
    1. The commissioner is empowered to certify to the secretary of state the name of any corporation or limited liability company permitted to conduct business in the state that meets the definition of employer or employing unit for the purposes of this chapter, and that fails or refuses to file any quarterly report or to pay any fees, premiums, penalties or interest required in this chapter; however, no certification shall be issued until the report, fees, premiums, penalties or interest has remained delinquent for a period of ninety (90) days.
    2. At the time of the certification to the secretary of state, the commissioner shall give notice to the corporation or limited liability company of the action taken. Then, in the case of a corporation, the charter of the corporation or its domestication in the state shall stand as automatically revoked and the secretary of state shall note the revocation in its records. In the case of a limited liability company, the secretary of state shall administratively dissolve the limited liability company and shall note the dissolution in its records.
      1. In the case of a corporation, at any time after the date of the revocation, the charter may be reinstated upon the filing of all reports and the payment of all fees, premiums, penalties and interest due the state; and in the case of a limited liability company, the certificate of dissolution may be cancelled upon the filing of all reports and the payment of all fees, premiums, penalties and interest due the state; provided, that the title has not been taken by another corporation or limited liability company, and that proof is furnished sufficient to the commissioner that no third party will be injured by the reinstatement or cancellation, unless proof has been furnished sufficient to the secretary of state upon requesting the reinstatement or cancellation.
      2. A corporation whose charter has been revoked or a limited liability company that has been administratively dissolved pursuant to subdivisions (j)(1) and (2) may apply to the secretary of state for reinstatement or cancellation by presenting a certificate from the commissioner certifying that the corporation or limited liability company has satisfied the requirements set forth in subdivision (j)(3)(A).
  11. A client of a staff leasing company shall be jointly and severally liable with the staff leasing company for state unemployment premiums, unless the client is relieved of the joint and several liability as provided under § 62-43-113(b)(2)(B) [repealed] of the Tennessee Employee Leasing Act.

Acts 1947, ch. 29, § 14; C. Supp. 1950, § 6901.14 (Williams, § 6901.38); Acts 1953, ch. 244, § 6; 1961, ch. 70, § 5; 1967, ch. 208, § 5; 1971, ch. 204, § 9; 1973, ch. 130, § 9; 1975, ch. 190, § 9; 1977, ch. 330, § 26; 1978, ch. 744, § 13; impl. am. Acts 1980, ch. 534, § 1; Acts 1980, ch. 641, §§ 5-7; 1981, ch. 249, §§ 4, 5; 1982, ch. 820, § 15; T.C.A. (orig. ed.), § 50-1329; Acts 1983, ch. 439, §§ 9-11; 1984, ch. 786, §§ 2-4; 1985, ch. 105, § 15; 1985, ch. 317, §§ 6, 11; 1985, ch. 318, §§ 58-64; 1989, ch. 333, §§ 6-8; 1993, ch. 169, § 2; 1995, ch. 503, §§ 6, 7; 1996, ch. 837, § 1; 1997, ch. 82, § 1; 1999, ch. 45, §§ 3-6; 1999, ch. 520, § 41; 2001, ch. 82, § 3; 2004, ch. 510, § 4; 2004, ch. 699, §§ 4-6; 2006, ch. 623, § 5; 2012, ch. 565, §§ 1-3; 2012, ch. 824, § 3; 2015, ch. 95, § 5; 2016, ch. 751, § 3; 2018, ch. 642, § 3.

Compiler's Notes. The federal Bankruptcy Act of 1898, referred to in this section, was repealed effective October 1, 1979. Pub. L. No. 95-598, Title IV, § 401(a), 92 Stat. 2682. The federal law on priorities is now codified in 11 U.S.C. § 507.

Section 62-43-113 and the Tennessee Employee Leasing Act, referred to in (k), were repealed by Acts 2012, ch. 1081, § 1. For present comparable provisions, see § 62-43-109.

Amendments. The 2015 amendment rewrote (c)(3) which read: “Effective for the quarter beginning January 1, 1997, and thereafter, every employer with two hundred fifty (250) or more employees, and every person or organization that, as an agent, reports wages on a total of two hundred fifty (250) or more employees on behalf of one (1) or more subject employers, shall file that portion of the wage and premium report that contains the name, social security number, and gross wages of each individual in employment on magnetic media in a format prescribed by the commissioner. However, if the internal revenue service regulations at 26 CFR 301.6011-2 are amended or superseded to reduce the threshold number of employees required by this section from two hundred fifty (250) employees to a lower number of employees, this section shall remain consistent with those regulations as amended. Effective for reports due for the quarter beginning July 1, 2000, and thereafter, any employer, person or organization subject to this subdivision (c)(3) who fails to file on magnetic media as prescribed in this subdivision (c)(3) shall be assessed a penalty of fifty dollars ($50.00) for each month, or portion of a month, the report is past due; however, the total penalty for each report shall not exceed five hundred dollars ($500). Penalties assessed pursuant to this subdivision (c)(3) shall cease to accrue as soon as the subject employer, person or organization complies with the requirements to report on magnetic media.”

The 2016 amendment added (h)(1)(F).

The 2018 amendment rewrote (c)(3) which read: “(3)(A)  Except as otherwise provided in subdivision (c)(3)(B), beginning January 1, 2016, and each quarter thereafter, each employer with ten (10) or more employees, and every person or organization that, as an agent, reports wages on a total of ten (10) or more employees on behalf of one (1) or more subject employers, shall file that portion of the wage and premium report that contains the name, social security number, and gross wages of each individual in employment electronically in a format prescribed by the commissioner.“(B)(i)  If an employer with at least ten (10) but not more than ninety-nine (99) employees, or a person or organization that, as an agent, reports wages on a total of at least ten (10) but not more than ninety-nine (99) employees on behalf of one (1) or more subject employers, is required to file the wage and premium report electronically pursuant to subdivision (c)(3)(A), and submits an affidavit to the commissioner containing a statement made under the penalty of perjury that the employer would suffer an undue hardship by filing the wage and premium report electronically, the commissioner shall allow the employer to file the wage and premium report in a hard copy or paper format.“(ii)  The affidavit required by subdivision (c)(3)(B)(i) shall be submitted within the first quarter, beginning January 1, 2016, and annually thereafter.“(iii)  This subdivision (c)(3)(B) shall not apply to the extent that compliance with the subdivision would violate federal law or cause the department a loss of federal funding.“(C)  If the internal revenue service regulations at 26 CFR 301.6011-2 are amended or superseded to reduce the threshold number of employees required by this section from ten (10) employees to a lower number of employees, this section shall remain consistent with those regulations as amended.“(D)  For reports due for the quarter beginning July 1, 2016, and each quarter thereafter, any employer, person, or organization subject to this subdivision (c)(3) that fails to file electronically as prescribed in this subdivision shall be assessed a penalty of fifty dollars ($50.00) for each month, or portion of a month, the report is past due; however, the total penalty for each report shall not exceed five hundred dollars ($500). Penalties assessed pursuant to this subdivision (c)(3)(D) shall cease to accrue as soon as the subject employer, person, or organization complies with the requirements to report electronically.”

Effective Dates. Acts 2015, ch. 95, § 9. July 1, 2015.

Acts 2016, ch. 751, § 6. July 1, 2016.

Acts 2018, ch. 642, § 5. July 1, 2018.

Cross-References. Certified mail in lieu of registered mail, § 1-3-111.

Perjury, title 39, ch. 16, part 7.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Unemployment Compensation, § 4.

Law Reviews.

Unemployment Compensation — Waiver and Recoupment of Overpayments (Linda K. Dickert), 7 Mem. St. U.L. Rev. 683 (1977).

NOTES TO DECISIONS

1. Purpose.

This section, together with the procedures under §§ 67-2303 through 67-2312 (then §§ 67-1-90167-1-910, but later repealed or deleted as obsolete), provide plaintiffs an adequate, speedy, and efficient method for determining whether the state's unemployment tax has been assessed in violation of their constitutional rights. Independent Baptist Church v. Tennessee, 468 F. Supp. 71, 1978 U.S. Dist. LEXIS 14258 (E.D. Tenn. 1978).

2. Liability for Tax.

Principal and surety on statutory performance and payment bond of general contractor in connection with public contract were not liable on bond for unemployment compensation taxes incurred by subcontractor. Scott v. Travelers Indem. Co., 215 Tenn. 173, 384 S.W.2d 38, 1964 Tenn. LEXIS 549 (1964).

3. Waiver or Commutation of Rights.

Provision in master contract that effective date of contract would be when strike terminated at all plants did not amount to an invalid agreement to waive unemployment benefits as applied to employees of automobile glass plant where employer was a large manufacturing concern with plants located throughout the county with operations so complex and integrated that glass plant could not be considered a separate factory. Ford Motor Co. v. Burson, 225 Tenn. 486, 470 S.W.2d 941, 1971 Tenn. LEXIS 351 (1971).

4. Additional Remedies.

Section 12-4-208 is cumulative and in addition to the rights under this section and gives to the department a remedy if the department elects not to proceed against the employer. Griggs v. Peerless Ins. Co., 528 S.W.2d 182, 1975 Tenn. LEXIS 621 (Tenn. 1975).

Collateral References.

Repayment of unemployment compensation benefits erroneously paid. 90 A.L.R.3d 987.

50-7-405. Period, election and termination of employer's coverage.

  1. Any employing unit that is or becomes an employer subject to this chapter within any calendar year shall be subject to this chapter during the whole of the calendar year.
      1. Except as otherwise provided in this section, an employing unit other than one covered under § 50-7-205(5) shall cease to be an employer subject to this chapter only as of January 1 of any calendar year only if it files with the administrator, prior to April 1 of the year, a written application for termination of coverage, and the administrator finds that there were no twenty (20) different days, each day being in a different week within the preceding calendar year, within which the employing unit employed one (1) or more individuals in employment subject to this chapter, and that there was no calendar quarter in either the current or preceding calendar year during which the employing unit paid one thousand five hundred dollars ($1,500) or more in wages for service in employment, or if an agricultural employer, the administrator finds there were no twenty (20) different days, each day being in a different week within the preceding calendar year, within which the employing unit employed ten (10) or more individuals in employment subject to this chapter, and that there were no calendar quarters in either the current or preceding calendar year during which the employing unit paid twenty thousand dollars ($20,000) or more in wages for service in employment, or, if a domestic employer, the administrator finds there were no calendar quarters in either the current or preceding calendar year during which the employing unit paid one thousand dollars ($1,000) or more in cash wages for service in employment. During any calendar year, if the administrator deems advisable, the administrator, on the administrator's own motion, may file an application for termination of coverage on behalf of any employer who, during any preceding year, was liable for premiums under the terms of this chapter but who:
        1. Has removed from the state;
        2. Has discontinued the business conducted by the employer at the time the employer became liable under the terms of this chapter;
        3. Has been adjudged bankrupt or insolvent;
        4. Has not, if other than an agricultural or domestic employer, in the preceding or current calendar year for some portion of a day in each of twenty (20) different weeks, whether or not the weeks were consecutive, had in employment one (1) or more individuals, regardless of whether the same individuals were employed in each day, and that there was no calendar quarter in either the current or preceding calendar year during which the employing unit paid one thousand five hundred dollars ($1,500) or more in wages for service in employment;
        5. Has not, if an agricultural employer, in the preceding or current calendar year for some portion of a day in each of twenty (20) different weeks, whether or not the weeks were consecutive, had in employment ten (10) or more individuals, regardless of whether the same individuals were employed in each day, and there were no calendar quarters in either the current or preceding calendar year during which the employing unit paid twenty thousand dollars ($20,000) or more in wages for service in employment; or
        6. If a domestic employer, has no calendar quarters in either the current or preceding calendar year during which the employing unit paid one thousand dollars ($1,000) or more in cash wages for service in employment.
      2. The application for termination of coverage filed by the administrator on the administrator's own motion shall be acted upon in the same manner as though the application had been filed by the employer.
      1. Except as otherwise provided in this section, an employing unit that became an employer through the application of § 50-7-205(5) shall cease to be an employer subject to this chapter only as of January 1 of any calendar year only if it files with the administrator, prior to April 1 of such year, a written application for termination of coverage, and the administrator finds that there were no twenty (20) different days, each day being in a different week within the preceding calendar year, within which the employing unit employed four (4) or more individuals in employment subject to this chapter. During any calendar year, if the administrator deems advisable, the administrator on the administrator's own motion, may file an application for termination of coverage on behalf of any employer who, during any preceding year, was liable for contributions or reimbursement of benefits paid and charged to the employer's account under the terms of this chapter, but who has:
        1. Removed from the state;
        2. Discontinued the business conducted by the employer at the time the employer became liable under the terms of this chapter;
        3. Been adjudged bankrupt or insolvent; or
        4. Not for some portion of a day in each of twenty (20) different weeks, whether or not the weeks were consecutive, had in employment four (4) or more individuals, regardless of whether the same individuals were employed in each day.
      2. The application for termination of coverage filed by the administrator on the administrator's own motion shall be acted upon in the same manner as though the application had been filed by the employer.
  2. Any employing unit that is, or becomes, an employer only by virtue of § 50-7-205(3) shall, in addition to the foregoing requirements of this section, cease to become an employer subject to this chapter only as of January 1 of any calendar year, only if the administrator finds, in addition to the findings prescribed by this section, that within the preceding calendar year no services in employment were performed for the employer with respect to which the employer was liable for any federal tax against which credit may be taken for contributions required to be paid to a state unemployment compensation fund.
    1. An employing unit, not otherwise subject to this chapter, that files with the administrator its written election to become an employer subject to this chapter for not less than two (2) calendar years, shall, with the written approval of the election by the administrator, become an employer subject to this chapter to the same extent as all other employers, as of the date stated in the approval, and shall cease to be subject to this chapter as of January 1 of any calendar year, subsequent to the two (2) calendar years, only if it files with the administrator, prior to April 1 of that year, a written notice to that effect, except as otherwise provided by this section.
    2. Any employing unit, for which services that do not constitute employment, as defined in this chapter, are performed, may file with the administrator a written election that all the services performed by individuals in its employ in one (1) or more distinct establishments or places of business shall be deemed to constitute employment for all the purposes of this chapter for not less than two (2) calendar years. Upon the written approval of the election by the administrator, the services shall be deemed to constitute employment subject to this chapter from and after the date stated in the approval. The services shall cease to be deemed employment subject to this chapter as of January 1 of any calendar year subsequent to the two (2) calendar years, only if the employing unit files with the administrator, prior to April 1 of that year, a written notice to that effect, except as otherwise provided by this section.
    3. Elective coverage by political subdivisions:
      1. Any political subdivision of this state may elect to cover, under this chapter, service performed by employees in all of the hospitals and institutions of higher education, as defined in § 50-7-207(f)(6) and (7), operated by the political subdivision. Election is to be made by filing with the administrator a notice of the election at least thirty (30) days prior to the effective date of the election. The election may exclude any services described in § 50-7-207(c)(5). Any political subdivision electing coverage under this subdivision (d)(3) shall make payments in lieu of premiums with respect to benefits attributable to the employment as provided with respect to nonprofit organizations in § 50-7-403(h);
      2. Section 50-7-207(c)(9) with respect to benefit rights based on service for state and nonprofit institutions of higher education shall be applicable also to service covered by an election under this section;
      3. The amounts required to be paid in lieu of premiums by any political subdivision under this section shall be billed and payment made as provided in § 50-7-403(h) with respect to similar payments by nonprofit organizations; and
      4. An election under this section may be terminated by filing with the administrator written notice not later than thirty (30) days preceding the last day of the calendar year in which the termination is to be effective. The termination becomes effective as of the first day of the next ensuing calendar year with respect to services performed after that date.

Acts 1947, ch. 29, § 8; 1949, ch. 226, § 6; C. Supp. 1950, § 6901.8 (Williams, § 6901.32); Acts 1951, ch. 139, § 9; 1955, ch. 21, § 2; 1955, ch. 115, § 12; 1971, ch. 204, §§ 10, 11; 1980, ch. 641, § 8; T.C.A. (orig. ed.), § 50-1330; Acts 1985, ch. 318, §§ 65-68.

Law Reviews.

Unemployment Compensation — Availability for Work — Labor Market as to Home Workers, 4 Vand. L. Rev. 206 (1951).

50-7-406. Rating system for reorganized businesses.

The division of employment security shall attempt to develop a system of rating employers that will ensure that an employer who goes out of business and reorganizes as a new business with substantially the same owners shall not be rated as a new employer, but the business shall retain the same rating it maintained under the old business.

Acts 1983, ch. 439, § 15; 1999, ch. 520, § 41.

50-7-407. Continuous part-time employment — “Reimbursing employer” defined.

  1. Notwithstanding any other provision of this chapter to the contrary, if a claimant employed by a reimbursing employer on a continuous part-time basis continues to be employed by the reimbursing employer while separated from other employment and is eligible for benefits, any benefits paid will not be considered attributable to the service with the reimbursing employer.
  2. For the purposes of this section, “reimbursing employer” means an eligible employer who elects to reimburse the state for benefits paid in lieu of premiums, as provided by the Federal Unemployment Tax Act, compiled in 26 U.S.C. § 3301 et. seq., or this chapter.

Acts 2013, ch. 166, § 1.

50-7-408 — 50-7-450. [Reserved.]

    1. The Tennessee job skills program is created in the department of economic and community development as a workforce development incentive program to enhance employment opportunities and to meet the needs of existing and new industries in this state.
    2. The program shall give priority to the creation and retention of high wage jobs and focus on employers in industries that promote high-skill, high-wage jobs in high-technology areas, emerging occupations or skilled manufacturing jobs.
    3. At least seventy percent (70%) of the Tennessee job skills funds, as provided in subsection (b), that are spent on Tennessee job skills grants shall be used for assisting existing employers.
    1. The Tennessee job skills fund is established as a separate account in the general fund.
    2. The Tennessee job skills fund is composed of:
      1. Money transferred into the Tennessee job skills fund from Tennessee job skills fees collected for calendar quarters occurring through December 31, 2001;
      2. Gifts, grants, and other donations received by the department of economic and community development for the Tennessee job skills fund; and
      3. Funds appropriated by the general assembly for the Tennessee job skills fund.
    3. Money in the Tennessee job skills fund may be used by the department of economic and community development for program administration, marketing expenses, and program evaluation; however, the expenses shall not exceed five percent (5%) of the total amount appropriated for the program in any fiscal year.
      1. Amounts remaining in the Tennessee job skills fund at the end of each fiscal year shall not revert to the general fund.
      2. Moneys in the Tennessee job skills fund shall be invested by the state treasurer pursuant to title 9, chapter 4, part 6, for the sole benefit of the Tennessee job skills fund, and interest accruing on investments and deposits of the fund shall be returned to the fund and remain part of the Tennessee job skills fund.
    4. It is the intent of the general assembly that, to the extent practicable, money from the Tennessee jobs skills program shall be spent in all areas of the state.
    1. The general assembly shall annually, in the general appropriations act, appropriate the amount to be available in that fiscal year for Tennessee job skills grants. It is the legislative intent that new commitments for Tennessee job skills grants made by the commissioner of economic and community development from the Tennessee job skills fund program shall not exceed appropriations made for such purposes. It is further the legislative intent that in each fiscal year the Tennessee job skills program be managed so that actual expenditures and obligations to be recognized at the end of the fiscal year shall not exceed any available reserves and appropriations of the programs.
    2. The commissioner of economic and community development shall annually report to the finance, ways and means committees of the house of representatives and the senate and the consumer and human resources committee of the house of representatives, the commerce and labor committee of the senate and the office of legislative budget analysis on the status of the Tennessee job skills appropriation. The report shall incorporate the information required to be filed by each employer who receives a Tennessee job skills grant pursuant to subsection (d), as well as including information concerning the amount of each grant authorized and each commitment accepted since the previous report and the name of the employer receiving the benefit of the grant or commitment, the total outstanding grants and commitments and the total unobligated appropriation.
    3. The following employers may apply for a Tennessee job skills grant from the Tennessee job skills fund:
      1. One (1) or more employers to secure training for demand occupations, emerging occupations, or manufacturing occupations;
      2. One (1) or more employers acting in partnership with an employer organization, labor organization, or community-based organization to secure training for demand occupations, emerging occupations, or manufacturing occupations; and
      3. One (1) or more employers acting in partnership with a consortium composed of more than one (1) provider to secure training for demand occupations, emerging occupations, or manufacturing occupations.
    4. All Tennessee job skills grant applications must contain the following:
      1. The number and kinds of jobs available;
      2. The skills and competencies required for the identified jobs;
      3. The starting wages to be paid to trainees on successful completion of the project;
      4. The goals, objectives, and outcome measurements for the project;
      5. The proposed curriculum for the project;
      6. The projected cost per person enrolled, trained, hired and retained in employment; and
      7. Any other information deemed necessary by the department of economic and community development.
    5. Tennessee job skills grants from the Tennessee job skills fund shall be awarded only to employers who certify that:
      1. A job or job opening exists or will exist at the end of the project for which the Tennessee job skills grant is sought;
      2. Job openings will be filled by participants in the project; and
      3. The starting wage for a new job created through the project will be equal to or greater than the prevailing starting wage for that occupation in the local labor market area.
  1. Each employer who receives a Tennessee job skills grant pursuant to this section shall file a final report with the department of economic and community development at the conclusion of the Tennessee job skills grant period that contains the following information:
    1. The number of participants in the project who are employed at the conclusion of the project;
    2. The number of participants in the project who are not employed at the end of the project;
    3. The starting wage of each participant employed; and
    4. Any other information required by the department of economic and community development.
  2. The department of economic and community development shall adopt rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to implement this section. Prior to the formal submission of  rules and regulations in accordance with the Uniform Administrative Procedures Act, the department of economic and community development shall submit draft rules and regulations to the finance, ways and means committee of the senate and the finance, ways and means committee of the house of representatives. The committees shall comment on the rules and regulations within sixty (60) days.
  3. The department of economic and community development shall report annually to the finance, ways and means committee of the senate and the finance, ways and means committee of the house of representatives on the Tennessee jobs skills program. On February 1, 2002, and every year thereafter, the comptroller of the treasury shall report to the finance, ways and means committee of the senate and the finance, ways and means committee of the house of representatives on the utilization of the funds.
  4. As used in this section, unless the context otherwise requires:
    1. “Demand occupation” means an occupation in which, as a result of business development, there is or will be positive job growth to job replacement ratios within the next twelve (12) to twenty-four (24) months, according to the best available sources of state and local labor market information;
    2. “Emerging occupation” means an occupation that arises from forces related to technological changes in the workplace and the work of which cannot be performed by workers from other occupations without customized education or training; and
    3. “Existing employer,” when used in reference to an employer's eligibility for a Tennessee job skills grant, as described in this section, means an employer that has been liable to pay unemployment insurance premiums under this chapter for more than one (1) year.

Acts 1998, ch. 1110, § 4; 1999, ch. 520, § 41; 2001, ch. 379, § 4; 2001, ch. 403, § 1; 2006, ch. 623, § 6; 2006, ch. 1015, § 1; 2009, ch. 550, §§ 13, 14; 2010, ch. 1030, § 13; 2011, ch. 410, § 7(a)-(c); 2013, ch. 236, § 16.

Compiler's Notes. For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

50-7-452. Including with employer's annual premium rate notice a statement of benefits charged to employer's experience rating account.

By January 1, 2013, at the request of the employer, the department shall begin including with an employer's annual premium rate notice the statement of benefits charged to the employer's experience rating account that affected that annual premium rate. The department shall include on the annual premium rate notice how an employer may opt in to having that additional information included with the notice.

Acts 2012, ch. 904, § 2.

Compiler's Notes. Acts 2012, ch. 904, § 3, provided that the commissioner is authorized to develop a program to check county jails for inmates who may be receiving unemployment benefits in violation of § 50-7-302(a)(4).  The commissioner shall confer with local sheriffs to determine which system would work best for the department and the local sheriffs.  The commissioner shall report to the commerce, labor and agriculture committee of the senate and the consumer and employee affairs committee of the house of representatives by July 1, 2012, regarding the status of such program.

Part 5
Funds

50-7-501. Unemployment compensation fund.

  1. Establishment and Control.
    1. There is established as a special fund, within the state treasury, an unemployment compensation fund, which shall be administered by the administrator of the division of employment security exclusively for the purposes of this chapter. This fund shall consist of all:
      1. Premiums collected under this chapter;
      2. Interest earned upon any money in the fund;
      3. Property or securities acquired in lieu of premiums or other liabilities to the fund;
      4. Earnings of the property or securities;
      5. Money recovered on losses sustained by the fund;
      6. Money credited to this state's account in the unemployment trust fund pursuant to § 903 of the Social Security Act, codified in 42 U.S.C. § 1103;
      7. Money received from employers who elect to make reimbursement of benefits paid and chargeable to them in lieu of paying premiums as provided in § 50-7-403(h) and (i);
      8. Money received from the federal government pursuant to § 204 of the Federal-State Extended Unemployment Compensation Act of 1970; and
      9. Fees and administrative expenses collected under § 50-7-304(b)(2)(E)(iii) and penalties collected under § 50-7-715(b)(1).
    2. All money in the fund shall be commingled and undivided.
  2. Accounts and Deposits.
    1. The state treasurer shall be the ex officio treasurer and custodian of the fund. Within the accounting system of the state, the fund shall be divided into three (3) separate accounts:
      1. A clearing account;
      2. An unemployment trust fund account; and
      3. A benefit account.
    2. All money payable to the fund, upon receipt of the money, shall be immediately deposited into the state treasury to the credit of the clearing account. Refunds payable pursuant to § 50-7-404 may be paid from the clearing account upon warrants originating in the office of the administrator and approved by the commissioner or a duly designated agent and countersigned by the state treasurer.
    3. All other collected funds in the clearing account shall be immediately transferred to and deposited with the secretary of the treasury of the United States to the credit of the account of this state in the unemployment trust fund established and maintained pursuant to § 904 of the Social Security Act, codified in 42 U.S.C. § 1104. The benefit account shall consist of all moneys requisitioned from this state's account in the unemployment trust fund.
  3. Withdrawals.  Money shall be requisitioned from the state’s account in the unemployment trust fund and shall be used exclusively for the payment of benefits, including extended benefits authorized by § 50-7-305; for refunds pursuant to § 50-7-404; and for the payment of fees authorized under the Treasury Offset Program described in § 6402 of the Internal Revenue Code, codified in 26 U.S.C. § 6402, and 31 CFR part 285, except that money credited to this state’s account pursuant to § 903 of the Social Security Act, codified in 42 U.S.C. § 1103, by the Employment Security Administration Financing Act of 1954, shall be used for the purpose of paying benefits as provided in this section, and for any purposes for which an appropriation may be made, which general appropriations act shall specifically comply with all the requirements of § 903 of the Social Security Act, codified in 42 U.S.C. § 1103, by the Employment Security Administration Financing Act of 1954. The administrator shall, from time to time, requisition from the unemployment trust fund amounts, not exceeding the amounts standing to this state’s account in the fund, the administrator deems necessary for the payment of benefits for a reasonable future period, the limits of which shall be specified by the administrator. Upon receipt of the moneys, the state treasurer shall deposit the moneys in the benefit account and all warrants for the payment of benefits shall be issued in the manner prescribed in this section and shall be payable by the state treasurer solely from the benefit account. Expenditures of the moneys in the benefit account and refunds from the clearing account shall not be subject to any law requiring specific appropriations or other formal release by state officers of money in their custody. All warrants for the payment of benefits and refunds shall originate in the office of the administrator and shall be approved by the commissioner or a duly designated agent and shall be countersigned by the state treasurer. Any balance of moneys requisitioned from the unemployment trust fund that remains unclaimed or unpaid in the benefit account after the expiration of the period for which the sums were requisitioned shall either be deducted from estimates for, and may be utilized for the payment of, benefits during succeeding periods, or, in the discretion of the administrator, shall be redeposited with the secretary of the treasury of the United States, to the credit of this state’s account in the unemployment trust fund, as provided in subsection (b).
  4. Management of Funds upon Discontinuance of Unemployment Trust Fund.  Subsections (a), (b) and (c), to the extent that they relate to the unemployment trust fund, shall be operative only so long as the unemployment trust fund continues to exist and so long as the secretary of the treasury of the United States continues to maintain for this state a separate book account of all funds deposited in the fund by this state for benefit purposes, together with this state's proportionate share of the earnings of the unemployment trust fund, from which no other state is permitted to make withdrawals. If, and when, the unemployment trust fund ceases to exist, or the separate book account is no longer maintained, all moneys, properties or securities in the fund belonging to the unemployment compensation fund of this state shall be transferred to the state treasurer, who shall hold, invest, transfer, sell, deposit and release the moneys, properties or securities as the general assembly may direct in accordance with this chapter; provided, that the moneys shall be invested in the following readily marketable classes of securities, bonds or other interest-bearing obligations of the United States, or in such securities as the sinking fund of this state may now or hereafter be invested; and provided further, that investment shall at all times be so made that all the assets of the fund shall always be readily convertible into cash when needed for the payment of benefits. The state treasurer shall dispose of securities or other properties belonging to the unemployment compensation fund only under the direction of the commissioner.

Acts 1947, ch. 29, § 9; C. Supp. 1950, § 6901.9 (Williams, § 6901.33); Acts 1957, ch. 146, §§ 10, 11; 1959, ch. 160, § 4; 1971, ch. 204, §§ 16, 17; T.C.A. (orig. ed.), § 50-1331; Acts 1985, ch. 118, §§ 69, 70; 1985, ch. 318, §§ 69-71; 2012, ch. 824, §§ 4, 5; 2015, ch. 95, § 6.

Compiler's Notes. Section 204 of the Federal-State Extended Unemployment Compensation Act of 1970, Pub. L. No. 91-373, Title II, § 204, can be found at 26 U.S.C. § 3304 note.

Amendments. The 2015 amendment rewrote (a)(1)(I) which read: “Fees, penalties, or interest collected in accordance with the federal Treasury Offset Program described in § 6402 of the Internal Revenue Code, codified in 26 U.S.C. § 6402, and 31 CFR part 285, 42 U.S.C. § 503(a), and § 50-7-715.”

Effective Dates. Acts 2015, ch. 95, § 9. July 1, 2015.

Cross-References. Definitions, title 50, ch. 7, part 2.

Premiums, title 50, ch. 7, part 4.

Law Reviews.

A Primer on Unemployment Insurance Law for the General Practitioner (D. Bruce Shine, Sam Watridge, Donald F. Mason, Jr.), 23 No. 2 Tenn. B.J. 11 (1987).

Attorney General Opinions. Funding unemployment benefit claims.  OAG 10-41, 2010 Tenn. AG LEXIS 41 (4/1/10).

50-7-502. Unemployment compensation administration fund.

    1. There is created in the state treasury a special fund to be known as the unemployment compensation administration fund.
    2. All moneys that are deposited or paid into this fund are appropriated and made available to the commissioner.
    3. All moneys in this fund shall be expended solely for the purpose of defraying the cost of administration of this chapter, and no other purpose whatsoever.
    4. The fund shall consist of all money appropriated and allotted by this state, and all moneys received from the United States, or any agencies of the United States, or from any other source, for that purpose.
    5. All moneys in this fund shall be deposited, administered and disbursed in the same manner and under the same conditions and requirements that are provided by law for other special funds in the state treasury.
    6. Any balances in this fund shall not lapse at any time, but shall be continuously available to the commissioner for expenditure consistent with this chapter.
    7. The moneys received from any agency of the United States, or any other state or agency, as compensation for services or facilities supplied to the agency or agencies shall be paid into this fund on the same basis as expenditures are made for the services or facilities from the fund or account.
  1. All moneys received from the United States secretary of labor or the secretary's successors for the administration of this chapter shall be expended solely for the purposes and in the amounts found necessary by the United States secretary of labor or the secretary's successors, for the proper and efficient administration of this chapter.
  2. It is the policy of this state that any moneys received from the United States secretary of labor or the secretary's predecessors or successors under the Social Security Act, Title III, compiled in 42 U.S.C. § 501 et seq., or any unencumbered balances in the unemployment compensation administration fund as of that date, or any moneys granted after that date to this state pursuant to the Wagner-Peyser Act, compiled in 29 U.S.C. § 49 et seq., or any moneys appropriated and allocated by this state or its political subdivisions, and matched by the moneys granted to this state pursuant to the Wagner-Peyser Act, which, because of any action or contingency, have been lost or have been expended for purposes other than, or in amounts in excess of, those found necessary by the United States secretary of labor or the secretary's successors for the proper administration of the fund, shall be replaced by the state within a reasonable time to the unemployment compensation administration fund for expenditure as provided in subsection (a).

Acts 1947, ch. 29, § 13; C. Supp. 1950, § 6901.13 (Williams, § 6901.37); modified; T.C.A. (orig. ed.), § 50-1347; Acts 1985, ch. 118, § 71; 1987, ch. 148, §§ 8-10; 1998, ch. 772, § 1; 1999, ch. 520, § 41.

Code Commission Notes.

Former subdivision (a)(8), concerning Reed Act money with respect to federal fiscal years 1999, 2000 and 2001, and allocated for the federal fiscal years 2000, 2001 and 2002, being used solely for the administration of the unemployment insurance program, was deleted as obsolete by the code commission in 2005.

Cross-References. Definition of unemployment compensation administration fund, § 50-7-212.

50-7-503. Unemployment compensation special administrative fund.

    1. There is created in the state treasury a fund to be known as the “unemployment compensation special administrative fund,” which shall consist of interest collected on delinquent payments pursuant to § 50-7-404(a), the penalty rate payments collected under § 50-7-403(b)(2)(G)(i)(b ), the civil money penalties collected under § 50-7-403(b)(2)(G)(ii), penalties collected in accordance with § 50-7-715(b)(2), and interest collected in accordance with § 50-7-715(c)(1).
    2. Annual estimates of expenditures and requirements from this fund shall be set forth in the budget document, and estimates approved by the general assembly shall be appropriated from this fund as a specific appropriation item in each year's general appropriations act.
    3. No sum sufficient appropriation shall be made from this fund that may add to estimates approved and appropriated by the general assembly, except for subdivisions (a)(1) and (2).
    4. The moneys deposited with the fund may be used for the following purposes:
      1. Replacements in the unemployment compensation administration fund as provided in § 50-7-502(c);
      2. Refunds pursuant to § 50-7-404(f) of interest erroneously collected; and
      3. Meeting necessary expenses for the administration of this chapter, including, but not limited to, automation expenses, as approved by the commissioner of finance and administration, the information systems council, and any other entity as required by law.
    1. Interest earned on this fund shall be credited to and augment this fund.
    2. The balance of this fund and the balance of the unemployment compensation trust fund shall be considered for purposes of establishing the applicable premium table pursuant to § 50-7-403(j).

Acts 1947, ch. 29, § 13; C. Supp. 1950, § 6901.13 (Williams, § 6901.37); Acts 1981, ch. 249, §§ 6, 7; T.C.A. (orig. ed.), § 50-1348; Acts 1984, ch. 786, § 5; 1985, ch. 294, §§ 1-6; 1989, ch. 545, §§ 1-3; 1997, ch. 431, §§ 1, 2; 1999, ch. 520, § 41; 2005, ch. 357, § 10; 2012, ch. 824, § 6; 2015, ch. 95, § 7.

Amendments. The 2015 amendment rewrote (a)(1) which read: “There is created in the state treasury a fund to be known as the “unemployment compensation special administrative fund,” which shall consist of interest collected on delinquent payments pursuant to § 50-7-404(a) and, except as provided in § 50-7-501(a)(1)(I), all fines and penalties collected pursuant to this chapter, including the penalty rate payments collected under § 50-7-403(b)(2)(G)(i)(b ), the civil money penalties collected under § 50-7-403(b)(2)(G)(ii), and fees, penalties, or interest collected in accordance with the federal Treasury Offset Program described in § 6402 of the Internal Revenue Code, compiled in 26 U.S.C. § 6402, and 31 CFR part 285, 42 U.S.C. § 503(a).”

Effective Dates. Acts 2015, ch. 95, § 9. July 1, 2015.

50-7-504. Nonliability of state for benefits.

  1. Benefits shall be deemed to be due and payable under this chapter only to the extent provided in this chapter and to the extent that moneys are available for the benefits to the credit of the unemployment compensation fund, and neither the state nor the commissioner shall be liable for any amount in excess of those sums.
  2. However, for the purpose of continuing the payment of benefits provided by this chapter, the commissioner is authorized to secure an advance of funds from the federal government, pursuant to and subject to the terms of the Social Security Act, Title XII, compiled in 42 U.S.C. § 1321 et seq., and/or 26 U.S.C. § 3302, or related acts when and if the commissioner deems the trust fund is insufficient to pay the benefits provided in this chapter for the ensuing six (6) months.

Acts 1947, ch. 29, § 18; C. Supp. 1950, § 6901.18 (Williams, § 6901.42); Acts 1977, ch. 330, § 29; T.C.A. (orig. ed.), § 50-1356.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

Attorney General Opinions. Funding unemployment benefit claims.  OAG 10-41, 2010 Tenn. AG LEXIS 41 (4/1/10).

50-7-505. Assessment for payment of interest — Interest paid on advancement fund.

  1. In addition to all other premiums due under this chapter, if on any June 1, the fund has utilized during the preceding eight-month period or it has been determined that during the next four-month period ending on September 30, the fund will utilize moneys advanced under  42 U.S.C. § 1321 and interest is or will be due on the moneys advanced, each employer, except any employer who has not had benefits charged against the employer's account during the two-year period ending on the preceding December 31, and who has not had a negative balance in the employer's account during the same two-year period, shall be assessed an amount that will be used exclusively for the payment of interest due on the advance.
  2. The rate at which each such employer liable under subsection (a) will be assessed shall be determined by dividing the interest that will be due on the next September 30, by ninety-five percent (95%) of the total taxable wages paid during the preceding calendar year ending on December 31 by those employers liable under subsection (a).
  3. In order to determine the assessment of each employer liable under subsection (a), multiply the rate as determined in subsection (b) by each such employer's total taxable wages paid during the preceding calendar year ending on December 31.
  4. Each employer liable under subsection (a) shall be notified of the amount due as a result of subsection (a) on or before June 30. The amount shall be considered delinquent if not paid on or before July 31. Amounts that are unpaid on the day following the date due and payable shall bear interest at the same rate as for regular premiums.
  5. The amount of the assessment will not be included in the determination of an employer's experience rating.
  6. There is created in the state treasury a special fund, to be known as the interest paid on advancement fund (IPA fund).
  7. All moneys collected under this section shall be deposited into the IPA fund and are appropriated and made available exclusively to the commissioner of labor and workforce development for use in paying interest owed on advancements.
  8. All remedies applicable to the collection of employer premiums are applicable to this section.
  9. Any interest required to be paid on advances under the Social Security Act, Title XII, compiled in 42 U.S.C. § 1321 et seq., shall be paid in a timely manner and shall not be paid, directly or indirectly, by an equivalent reduction in unemployment premiums or otherwise, from amounts in the unemployment fund.

Acts 1983, ch. 439, § 13; 1984, ch. 701, § 5; 1984, ch. 786, § 6; 1985, ch. 118, § 72; 1985, ch. 318, §§ 72, 73; 1999, ch. 520, § 41.

50-7-506. [Repealed.]

Acts 1983, ch. 439, § 16; 1999, ch. 520, § 41; repealed by Acts 2018, ch. 642, § 4, effective July 1, 2018.

Compiler's Notes. Former § 50-7-506 concerned an annual unemployment trust fund balance report.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

50-7-507. Investment and securing of funds — Interest.

  1. All moneys in the state treasury in funds created by this chapter shall be invested and secured under title 9, chapter 4, parts 1-4 and 6-8; provided, that in the event of any conflict between this section and § 50-7-501(b), § 50-7-501(b) shall control.
  2. The state treasurer shall periodically review the balances in the various funds created pursuant to this chapter and allocate the interest as is payable pursuant to title 9, chapter 4, parts 1-4 and 6-8.
  3. The state treasurer shall pro rata reduce interest allocations to all funds for which interest is paid pursuant to this section, if necessary, to compensate for any account or fund having a negative balance for the period for which interest allocations are made.

Acts 1985, ch. 118, § 73; 1986, ch. 551, § 10.

Part 6
Administration

50-7-601. Unemployment compensation bureau — Division of the Tennessee state employment service.

  1. There is created and established in the division of employment security a coordinate bureau to be designated as the unemployment compensation bureau. The bureau shall be a separate administrative unit with respect to personnel and budget, except insofar as the commissioner may find that separation is impracticable. The bureau shall exercise all the powers, perform the duties, and be subject to all the limitations prescribed in this chapter, except those pertaining to overall administration of the division vested in the administrator or except those pertaining to the overall supervision of the department vested in the commissioner, and those provided in this section for the division of the Tennessee state employment service.
  2. There is also created within the department of labor and workforce development the division of Tennessee state employment service, the latter being more fully described in § 50-7-608. The division shall be a separate administrative entity with respect to personnel and budget, except insofar as the commissioner may find that separation impracticable. The division shall be subject to the supervision and control of the commissioner within the provisions of this chapter.

Acts 1947, ch. 29, § 10; C. Supp. 1950, § 6901.10 (Williams, § 6901.34); Acts 1955, ch. 226, § 1; 1975, ch. 190, § 10; 1976, ch. 806, § 1(78); 1977, ch. 330, § 27; 1978, ch. 744, § 14; T.C.A. (orig. ed.), § 50-1332; Acts 1999, ch. 520, § 41; 2010, ch. 1042, § 12.

Cross-References. Definitions, title 50, ch. 7, part 2.

Law Reviews.

A Primer on Unemployment Insurance Law for the General Practitioner (D. Bruce Shine, Sam Watridge, Donald F. Mason, Jr.), 23 No. 2 Tenn. B.J. 11 (1987).

50-7-602. Authority and duties of commissioner.

  1. It is the duty of the administrator to administer this chapter. The commissioner has the power and authority to adopt, amend or rescind rules and regulations, to employ persons, make expenditures, require reports, make investigations, and take other action the commissioner deems necessary or suitable to that end.
  2. The rules and regulations shall be effective as provided in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  3. The commissioner shall determine the commissioner's own organization and methods of procedure in accordance with this section, and shall have an official seal, which shall be judicially noticed.
  4. Not later than February 1 of each year, the commissioner shall submit to the governor a report covering the administration and operation of this chapter during the preceding twelve-month period ending on September 30, and shall make recommendations for amendments to this chapter the commissioner deems proper.
  5. The report shall include a balance sheet of the moneys in the fund in which there shall be provided, if possible, a reserve against the liability in future years to pay benefits in excess of the then current premiums, which reserve shall be set up by the commissioner in accordance with accepted actuarial principles on the basis of statistics of employment, business activity and other relevant factors for the longest possible period.
  6. Whenever the commissioner believes that a change in premium or benefit rates will become necessary to protect the solvency of the fund, the commissioner shall promptly so inform the governor and the general assembly, and make recommendations with respect to the change in premium or benefit rates.

Acts 1947, ch. 29, § 11; C. Supp. 1950, § 6901.11 (Williams, § 6901.35); Acts 1978, ch. 744, § 15; T.C.A. (orig. ed.), § 50-1333; Acts 1985, ch. 318, § 74.

NOTES TO DECISIONS

1. Authority.

Pursuant to T.C.A. § 50-7-602(a), it was appropriate for the Tennessee Department of Labor and Workforce Development to commence an audit of a taxpayer and ascertain the appropriate remedies for violations of T.C.A. § 50-7-101 et seq.ARI, Inc. v. Neeley, — S.W.3d —, 2012 Tenn. App. LEXIS 543 (Tenn. Ct. App. Aug. 3, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 947 (Tenn. Dec. 14, 2012).

50-7-603. Regulations and rules.

Regulations and rules may be adopted, amended or rescinded by the commissioner as provided in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1947, ch. 29, § 11; C. Supp. 1950, § 6901.11 (Williams, § 6901.35); Acts 1973, ch. 130, § 10; T.C.A. (orig. ed.), § 50-1334; Acts 1985, ch. 318, § 75.

50-7-604. Publications.

The commissioner shall cause to be printed for distribution to the public the text of this chapter, the commissioner's regulations and general rules, the commissioner's annual reports to the governor, to be printed for distribution biennially, and any other material the commissioner deems relevant and suitable and shall furnish the material to any person upon application for the material.

Acts 1947, ch. 29, § 11; C. Supp. 1950, § 6901.11 (Williams, § 6901.35); Acts 1982, ch. 820, § 16; T.C.A. (orig. ed.), § 50-1335.

50-7-605. Personnel.

    1. Subject to this chapter, the commissioner is authorized to appoint, fix the compensation and prescribe the duties and powers of officers, accountants, attorneys, experts and other persons necessary in the performance of the commissioner's duties.
    2. All positions except those provided for in § 50-7-714 shall be filled by persons selected and appointed on a nonpartisan merit basis.
    3. The commissioner shall provide for the holding of examinations to determine the qualifications of applicants for the positions so classified, and, except for temporary appointments not to exceed six (6) months in duration, shall appoint the personnel on the basis of efficiency and fitness as determined in the examinations.
    4. The commissioner shall not appoint or employ any person who is an officer or committee member of any political party organization or who holds, or is a candidate for, any elective public office.
    5. The commissioner may delegate to any person so appointed the power and authority the commissioner deems reasonable and proper for the effective administration of this chapter, and may, in the commissioner's discretion, require bond of any person handling moneys or signing checks or warrants under this chapter, and the premiums on the bond shall be paid from the administrative fund.
  1. The provisions of this section as to the holding of examinations and the making of appointments on the basis of the examinations shall be inoperative so long as the state has in effect a civil service system applicable to the department of labor and workforce development.

Acts 1947, ch. 29, § 11; C. Supp. 1950, § 6901.11 (Williams, § 6901.35); T.C.A. (orig. ed.), § 50-1336; Acts 1983, ch. 371, § 1; 1999, ch. 520, § 41.

50-7-606. State unemployment compensation advisory council.

  1. The commissioner shall appoint a state unemployment compensation advisory council composed of an equal number of employer representatives and employee representatives who may fairly be regarded as representative because of their vocation, employment or affiliations, and of members representing the general public that the commissioner may designate.
  2. This council shall aid the commissioner in formulating policies and discussing problems related to the administration of this chapter and in assuring impartiality and freedom from political influence in the solution of the problems.
  3. The advisory council shall serve without compensation, but shall be reimbursed for any necessary expense.
  4. All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
  5. In addition to any other meetings the state advisory council may have with the commissioner for those purposes included in subsection (b), the state advisory council shall meet at least twice a year with the administrator. At such meetings the administrator shall advise the council on the status of all operations of the division and the programs administered within the division. Members of the advisory council shall not be reimbursed for necessary expenses in attending such meetings.

Acts 1947, ch. 29, § 11; C. Supp. 1950, § 6901.11 (Williams, § 6901.35); Acts 1976, ch. 806, § 1(67); T.C.A. (orig. ed.), § 50-1337; Acts 1999, ch. 520, §§ 41, 51.

Compiler's Notes. The state unemployment compensation advisory council, created by this section, terminates June 30, 2023. See §§ 4-29-112, 4-29-244.

50-7-607. Employment stabilization.

The commissioner, with the advice and aid of the advisory council, and through the appropriate divisions, shall take all appropriate steps to:

  1. Reduce and prevent unemployment;
  2. Encourage and assist in the adoption of practical methods of vocational training, retraining and vocational guidance;
  3. Investigate, recommend, advise and assist in the establishment and operation, by municipalities, counties, school districts and the state, of reserves for public work to be used in times of business depression and unemployment;
  4. Promote the reemployment of unemployed workers throughout the state in every other way that may be feasible; and
  5. To these ends, carry on and publish the results of investigations and research studies.

Acts 1947, ch. 29, § 11; C. Supp. 1950, § 6901.11 (Williams, § 6901.35); T.C.A. (orig. ed.), § 50-1338.

50-7-608. State employment service.

    1. The commissioner shall establish and maintain free public employment offices for the Tennessee state employment service in the number and in the places necessary for the proper administration of this chapter, and for the purposes of performing the duties that are within the purview of the act of congress entitled “An Act to provide for the establishment of a national employment system and for the cooperation with the states in the promotion of such system and for other purposes,” approved June 6, 1933, 48 Stat. 113; 29 U.S.C. § 49(c).
    2. It is the duty of the commissioner to cooperate with and, subject to the approval of the governor, to enter into any necessary and desirable agreements with any official or agency of the United States having powers or duties under the act referenced in subdivision (a)(1), or any subsequent act of congress, and to do and perform all things necessary to secure to this state the benefits of the act referenced in subdivision (a)(1), or any subsequent acts of congress in the promotion and maintenance of a system of public employment offices.
    3. The act referenced in subdivision (a)(1), is accepted by this state, in conformity with section 4 of that act, and this state will observe and comply with the requirements of the act referenced in subdivision (a)(1).
    4. The department is designated and constituted the agency of this state for the purpose of that act.
    5. The commissioner shall appoint the director, and other officers and employees of the Tennessee state employment service.
    6. The commissioner may cooperate with or enter into agreements with the railroad retirement board with respect to the establishment, maintenance and the use of free employment service facilities.
    1. All moneys received by this state under that act of congress, as amended, shall be paid into the special employment service account in the unemployment compensation administration fund, and these moneys are made available to the commissioner to be expended as provided by this section and by the act referenced in subdivision (a)(1).
    2. For the purpose of establishing and maintaining free public employment offices, the commissioner is authorized to enter into agreements with the railroad retirement board, or any other agency of the United States charged with the administration of an unemployment compensation law, with any political subdivisions of this state, or with any private, nonprofit organization, and, as a part of the agreement, the commissioner may accept moneys, services or quarters as a contribution to the employment service account.

Acts 1947, ch. 29, § 12; C. Supp. 1950, § 6901.12 (Williams, § 6901.36); T.C.A. (orig. ed.), § 50-1346; Acts 1999, ch. 520, § 41.

Compiler's Notes. “Section 4 of that act,” a reference to section 4 of “An act to provide for the establishment of a national employment system and for the cooperation with the states in the promotion of such system and for other purposes”, referred to in this section, is codified in 29 U.S.C. § 49 (c).

Cross-References. Creation of state employment service, § 50-7-601.

50-7-609. Assistant or deputy commissioner.

  1. The commissioner of labor and workforce development may appoint an assistant or deputy commissioner for the division of employment security, and may delegate to the person so appointed the responsibility and authority in connection with the administration of this chapter, the commissioner may, from time to time, deem necessary, reasonable and proper for the effective and efficient administration of the division, including, but not limited to, the coordination of the unemployment compensation bureau of the division and the Tennessee state employment service.
  2. Neither this chapter nor title 8, chapter 30 shall apply to the appointment of the assistant or deputy commissioner provided for in this section, or to the assistant or deputy commissioner's tenure of office, it being the express intent that the assistant or deputy commissioner shall serve in that capacity solely at the will of the commissioner.

Acts 1955, ch. 5, §§ 1-3; T.C.A., §§ 50-1359 — 50-1361; Acts 1983, ch. 371, §§ 2, 3; 1999, ch. 520, § 41; 2012, ch. 800, § 49.

Compiler's Notes. Acts 2012, ch. 800, § 1 provided that the act, which amended subsection (b), shall be known and cited as the “Tennessee Excellence, Accountability, and Management (T.E.A.M.) Act of 2012.”

50-7-610. Contracts for administration of programs.

Any political subdivision of the state may contract for the administration of an unemployment compensation program following the established procedures of the division of employment security required by the terms of this chapter without the necessity of public bidding, as required by any public or private act or charter restriction, if the contract is entered into pursuant to a plan authorized and approved by any organization of governmental entities representing cities or counties.

Acts 1979, ch. 312, § 1; T.C.A., § 50-1364; Acts 1999, ch. 520, § 41.

50-7-611. Child support deduction.

    1. An individual filing a new claim for unemployment compensation shall, at the time of filing the claim, disclose whether or not the individual owes child support obligations as defined under subsection (g).
    2. If the individual discloses that the individual owes child support obligations, and is determined to be eligible for unemployment compensation, the administrator shall notify the state or local child support enforcement agency enforcing the obligation that the individual has been determined eligible for unemployment compensation.
  1. Notwithstanding any other provision of this chapter, the administrator shall deduct and withhold from any unemployment compensation payable to an individual that owes child support obligations as defined under subsection (g):
    1. The amount specified by the individual to the administrator to be deducted and withheld under this subsection (b), if neither subdivision (b)(2) nor (3) is applicable;
    2. The amount, if any, determined pursuant to an agreement submitted to the commissioner under § 454(19)(B)(i) of the Social Security Act, codified in 42 U.S.C. § 654(19)(B)(i), by the state or local child support enforcement agency, unless subdivision (b)(3) is applicable; or
    3. Any amount otherwise required to be deducted and withheld from the unemployment compensation pursuant to legal process as that term is defined in § 462(e) of the Social Security Act [repealed], properly served upon the commissioner.
    1. Any amount deducted and withheld under subsection (b) shall be paid by the administrator to the appropriate state or local child support enforcement agency.
    2. In counties having a population of seven hundred thousand (700,000) or more, according to the 1980 federal census or any subsequent federal census, the amount deducted shall be paid by the administrator to the appropriate local child support enforcement agency.
  2. Any amount deducted and withheld under subsection (b) shall for all purposes be treated as if it were paid to the individual as unemployment compensation and paid by the individual to the state or local child support enforcement agency in satisfaction of the individual's child support obligations.
  3. For purposes of subsections (a)-(d), “unemployment compensation” means any compensation payable under this chapter, including amounts payable by the commissioner pursuant to an agreement under any federal law providing for compensation, assistance or allowances with respect to unemployment.
  4. This section applies only if appropriate arrangements have been made for reimbursement by the state or local child support enforcement agency for the administrative costs incurred by the administrator under this section that are attributable to child support obligations being enforced by the state or local child support enforcement agency.
  5. “Child support obligations,” as used in this section, means only obligations that are being enforced pursuant to a plan described in § 454 of the Social Security Act, codified in 42 U.S.C. § 654, that has been approved by the secretary of health and human services under Title IV, Part D of the Social Security Act, compiled in 42 U.S.C. § 651 et seq.
  6. “State or local child support enforcement agency,” as used in this section, means any agency of a state or a political subdivision thereof operating pursuant to a plan described in subsection (g).

Acts 1982, ch. 606, § 8; T.C.A., § 50-1365; Acts 1987, ch. 303, § 1.

Compiler's Notes. Section 462(e) of the Social Security Act, referred to in this section, formerly codified in 42 U.S.C. § 662(e), was repealed by  P.L. 104-193, Title III, Subtitle G, § 362(b)(1), 110 Stat. 2246, enacted on Aug. 22, 1996, and effective six months after enactment. Comparable provisions may now be found at 42 U.S.C. § 659(i)(5).

For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Assignment of income for support, title 36, ch. 5, part 5.

Enforcement of child support decrees, § 36-5-103.

50-7-612. Food stamp overissuance deduction.

  1. An individual filing a new claim for unemployment compensation shall, at the time of filing the claim, disclose whether or not the individual owes an overissuance, as defined in § 13(c)(1) of the Food Stamp Act of 1977, codified in 7 U.S.C. § 2022(c)(1), of food stamp benefits. The administrator shall notify the state food stamp agency enforcing such obligation of any individual who discloses that such individual owes food stamp overissuances and who is determined to be eligible for unemployment compensation.
  2. The administrator shall deduct and withhold from any unemployment compensation payable to the individual who owes an uncollected overissuance of food stamp benefits:
    1. The amount specified by the individual to the administrator to be deducted and withheld under this subsection (b);
    2. The amount, if any, determined pursuant to an agreement submitted to the state food stamp agency under § 13(c)(3)(A) of the Food Stamp Act of 1977, codified in 7 U.S.C. § 2022(c)(3)(A); or
    3. Any amount otherwise required to be deducted and withheld from unemployment compensation pursuant to § 13(c)(3)(B) of the Food Stamp Act of 1977, codified in 7 U.S.C. § 2022(c)(3)(B).
  3. Any amount deducted and withheld under this section shall be paid by the administrator to the appropriate state food stamp agency.
  4. Any amount deducted and withheld under subsection (b) shall for all purposes be treated as if it were paid to the individual as unemployment compensation and be treated as if it were paid by the individual to the state food stamp agency as repayment of the individual's uncollected overissuance of food stamp benefits.
  5. For purposes of this section, “unemployment compensation” means any compensation payable under this chapter, including amounts payable by the commissioner pursuant to an agreement under federal law providing for compensation, assistance, or allowances with respect to unemployment.
  6. This section applies only if arrangements have been made for reimbursement by the state food stamp agency for the administrative costs incurred by the commissioner under this section that are attributable to the repayment of uncollected overissuances to the state food stamp agency.

Acts 1997, ch. 104, § 4.

50-7-613. Receiving notices electronically and submitting separation information electronically — Electronic appeals.

By July 1, 2012, the department shall implement an Internet-based system that allows employers to receive separation notices from the department electronically and to submit separation information electronically to the department. The system shall also have the capability to allow an employer to initiate an appeal electronically.

Acts 2012, ch. 904, § 1.

Compiler's Notes. Acts 2012, ch. 904, § 3, provided that the commissioner is authorized to develop a program to check county jails for inmates who may be receiving unemployment benefits in violation of § 50-7-302(a)(4).  The commissioner shall confer with local sheriffs to determine which system would work best for the department and the local sheriffs.  The commissioner shall report to the commerce, labor and agriculture committee of the senate and the consumer and employee affairs committee of the house of representatives by July 1, 2012, regarding the status of such program.

Part 7
Enforcement

50-7-701. Records and reports — Evidence — Privilege — Cost.

    1. Each employing unit shall keep true and accurate work records, for the periods of time and containing the information the commissioner prescribes. The records shall be open to inspection and be subject to being copied by the commissioner or the commissioner's authorized representative at any reasonable time and as often as necessary.
      1. The commissioner, the commissioner’s designee or an unemployment hearing officer may require from a claimant all necessary information to process the claimant's claim and may require from any employing unit any sworn or unsworn reports, with respect to persons employed by it, that any of them deem necessary for the effective administration of this chapter.
      2. Information thus obtained pursuant to the administration of this chapter shall be held confidential and shall not be published or be open to public inspection in any manner revealing the individual's or the employing unit's identity, other than to:
        1. The extent necessary for the proper presentation of a claim for unemployment insurance benefits;
        2. Public employees in the performance of their public duties and to their duly authorized agents and contractors for the purpose of performing such duties; provided, that the safeguard and security requirements of 20 CFR 603.9(b) and (c) are met;
        3. State and local child support agencies for the enforcement, collection and establishment of child support obligations, for the location of child support obligors, and for the establishment of paternity. Information disclosed to the state and local child support agencies may be provided by them to their duly authorized agents, working under contract or otherwise; provided, that the information provided to the agents is limited to only information on individuals who are child support obligors or who are sought for establishing paternity, and the information is used only for the purposes of establishing and collecting child support obligations, locating child support obligors, and establishing paternity. Any agent of a state or local child support agency who receives information under this section shall be required to comply with all regulations, restrictions and safeguards provided in § 303(e)(1)(B) of the Social Security Act, codified in 42 U.S.C. § 503(e)(1)(B), as determined in regulations issued by the United States secretary of labor;
        4. Any party or the party's legal representative at a hearing before an unemployment hearing officer or the commissioner’s designee to the extent necessary for the proper presentation of a claim. Any documents, records, affidavits, testimony, or other information introduced into the record at any hearing before an unemployment hearing officer or the commissioner’s designee shall not be held confidential and shall be open to public inspection, unless expressly prohibited by other state or federal law or by administrative or judicial protective order. Hearings before an unemployment hearing officer or the commissioner’s designee will be open to the public, subject to rules the agency prescribed in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and applicable federal law;
        5. The bureau of TennCare, the office of inspector general, and their duly authorized agents and contractors, for the sole purpose of investigating the eligibility of TennCare enrollees and applicants; provided, that the information disclosed to the agents shall only include TennCare enrollee and applicant information, and that the information shall be used only for the following purposes: verification of eligibility for TennCare, verification of TennCare enrollee access to health insurance other than through TennCare, and determination of whether the enrollee is being charged and is paying correct TennCare premium amounts. It is further provided that, before any agent or contractor may have access to the information, the agent or contractor shall execute an agreement with the bureau of TennCare or the office of inspector general, warranting that any information obtained as provided in this section shall remain confidential, shall not be disclosed by the agent or contractor to third parties or subcontractors, and that the agent or contractor shall limit the use to the purposes set forth in this section. The agreement shall further require that the contractor or agent return or destroy all confidential information received during the course of the contract or agency, and use appropriate safeguards to prevent use or disclosure other than as provided for by law and by the contract or agency agreement. Nothing in this subdivision (a)(1)(B)(v) shall be construed to prevent the office of inspector general from sharing the information with other public agencies, including law enforcement agencies, in the performance of the official duties of the office of inspector general and those agencies, as may be otherwise provided by law; or
        6. To the individual or employing unit to whom the records relate, or to their agents with a written authorization from the individual or employing unit.
      3. Any employee or commissioner’s designee or any employee of the commissioner or any public employee or contractor of a public employee in the performance of the public employee's or contractor's public duties or any employee, official or agent of a state or local child support agency, or employees of duly authorized agents of, or contractors with, the bureau of TennCare or the office of inspector general, who has received the information who violates this section commits a Class C misdemeanor.
    2. Information obtained by the division of employment security pursuant to the Social Security Act, § 1137, codified in 42 U.S.C. § 1320b-7, as added by § 2651 of the Deficit Reduction Act of 1984 (Pub. L. No. 98-369), shall be held confidential in accordance with subdivision (a)(1), § 1137(a)(5) of the Social Security Act, codified in 42 U.S.C. § 1320b-7(a)(5) and regulations described in § 1137(a)(5)(B) of the Social Security Act, codified in 42 U.S.C. § 1320b-7(a)(5)(B).
  1. Neither the commissioner, a commissioner’s designee, nor any employee of the department shall be required by any process to appear in any court to give evidence as to the contents of any official record of the division maintained pursuant to this chapter, but the evidence of non-confidential records may be introduced by deposition of any of them, which must be taken in the office of the department where the record is filed. The evidence also may be taken by interrogatories propounded to any of them, or by affidavit executed by any of them. Any subpoena or subpoena duces tecum issued contrary to this subsection (b) may be disregarded by any person or persons.
  2. All letters, reports, communications, or any other matters, either oral or written, from the employer or employee or former employee, to each other, or to the department, or to or by any of the agents, representatives or employees of any of them, which shall have been written, spoken, sent, delivered or made in connection with the requirements and administration of this chapter, shall be absolutely privileged, and shall not be made the subject matter or basis for any suit for libel or slander in any court.
  3. The cost of disclosure of information, other than for the proper administration of a claim, shall be paid by the requestor in accordance with 20 CFR 603.8(d).

Acts 1947, ch. 29, § 11; C. Supp. 1950, § 6901.11 (Williams, § 6901.35); Acts 1957, ch. 146, § 12; 1963, ch. 176, § 6; 1974, ch. 460, § 10; 1975, ch. 190, § 11; 1978, ch. 744, § 16; T.C.A. (orig. ed.), § 50-1339; Acts 1985, ch. 318, §§ 76, 77; 1985, ch. 323, § 6; 1989, ch. 591, § 113; 1997, ch. 104, § 5; 1999, ch. 520, § 41; 2003, ch. 191, §§ 5, 6; 2005, ch. 474, §§ 10, 11; 2008, ch. 728, §§ 1-5; 2010, ch. 1042, §§ 13-16.

Cross-References. Confidentiality of public records, § 10-7-504.

Penalty for Class C misdemeanor, § 40-35-111.

Collateral References.

Libel and slander: privileged nature of communication to other employees or employees' union of reason for plaintiff's discharge. 60 A.L.R.3d 1080.

Libel and slander: privileged nature of communications made in course of grievance or arbitration procedure provided for by collective bargaining agreement. 60 A.L.R.3d 1041.

Law Reviews.

A Primer on Unemployment Insurance Law for the General Practitioner (D. Bruce Shine, Sam Watridge, Donald F. Mason, Jr.), 23 No. 2 Tenn. B.J. 11 (1987).

Defamation in the Employment Setting (Robbin T. Sarrazin), 29 No. 3 Tenn. B.J. 18 (1993).

50-7-702. Oaths and witnesses — Disputed claims — Evidence.

In the discharge of the duties imposed by this part, an unemployment hearing officer, the commissioner, the commissioner’s designee, and any duly authorized representative of any of them shall have power to administer oaths and affirmations, take depositions, certify to official acts, and issue subpoenas to compel the attendance of witnesses, and the production of books, papers, correspondence, memoranda and other records deemed necessary as evidence in connection with a disputed claim or the administration of this part.

Acts 1947, ch. 29, § 11; C. Supp. 1950, § 6901.11 (Williams, § 6901.35); T.C.A. (orig. ed.), § 50-1340; Acts 2003, ch. 191, § 7; 2010, ch. 1042, § 17.

50-7-703. Subpoenas — Refusal to obey — Penalty.

In case of contumacy by or refusal to obey a subpoena issued to any person, any court of this state within the jurisdiction of which the inquiry is carried on, or within the jurisdiction of which the person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the commissioner or the commissioner’s designee, an unemployment hearing officer, or any duly authorized representative of any of them, shall have jurisdiction to issue to the person an order requiring that person to appear before the commissioner, the commissioner’s designee, an unemployment hearing officer, or any duly authorized representative of any of them, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question. Any failure to obey the order of the court may be punished by the court as a contempt of the court, and, in addition to the contempt proceeding, any person who without just cause fails or refuses to attend and testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda and other records, if it is in the person's power so to do, in obedience to a subpoena of the commissioner, the commissioner’s designee, an unemployment hearing officer or any duly authorized representative of any of them, commits a Class C misdemeanor.

Acts 1947, ch. 29, § 11; C. Supp. 1950, § 6901.11 (Williams, § 6901.35); T.C.A. (orig. ed.), § 50-1341; Acts 1989, ch. 591, § 113; 2003, ch. 191, § 8; 2010, ch. 1042, § 18.

Cross-References. Court's power to punish for contempt, § 16-1-103.

Penalty for Class C misdemeanor, § 40-35-111.

Punishment for contempt, title 29, ch. 9.

Law Reviews.

When Telling the Truth Costs You Your Job: Tennessee's Employment-at-Will Doctrine and the Need for Change (Chad E. Wallace), 39 No. 4 Tenn. B.J. 18 (2003).

NOTES TO DECISIONS

1. Constitutionality.

Chancery court properly dismissed a company's complaint seeking injunctive and declaratory relief for failure to state a claim for relief because the statutes at issue were not unconstitutional, there was a judicial determination of the reasonableness and legality of the request by the commissioner of the division of employment security for the company's business records and an opportunity to comply prior to the imposition of any sanction for failure to produce the records, the subpoenas issued by the Department of Labor and Workforce Development did not violate the company's right to due process of law, and the Fourth Amendment was satisfied where the procedure was not unconstitutionally coercive. Blue Sky Painting Co. v. Phillips, — S.W.3d —, 2016 Tenn. App. LEXIS 499 (Tenn. Ct. App. July 15, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 875 (Tenn. Nov. 17, 2016).

50-7-704. Protection against self-incrimination.

No person shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda and other records before the commissioner, an unemployment hearing officer, or any duly authorized representative of any of them, or in obedience to the subpoena of any of them in any cause or proceeding before the commissioner or an unemployment hearing officer, on the ground that the testimony or evidence, documentary or otherwise, required of the person may tend to incriminate the person or subject the person to a penalty or forfeiture; but no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which the individual is compelled after having claimed the individual's privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that the individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.

Acts 1947, ch. 29, § 11; C. Supp. 1950, § 6901.11 (Williams, § 6901.35); T.C.A. (orig. ed.), § 50-1342; Acts 2003, ch. 191, § 9; 2011, ch. 82, § 4.

Cross-References. Perjury, title 39, ch. 16, part 7.

50-7-705. Federal-state cooperation.

  1. In the administration of this chapter, the commissioner shall cooperate with the United States department of labor to the fullest extent consistent with this chapter, and shall take action, through the adoption of appropriate rules, regulations, administrative methods and standards, necessary to secure to this state and its citizens all advantages available under the Social Security Act, compiled in 42 U.S.C. § 301 et seq., that relate to unemployment compensation, the federal Unemployment Tax Act, compiled in 26 U.S.C. § 3301 et seq., the Wagner-Peyser Act, compiled in 29 U.S.C. § 49 et seq., and the Federal-State Extended Unemployment Compensation Act of 1970, found at 26 U.S.C. § 3304 note.
  2. In the administration of § 50-7-305, which is enacted to conform with the requirements of the Federal-State Extended Unemployment Compensation Act of 1970, the commissioner shall take action necessary to:
    1. Ensure that § 50-7-305 is interpreted and applied to meet the requirements of the Federal-State Extended Unemployment Compensation Act of 1970 found at 26 U.S.C. § 3304 note, as interpreted by the United States department of labor; and
    2. Secure to this state the full reimbursement of the federal share of extended benefits paid under this chapter that are reimbursable under the Federal-State Extended Unemployment Compensation Act of 1970.
  3. The commissioner may afford reasonable cooperation with every agency of the United States or of any state charged with administration of any unemployment insurance law.

Acts 1947, ch. 29, § 11; C. Supp. 1950, § 6901.11 (Williams, § 6901.35); modified; Acts 1971, ch. 204, § 12; T.C.A. (orig. ed.), § 50-1343; Acts 1999, ch. 520, § 41.

Attorney General Opinions. Positions funded by the unemployment insurance program may not be transferred and/or utilized by other programs, OAG 01-093 (6/4/01).

50-7-706. Reciprocal arrangements and cooperation.

  1. The commissioner shall participate in any arrangements for the payment of compensation on the basis of combining an individual's wages and employment covered under this chapter with the individual's wages and employment covered under the unemployment compensation laws of other states that are approved by the United States secretary of labor, in consultation with the state unemployment compensation agencies as reasonably calculated to assure the prompt and full payment of compensation in such situations and that include provisions for:
    1. Applying the base period of a single state law to a claim involving the combining of an individual's wages and employment covered under two (2) or more state unemployment compensation laws; and
    2. Avoiding the duplicate use of wages and employment by reason of the combining.
  2. The commissioner is authorized to enter into reciprocal arrangements with appropriate and duly authorized agencies of other states or of the federal government, or both, whereby:
    1. Services performed by an individual for a single employing unit for which services are customarily performed by the individual in more than one (1) state shall be deemed to be services performed entirely within any one (1) of the states in which:
      1. Any part of the individual's service is performed;
      2. The individual has the individual's residence; or
      3. The employing unit maintains a place of business; provided, that there is in effect, as to the services, an election by an employing unit with the acquiescence of the individual, approved by the agency charged with the administration of the state's unemployment compensation law, pursuant to which services performed by the individual for the employing unit are deemed to be performed entirely within that state;
    2. Potential rights to benefits accumulated under the unemployment compensation laws of one (1) or more states or under one (1) or more such laws of the federal government, or both, may constitute the basis for the payment of benefits through a single appropriate agency;
    3. Wages or services, upon the basis of which an individual may become entitled to benefits under an unemployment compensation law of another state or of the federal government, shall be deemed to be wages for insured work for the purpose of determining the individual's rights to benefits under this chapter, and wages for insured work, on the basis of which an individual may become entitled to benefits under this chapter, shall be deemed to be wages or services on the basis of which unemployment compensation under the law of another state or of the federal government is payable, but no such arrangement shall be entered into, unless it contains provisions for reimbursements to the fund for the benefits paid under this chapter upon the basis of the wages or services, and provisions for reimbursements from the fund for the compensation paid under the other law upon the basis of wages for insured work, that the commissioner finds will be fair and reasonable to all affected interests; and
    4. Premiums due under this chapter with respect to wages for insured work shall, for the purposes of §§ 50-7-401 — 50-7-403, be deemed to have been paid to the fund as of the date payment was made as contributions therefor under another state or federal unemployment law, but no such arrangement shall be entered into unless it contains provisions for the reimbursement to the fund of the premiums deemed paid that the commissioner finds will be fair and reasonable as to all affected interests.
    1. Reimbursements paid from the fund pursuant to subdivision (b)(3) shall be deemed to be benefits for the purpose of this chapter.
    2. The commissioner is authorized to make to other states or federal agencies, and to receive from other state or federal agencies, reimbursements from or to the fund, in accordance with arrangements entered into pursuant to subsection (b).
  3. To the extent permissible under the laws and constitution of the United States, the commissioner is authorized to enter into or cooperate in arrangements whereby facilities and services provided under this chapter and facilities and services provided under the unemployment compensation law of any foreign government may be utilized for the taking of claims and the payment of benefits under the Tennessee Employment Security Law, compiled in this chapter, or under a similar law of the foreign government.
  4. If a claimant has been overpaid benefits under the laws of another state and that state certifies to the department the facts involved and that the individual is liable under its law to repay the benefits and requests the department to recover the overpayment, the commissioner is authorized to deduct from future benefits payable to the claimant in either the current or any subsequent benefit year an amount equivalent to the amount of the overpayment determined by that state.

Acts 1947, ch. 29, § 11; C. Supp. 1950, § 6901.11 (Williams, § 6901.35); Acts 1971, ch. 204, § 13; T.C.A. (orig. ed.), § 50-1344; Acts 1985, ch. 317, § 4; 1985, ch. 318, § 78; 1986, ch. 597, § 9.

50-7-707. Destruction of records.

Destruction of records maintained by the division of employment security shall be accomplished pursuant to the terms of title 10, chapter 7, part 3; provided, that the records shall be retained for a period of time at least as long as may be necessary in order to comply with applicable federal law.

Acts 1951, ch. 139, § 10 (Williams, § 6901.35); Acts 1978, ch. 744, § 17; 1979, ch. 55, § 1; T.C.A. (orig. ed.), § 50-1345; Acts 1999, ch. 520, § 41.

50-7-708. Protection of rights and benefits — Penalty for violations.

    1. No agreement by an individual to waive, release or commute the individual's rights to benefits, or any other rights under this chapter, shall be valid.
    2. No agreement by any individual in the employ of any person or concern to pay all or any portion of an employer's premiums, required under this chapter from the employer, shall be valid.
    3. No employer shall directly or indirectly make, require or accept any deduction from wages to finance the employer's premiums required from the employer, or require or accept any waiver of any right under this chapter by any individual in the employer's employ.
    4. Any employer, or officer or agent of any employer, who violates this subsection (a) commits a Class C misdemeanor.
    1. No individual claiming benefits shall be charged fees of any kind in any proceedings under this chapter by the commissioner’s designee, the commissioner, or the commissioner's representatives, or by any court or any officer of the court; provided, that this subdivision (b)(1) shall not limit or affect the requirements of § 50-7-304(i)(5) with respect to giving bond for costs incident to the filing of a petition for certiorari for judicial review of any decision of the commissioner. Excluding attorney's fees, the uncharged fees shall be deemed a part of the expenses of administering this chapter.
    2. Any individual claiming benefits in any proceedings before the commissioner’s designee, the commissioner, or the commissioner's representatives, may be represented by counsel or other duly authorized agents. No counsel or agent shall either charge or receive from the individual for services rendered in representing the individual in the administrative proceedings more than any amount approved by the commissioner’s designee. Any counsel or agent seeking compensation for the services shall submit a written application to the commissioner's designee for prior approval of the compensation supported by details and information that the commissioner’s designee requires.
    3. Any individual claiming benefits in any proceedings before a court may be represented by counsel. No counsel shall either charge or receive from the individual for services rendered in representing the individual in the judicial proceedings more than an amount approved by the court before which the matter is pending. Any counsel seeking compensation for the services shall submit a written application, if required, to the court for prior approval of the compensation supported by details and information that court requires.
    4. Any person who violates this subsection (b) commits, for each offense, a Class C misdemeanor.
  1. No assignment, pledge or encumbrance of any right to benefits that are or may become due or payable under this chapter shall be valid. The rights to benefits shall be exempt from levy, execution, attachment or any other remedy whatsoever provided for the collection of debt. Benefits received by any individual, so long as they are not mingled with other funds of the recipient, are exempt from any remedy whatsoever for the collection of all debts, except debts incurred for necessaries furnished to the individual or the individual's spouse or dependents during the time when the individual was unemployed. No waiver of any exemption provided for in this subsection (c) is valid.
  2. In the case where a claimant has duly filed a claim for benefits and the claimant dies after the close of a week of unemployment in which the claimant was eligible and for which benefits are payable under this chapter, the division of employment security may designate any person who might in its judgment properly receive the benefits, and a receipt or an endorsement from the person so designated shall fully discharge the fund from liability for the benefits.

Acts 1947, ch. 29, § 15; C. Supp. 1950, § 6901.15 (Williams, § 6901.39); T.C.A. (orig. ed.), § 50-1349; Acts 1985, ch. 317, § 3; 1985, ch. 318, §§ 79, 80; 1989, ch. 591, § 113; 2010, ch. 1042, §§ 19, 20.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Law Reviews.

The Proper Scope of Nonlawyer Representation in State Administrative Proceedings: A State Specific Balancing Approach, 43 Vand. L. Rev. 245 (1990).

NOTES TO DECISIONS

1. Waiver or Commutation of Rights.

Employees who, pursuant to a contract between the employer and the union as their representative, received one week's pay during a two week vacation period while the plant was closed were not entitled to unemployment compensation during the second week of the vacation period. Bridges v. Cavalier Corp., 212 Tenn. 237, 369 S.W.2d 548, 1963 Tenn. LEXIS 418 (1963).

50-7-709. Misrepresentation to obtain benefits — Penalty.

  1. It is an offense for any person or entity to knowingly make a false statement or representation or fail to disclose a material fact, to obtain or increase any benefit or other payment under this chapter, either for the person's own benefit or for the benefit of any other person.
  2. Each false statement or representation or failure to disclose a material fact constitutes a separate offense.
  3. All prosecutions for offenses defined by this section shall be commenced within two (2) years after the commission of the offense.
    1. A violation of this section is a Class C misdemeanor.
    2. A second or subsequent violation of this section is a Class E felony; provided, that the second or subsequent violation of this section occurs after a conviction has been obtained for the previous violation.
    3. A first or subsequent violation of this section where the person has a prior conviction for a similar offense in another jurisdiction is a Class E felony; provided, that the second or subsequent violation occurs after a conviction has been obtained for the previous violation.
    4. Subdivision (d)(2) or (d)(3) shall only apply if at least one (1) of the required offenses occurs on or after January 1, 2010.

Acts 1947, ch. 29, § 16; C. Supp. 1950, § 6901.16 (Williams, § 6901.40); Acts 1963, ch. 176, § 7; T.C.A. (orig. ed.), § 50-1350; Acts 1989, ch. 591, § 113; 2009, ch. 479, § 4.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

Law Reviews.

Unemployment Compensation — Availability for Work — Labor Market as to Home Workers, 4 Vand. L. Rev. 206 (1951).

Collateral References.

Criminal liability for wrongfully obtaining unemployment benefits. 80 A.L.R.3d 1280.

General principles pertaining to statutory disqualification for unemployment compensation benefits because of strike or labor dispute. 63 A.L.R.3d 88.

What constitutes participation or direct interest in, or financing of, labor dispute or strike within disqualification provisions of unemployment compensation acts. 62 A.L.R.3d 314.

50-7-710. Misrepresentation to obtain benefits under other than Tennessee law — Penalty.

  1. It is an offense for any person to knowingly make a false statement or representation of a material fact or fail to disclose a material fact with intent to defraud by obtaining or increasing any benefit under the unemployment compensation law of any other state of the United States or of the federal government or of any of its territories, or of a foreign government, either for the person's own benefit or for the benefit of any other person.
  2. Each false statement or representation or failure to disclose a material fact constitutes a separate offense.
    1. A violation of this section is a Class C misdemeanor.
    2. A second or subsequent violation of this section is a Class E felony; provided, that the second or subsequent violation of this section occurs after a conviction has been obtained for the previous violation.
    3. A first or subsequent violation of this section where the person has a prior conviction for a similar offense in another jurisdiction is a Class E felony; provided, that the second or subsequent violation occurs after a conviction has been obtained for the previous violation.
    4. Subdivision (c)(2) or (c)(3) shall only apply if at least one (1) of the required offenses occurs on or after January 1, 2010.

Acts 1951, ch. 153, § 1 (Williams, § 11157.3); T.C.A. (orig. ed.), § 50-1351; Acts 1989, ch. 591, § 113; 2009, ch. 479, § 5.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

Collateral References.

Criminal liability for wrongfully obtaining unemployment benefits. 80 A.L.R.3d 1280.

50-7-711. Misrepresentation to prevent benefit payments or to evade premium liability — Penalty.

  1. Any employing unit, or any officer or agent of an employing unit, or any other person who makes a false statement or representation knowing it to be false, or who knowingly fails to disclose a material fact, to prevent or reduce the payment of benefits to any individual entitled to benefits, or to avoid becoming or remaining subject to this chapter, or to avoid or reduce any premium or other payment required from an employing unit under this chapter, or who willfully fails or refuses to make the premiums or other payments, or to furnish any reports required under this chapter, or to produce or permit the inspection or copying of records as required under this chapter, commits a Class E felony.
  2. Each false statement or representation or failure to disclose a material fact, and each day of the failure or refusal constitutes a separate offense.

Acts 1947, ch. 29, § 16; C. Supp. 1950, § 6901.16 (Williams, § 6901.40); Acts 1978, ch. 762, § 1; T.C.A. (orig. ed.), § 50-1352; Acts 1985, ch. 318, § 81; 1989, ch. 591, § 48.

Cross-References. Penalty for Class E felony, § 40-35-111.

NOTES TO DECISIONS

1. Applicability.

T.C.A. § 50-7-711 was not applicable and no public policy was violated by the discharge of an employee-at-will following her testimony in an unemployment compensation case where the employer did not interfere with her testimony but there was a difference of opinion about whether the employee's testimony was truthful. Harney v. Meadowbrook Nursing Center, 784 S.W.2d 921, 1990 Tenn. LEXIS 39 (Tenn. 1990), rehearing denied, — S.W.2d —, 1990 Tenn. LEXIS 95 (Tenn. Feb. 26, 1990).

50-7-712. Violations — Class E felony.

  1. Any person who willfully violates this chapter or any order, rule or regulation under this chapter, the violation of which is made unlawful, or the observance of which is required under the terms of this chapter, and for which a penalty is neither prescribed elsewhere in this chapter nor provided by any other applicable statute, commits a Class E felony.
  2. Each day the violation continues constitutes a separate offense.

Acts 1947, ch. 29, § 16; C. Supp. 1950, § 6901.16 (Williams, § 6901.40); Acts 1978, ch. 762, § 2; T.C.A. (orig. ed.), § 50-1353; Acts 1989, ch. 591, § 49.

Cross-References. Penalty for Class E felony, § 40-35-111.

NOTES TO DECISIONS

1. Constitutionality.

Chancery court properly dismissed a company's complaint seeking injunctive and declaratory relief for failure to state a claim for relief because the statutes at issue were not unconstitutional, there was a judicial determination of the reasonableness and legality of the request by the commissioner of the division of employment security for the company's business records and an opportunity to comply prior to the imposition of any sanction for failure to produce the records, the subpoenas issued by the Department of Labor and Workforce Development did not violate the company's right to due process of law, and the Fourth Amendment was satisfied where the procedure was not unconstitutionally coercive. Blue Sky Painting Co. v. Phillips, — S.W.3d —, 2016 Tenn. App. LEXIS 499 (Tenn. Ct. App. July 15, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 875 (Tenn. Nov. 17, 2016).

Collateral References.

Criminal liability for wrongfully obtaining unemployment benefits. 80 A.L.R.3d 1280.

50-7-713. Receiving payment for nondisclosure or misrepresentation of material fact — Class E felony.

  1. Any person who, by reason of the nondisclosure or misrepresentation by the person, or by another, of a material fact, irrespective of whether the nondisclosure or misrepresentation was known or fraudulent, has received any sum as benefits under this chapter while any conditions for the receipt of benefits imposed by this chapter were not fulfilled in the person's case, or while the person was disqualified from receiving benefits, shall, in the discretion of the administrator, either be liable to have the sum deducted from any future benefits payable to the person under this chapter or shall be liable to repay to the administrator for the unemployment compensation fund, a sum equal to the amount so received by the person, and the sum shall be collectible in the manner provided in § 50-7-404(b) for the collection of past-due premiums.
  2. Furthermore, any person who knowingly and willfully violates this section commits a Class E felony.

Acts 1947, ch. 29, § 16; C. Supp. 1950, § 6901.16 (Williams, § 6901.40); Acts 1978, ch. 762, § 3; T.C.A. (orig. ed.), § 50-1354; Acts 1985, ch. 318, § 82; 1989, ch. 591, § 50.

Cross-References. Penalty for Class E felony, § 40-35-111.

NOTES TO DECISIONS

1. Grounds for Reimbursement by Employee.

The Tennessee unemployment compensation statutes authorize and contemplate reimbursement from employees in appropriate cases, and these are not confined only to cases of misrepresentation or nondisclosure. Griggs v. Sands, 526 S.W.2d 441, 1975 Tenn. LEXIS 595 (Tenn. 1975).

50-7-714. Prosecutions — Representation in court.

    1. All criminal actions for violations of this chapter, or any rules or regulations issued pursuant to this chapter, shall be prosecuted by the district attorney general of the judicial district in which the violation occurs, or the attorney general and reporter, in which case a prosecutor shall be dispensed with and no prosecutor need be marked on the indictment for the violation.
    2. The grand juries of the state are given inquisitorial powers over the violations of this chapter.
  1. In the event any criminal actions for the violation of this chapter or any rules or regulations issued pursuant to this chapter should, in the opinion of the appropriate district attorney general, be initiated by a criminal warrant for the purpose of providing the accused a preliminary hearing to determine probable cause, the appropriate district attorney general or assistant district attorney general shall sign the warrant.

Acts 1947, ch. 29, § 17; C. Supp. 1950, § 6901.17 (Williams, § 6901.41); Acts 1977, ch. 330, § 28; 1978, ch. 762, § 4; 1979, ch. 422, § 14; T.C.A. (orig. ed.), § 50-1355.

50-7-715. Repayment of unemployment benefits as a result of a violation of this chapter — Interest on amount due — Appeal does not toll interest — Application of moneys received.

  1. Any person who has received unemployment benefits by knowingly misrepresenting, misstating, or failing to disclose any material fact, or by making a false statement or false representation without a good faith belief as to the correctness of the statement or representation, after a determination by the commissioner that such a violation has occurred, shall be required to repay the amount of benefits received.
    1. The commissioner shall assess a penalty equal to fifteen percent (15%) of the overpaid benefits as described in subsection (a), to comply with the requirements of 42 U.S.C. § 503(a)(11). Moneys collected by this penalty shall be deposited into the unemployment compensation fund as provided in § 50-7-501.
      1. For overpayments made prior to July 1, 2016, the commissioner shall further assess a penalty equal to seven and one-half percent (7.5%) of the overpaid benefits described in subsection (a).
      2. For overpayments made on or after July 1, 2016, the commissioner shall further assess a penalty equal to fifteen percent (15%) for the first instance of overpaid benefits described in subsection (a). “First instance” means all consecutive claim weeks of unemployment benefits paid within a benefit year to any person when such benefits were received by knowingly misrepresenting, misstating, or failing to disclose any material fact. The commissioner shall further assess a penalty equal to thirty-five percent (35%) for the second and each subsequent instance of overpaid benefits as described in subsection (a).
      3. Monies collected by penalties set out in this subdivision (b)(2) shall be used to defray the costs of deterring, detecting, or collecting overpayments. The penalty provided in this subdivision (b)(2) is in addition to the penalty provided in subdivision (b)(1).
    1. In addition to the requirements of subsections (a) and (b), the commissioner shall assess interest at a rate of no more than one and one-half percent (1.5%) per month on the total amount due that remains unpaid for a period of thirty (30) or more calendar days after the date on which the commissioner sends notice of the commissioner's determination that a violation has occurred to the last known address of the claimant. For purposes of this subdivision (c)(1), “total amount due” includes the unemployment benefits received pursuant to subsection (a) and the penalties provided for in subsection (b).
    2. A pending appeal of the order of the commissioner shall not suspend the assessment of interest on unemployment benefits obtained in violation of this chapter.
  2. Moneys received by the department in repayment of unemployment benefits and payment of penalties and interest pursuant to this section shall first be applied to the unemployment benefits received, then to any penalties due, and then to any interest due.

Acts 2009, ch. 479, § 3; 2012, ch. 824, § 7; 2015, ch. 95, § 8; 2016, ch. 751, § 4.

Amendments. The 2015 amendment rewrote (d) which read: “Moneys received by the department in repayment of unemployment benefits and payment of penalties and interest pursuant to subsections (a), (b)(2), and (c) shall first be applied to the unemployment benefits received, then to any interest due. These moneys shall be used by the department to defray the costs of deterring, detecting or collecting overpayments.”

The 2016 amendment, in (b)(2),  designated the former  first sentence as present (A) and added “For overpayments made prior to July 1, 2016,” at the beginning;  added (B);  designated the former last two sentences of the subdivision as  present (C)  and substituted “penalties set out in this subdivision (b)(2)” for “this penalty” in the first sentence.

Effective Dates. Acts 2015, ch. 95, § 9. July 1, 2015.

Acts 2016, ch. 751, § 6. July 1, 2016.

Part 8
Tennessee Works Act of 2012

50-7-801. Short title.

This part shall be known and may be cited as the “Tennessee Works Act of 2012.”

Acts 2012, ch. 1068, § 1.

50-7-802. Tennessee Works pilot program — Purpose.

  1. There is hereby established the Tennessee works pilot program to provide job training designed to attract new businesses to the state and to assist in the expansion or retention of existing businesses in this state.
  2. The purpose of the Tennessee works pilot program is to:
    1. Enhance this state's economic growth and vitality by offering assistance to privately owned businesses and industries in training a new workforce and by creating new jobs and retaining and upgrading existing jobs;
    2. Provide technical education and training as a component of this state's economic development efforts;
    3. Be flexible and responsive to the training needs of business and industry in this state; and
    4. Offering on-the-job training programs to support existing employees and dislocated workers.

Acts 2012, ch. 1068, § 1.

50-7-803. Part definitions.

As used in this part:

  1. “Department” means the department of labor and workforce development;
  2. “Dislocated worker” means an individual who:
    1. Has been terminated or laid off, or who has received a notice of termination or layoff from employment, including an individual:
      1. Currently eligible for unemployment insurance benefits; or
      2. Who has exhausted entitlement to unemployment insurance benefits;
    2. Has been terminated or laid off, or has received a notice of termination or layoff from employment as a result of any permanent closure of, or any substantial layoff at, a plant, facility, or enterprise, including a facility at which the employer has made a general announcement that the facility will close within one hundred eighty (180) days;
    3. Was self-employed, but is unemployed as a result of general economic conditions in the community in which the individual resides or because of natural disasters; or
    4. Is a displaced homemaker;
  3. “Displaced homemaker” means an individual who has been:
    1. Providing unpaid services to the individual's family members in the home; and
    2. Dependent on the income of another family member but is no longer supported by that income;
  4. “Eligible business” means a business determined by the department to be eligible for Tennessee works pilot program grants;
  5. “Eligible training expenses” means expenses determined by the department to be eligible for grants awarded through the Tennessee works pilot program; and
  6. “Trade adjustment assistance funds” means funds distributed in accordance with the federal Trade Adjustment Assistance Reform Act of 2002, compiled in title 19 of the United States Code.

Acts 2012, ch. 1068, § 1.

50-7-804. Administration — Reimbursable screening for potential employment of grants to private businesses.

  1. The department shall administer the Tennessee works pilot program by awarding reimbursable training grants to privately owned businesses for the purpose of screening for potential employment of new and existing employees in this state.
    1. Tennessee works pilot program training grants will be awarded to eligible businesses seeking to make new hires during or after the screening period. Such grants shall be used for the eligible training expenses of a dislocated worker:
      1. Who is a first-time unemployment insurance claimant. The claimant shall continue to receive unemployment insurance benefits during the screening period; or
      2. Whose job is lost due to workforce offshoring by the worker's former employer and who is currently under a valid trade petition approved by the United States department of labor.
      1. A Tennessee works pilot program screening period shall last for up to, but no more than, eight (8) weeks. At any time during the screening period or after the screening period, the employer may elect to employ a dislocated worker on a full-time basis.
        1. If an employer elects to employ the dislocated worker and to provide additional on the job training (OJT) to the dislocated worker, then the employer will be eligible to receive a wage offset in return for providing additional OJT to the dislocated worker. The employment and training of a dislocated worker pursuant to this subdivision (b)(2)(B)(i) shall be in accordance with the department's existing OJT program and the department's rules and policies regarding the existing OJT program.
        2. A dislocated worker shall no longer be eligible to receive unemployment insurance benefits or trade adjustment compensation if the dislocated worker is employed and receiving OJT pursuant to subdivision (b)(2)(B)(i). If the employer does not retain the dislocated worker following the OJT period and the dislocated worker is otherwise eligible to receive unemployment insurance benefits, then the dislocated worker can, upon filing a claim, resume receipt of unemployment insurance benefits.
    2. An employer shall no longer be eligible for grants through the Tennessee works pilot program if the employer does not demonstrate a pattern of continued employment of dislocated workers following the end of the OJT period.
  2. Trade adjustment assistance funds shall only be awarded:
    1. Through the Tennessee works pilot program pursuant to subdivision (b)(1)(B); and
    2. To be used in limited cases as an option to expedite employment where the conditions described in subdivision (b)(1)(B) exist.

Acts 2012, ch. 1068, § 1.

50-7-805. Funding — Organizations ineligible for grants.

  1. The Tennessee works pilot program established under this part shall be funded solely with funds received by the state from the United States department of labor and shall be subject to the availability of such funds and all laws governing the use of the funds.
  2. No Tennessee works pilot program grant shall be awarded to:
    1. Any state entity;
    2. Any county, city, town, or other political subdivision of this state; or
    3. Any organization or group of organizations, described in § 501(c)(3) of the Internal Revenue Code, codified in 26 U.S.C. § 501(c)(3), that is exempt from income tax under § 501(a) of the Internal Revenue Code, codified in 26 U.S.C. § 501(a).

Acts 2012, ch. 1068, § 1.

50-7-806. Rules.

The department has authority to adopt rules to effectuate this part. The rules shall be adopted in accordance with the rulemaking provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The department may also adopt emergency rules as determined to be necessary to effectuate this chapter, in accordance with the Uniform Administrative Procedures Act. No rule shall be adopted without prior hearing and notice as provided under the Uniform Administrative Procedures Act.

Acts 2012, ch. 1068, § 1.

50-7-807. Report concerning findings and recommendations.

On or before January 1, 2014, the department shall report to the commerce and labor committee of the senate and the business and utilities committee of the house of representatives concerning the department's findings and recommendations concerning the Tennessee works pilot program.

Acts 2012, ch. 1068, § 1; 2013, ch. 236, § 12.

50-7-451. Job skills program — Job skills fee — Job skills fund — Grants — Reports to general assembly.

Chapter 8
Marketplace Contractors

50-8-101. Chapter definitions.

As used in this chapter:

  1. “Marketplace contractor” means any individual, corporation, partnership, sole proprietorship, or other business entity that:
    1. Enters into an agreement with a marketplace platform to use the platform's online-enabled application, software, website, or system to receive connections to third-party individuals or entities seeking services in this state; and
    2. In return for compensation from the third-party or marketplace platform, offers or provides services to the third-party individuals or entities upon being given an assignment or connection through the marketplace platform's online-enabled application, software, website, or system; and
  2. “Marketplace platform” means a corporation, partnership, sole proprietorship, or other business entity operating in this state that:
    1. Offers an online-enabled application, software, website, or system that enables the provision of services by marketplace contractors to third-party individuals or entities seeking services; and
    2. Neither directly nor through any related party derives any benefit from work performed by marketplace contractors other than a subscription or use fee for placing marketplace contractors in assignments or otherwise providing connections.

Acts 2018, ch. 648, § 1.

Code Commission Notes.

Acts 2018, ch. 648, § 1 enacted a new chapter 10, §§ 50-10-10150-10-103, but the chapter has been redesignated as chapter 8, §§ 50-8-10150-8-103, by authority of the Code Commission.

Compiler's Notes. Former ch. 8, §§ 50-8-10150-8-117 (Acts 1972, ch. 727, §§ 1-17; 1976, ch. 806, § 1(98); 1977, ch. 24, §§ 1-6; 1980, ch. 504, §§ 1-3; T.C.A. 50-1401 — 50-1417; 1984, ch. 676, § 3), concerning employment agencies, was repealed by Acts 1984, ch. 865, § 24. For present law concerning personnel recruiting services, see title 47, ch. 18, part 17.

Acts 2018, ch. 648, § 2 provided that the act, which enacted this chapter, §§ 50-8-101 —- 50-8-103, shall apply to services provided through a marketplace platform on or after July 1, 2018.

Effective Dates. Acts 2018, ch. 648, § 2. July 1, 2018.

50-8-102. Marketplace contractors and marketplace platforms — Employment relationships.

  1. A marketplace contractor is an independent contractor and not an employee of the marketplace platform for all purposes under state and local laws, rules, ordinances, and resolutions if the following conditions are set forth in a written agreement between the marketplace platform and the marketplace contractor:
    1. The marketplace platform and marketplace contractor agree in writing that the contractor is an independent contractor with respect to the marketplace platform;
    2. The marketplace platform does not unilaterally prescribe specific hours during which the marketplace contractor must be available to accept service requests from third-party individuals or entities. If a marketplace contractor posts the contractor's voluntary availability to provide services, the posting does not constitute a prescription of hours for purposes of this subdivision (a)(2);
    3. The marketplace platform does not prohibit the marketplace contractor from using any online-enabled application, software, website, or system offered by other marketplace platforms;
    4. The marketplace contractor may, at its discretion, enlist the help of an assistant to complete the services, and the marketplace platform may require the assistant to complete the marketplace platform's standard registration and vetting process. If the marketplace contractor enlists the help of an assistant, the marketplace contractor, not the marketplace platform, is responsible for paying the assistant;
    5. The marketplace platform does not restrict the marketplace contractor from engaging in any other occupation or business;
    6. The marketplace platform does not require marketplace contractors to use specific supplies or equipment;
    7. The marketplace platform does not control the means and methods for the services performed by a marketplace contractor by requiring the marketplace contractor to follow specified instructions governing how to perform the services. However, the marketplace platform may require that the quality of the services provided by the marketplace contractor meets specific standards and requirements;
    8. The agreement or contract between the marketplace contractor and the marketplace platform may be terminated by either the marketplace contractor or the marketplace platform with or without cause;
    9. The marketplace platform provides no medical or other insurance benefits to the marketplace contractor, and the marketplace contractor is responsible for paying taxes on all income derived as a result of services performed to third parties from the assignments or connections received from the marketplace platform; and
    10. All, or substantially all, payment to the marketplace contractor is based on performance of services to third parties who have engaged the services of the marketplace contractor through the marketplace platform.
  2. This section does not apply to any service that is the type of service identified in 26 U.S.C. § 3306(c)(7) or (c)(8).

Acts 2018, ch. 648, § 1.

Code Commission Notes.

Acts 2018, ch. 648, § 1 enacted a new chapter 10, §§ 50-10-10150-10-103,  but the chapter has been redesignated as chapter 8, §§ 50-8-10150-8-103, by authority of the Code Commission.

Compiler's Notes. Former ch. 8, §§ 50-8-10150-8-117 (Acts 1972, ch. 727, §§ 1-17; 1976, ch. 806, § 1(98); 1977, ch. 24, §§ 1-6; 1980, ch. 504, §§ 1-3; T.C.A. 50-1401 — 50-1417; 1984, ch. 676, § 3), concerning employment agencies, was repealed by Acts 1984, ch. 865, § 24. For present law concerning personnel recruiting services, see title 47, ch. 18, part 17.

Acts 2018, ch. 648, § 2 provided that the act, which enacted this chapter, §§ 50-8-101 —- 50-8-103, shall apply to services provided through a marketplace platform on or after July 1, 2018.

Effective Dates. Acts 2018, ch. 648, § 2. July 1, 2018.

50-8-103. Applicability of chapter.

Nothing in this chapter applies to:

  1. A transportation network company, as defined in § 65-15-301; or
  2. A construction services provider, as defined in § 50-6-901.

Acts 2018, ch. 648, § 1.

Code Commission Notes.

Acts 2018, ch. 648, § 1 enacted a new chapter 10, §§ 50-10-10150-10-103,  but the chapter has been redesignated as chapter 8, §§ 50-8-10150-8-103, by authority of the Code Commission.

Compiler's Notes. Former ch. 8, §§ 50-8-10150-8-117 (Acts 1972, ch. 727, §§ 1-17; 1976, ch. 806, § 1(98); 1977, ch. 24, §§ 1-6; 1980, ch. 504, §§ 1-3; T.C.A. 50-1401 — 50-1417; 1984, ch. 676, § 3), concerning employment agencies, was repealed by Acts 1984, ch. 865, § 24. For present law concerning personnel recruiting services, see title 47, ch. 18, part 17.

Acts 2018, ch. 648, § 2 provided that the act, which enacted this chapter, §§ 50-8-101 —- 50-8-103, shall apply to services provided through a marketplace platform on or after July 1, 2018.

Effective Dates. Acts 2018, ch. 648, § 2. July 1, 2018.

50-8-104. Remittance of tip to marketplace contractor.

If a third party uses a marketplace platform's online-enabled application, software, website, or system to engage the services of a marketplace contractor and the marketplace platform provides an option for third parties to include a tip in connection with the transaction, then the marketplace platform shall remit the tip to the marketplace contractor and shall not retain any amount of a tip or use it to cover the marketplace platform's obligations to the marketplace contractor.

Acts 2020, ch. 788, § 1.

Effective Dates. Acts 2020, ch. 788, § 2. October 1, 2020.

Chapter 9
Drug-free Workplace Programs

Cross-References. Requirements for admission of results of breathalyzer, § 24-7-124.

50-9-101. Legislative intent.

  1. It is the intent of the general assembly to promote drug-free workplaces in order that employers in this state be afforded the opportunity to maximize their levels of productivity, enhance their competitive positions in the marketplace and reach their desired levels of success without experiencing the costs, delays and tragedies associated with work-related accidents resulting from drug or alcohol abuse by employees. It is also the intent of the general assembly that employers obtaining certification as a drug-free workplace under rules promulgated by the bureau should be able to renew that certification on an annual basis without requiring repeated annual training of existing employees; provided, however, the employer certifies on a form prescribed by the bureau that all existing employees have undergone training at least once and have acknowledged annually in writing the existence of the employer's drug-free workplace policy. It is further the intent of the general assembly that drug and alcohol abuse be discouraged and that employees who choose to engage in drug or alcohol abuse face the risk of unemployment and the forfeiture of workers' compensation benefits.
  2. If an employer implements a drug-free workplace program in accordance with this chapter, which includes notice, education and procedural requirements for testing for drugs and alcohol pursuant to rules developed by the division, the covered employer may require the employee to submit to a test for the presence of drugs or alcohol and, if a drug or alcohol is found to be present in the employee's system at a level prescribed by statute or by rule adopted pursuant to this chapter, the employee may be terminated and forfeits eligibility for workers' compensation medical and indemnity benefits. However, a drug-free workplace program must require the covered employer to notify all employees that it is a condition of employment for an employee to refrain from reporting to work or working with the presence of drugs or alcohol in the employee's body and, if an injured employee refuses to submit to a test for drugs or alcohol, the employee forfeits eligibility for workers' compensation medical and indemnity benefits.

Acts 1996, ch. 944, § 50; 1997, ch. 533, § 17; 2016, ch. 1056, § 3.

Compiler's Notes. Acts 1996, ch. 944, which enacted this chapter, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Amendments. The 2016 amendment added the second sentence in (a).

Effective Dates. Acts 2016, ch. 1056, § 6. July 1, 2016.

Law Reviews.

Employee Investigations: Representation Rights Expanded to Nonunion Employees (Mark H. Floyd), 36 No. 10 Tenn. B.J. 13 (2000).

Attorney General Opinions. Confidentiality of public employee's drug-free workplace program records in personnel records, OAG 99-126 (6/29/99).

The Tennessee department of correction is eligible to become a “covered employer” under the drug-free workplace program, OAG 04-019 (2/09/04).

If the Tennessee department of correction elects to implement a drug-free workplace program, it need not comply with T.C.A. § 41-1-121, OAG 04-019 (2/09/04).

If the Tennessee department of correction implements the drug-free workplace program, employees not in “safety-sensitive positions” may be required to submit to tests for alcohol only when the test is based upon “reasonable suspicion,” and employees in safety-sensitive positions may only be tested for alcohol use on particular occasions; provided such testing comports with federal law, its employees may be tested randomly for drugs, OAG 04-019 (2/09/04).

Drug-free workplace programs. OAG 14-52, 2014 Tenn. AG Lexis 52 (4/24/14)

Collateral References.

Validity and operation of pre-employment drug testing — State cases. 96 A.L.R.5th 485.

50-9-102. Applicability.

Sections 50-9-10350-9-111 apply to a drug-free workplace program implemented pursuant to rules adopted by the administrator of the bureau of workers' compensation. The application of this chapter is subject to the provisions of any applicable collective bargaining agreement. Nothing in the program authorized by this chapter is intended to authorize any employer to test any applicant or employee for alcohol or drugs in any manner inconsistent with federal constitutional or statutory requirements, including those imposed by the Americans with Disabilities Act, compiled in 42 U.S.C. § 12101 et seq. and the National Labor Relations Act, compiled in 29 U.S.C. § 151 et seq.

Acts 1996, ch. 944, § 50; 1997, ch. 533, § 18; 1999, ch. 520, § 41; 2014, ch. 903, § 10; 2015, ch. 341, § 16.

Amendments. The 2014 amendment substituted “the administrator of the division of workers' compensation” for “the commissioner of labor and workforce development” at the end of the first sentence.

The 2015 amendment substituted “bureau of workers' compensation” for “division of workers' compensation” at the end of the first sentence.

Effective Dates. Acts 2014, ch. 903, § 14. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

50-9-103. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Alcohol” has the same meaning in this chapter when used in the federal regulations describing the procedures used for testing of alcohol by programs operating pursuant to the authority of the United States department of transportation, currently compiled at 49 CFR part 40. It is intended that the definition shall change as the department of transportation's regulations are revised;
  2. “Alcohol test” means an analysis of breath, or blood, or any other analysis that determines the presence and level or absence of alcohol as authorized by the United States department of transportation in its rules and guidelines concerning alcohol testing and drug testing;
  3. “Chain of custody” refers to the methodology of tracking specified materials or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all such materials or substances, and providing for accountability at each stage in handling, testing and storing specimens and reporting test results;
  4. “Confirmation test,” “confirmed test” or “confirmed drug or alcohol test” means a second analytical procedure used to identify the presence of a specific drug or alcohol or metabolite in a specimen, which test must be different in scientific principle from that of the initial test procedure and must be capable of providing requisite specificity, sensitivity and quantitative accuracy;
  5. “Covered employer” means a person or entity that employs a person, is covered by the Workers' Compensation Law, compiled in chapter 6 of this title, maintains a drug-free workplace pursuant to this chapter and includes on the posting required by § 50-9-105 a specific statement that the policy is being implemented pursuant to this chapter. This chapter shall have no effect on employers who do not meet this definition;
  6. “Drug” means any controlled substance subject to testing pursuant to drug testing regulations adopted by the United States department of transportation. A covered employer shall test an individual for all such drugs in accordance with this chapter. The commissioner of labor and workforce development may add additional drugs by rule in accordance with § 50-9-111;
  7. “Drug or alcohol rehabilitation program” means a service provider that provides confidential, timely and expert identification, assessment and resolution of employee drug or alcohol abuse;
  8. “Drug test” or “test” means any chemical, biological or physical instrumental analysis administered by a laboratory authorized to do so pursuant to this chapter, for the purpose of determining the presence or absence of a drug or its metabolites pursuant to regulations governing drug testing adopted by the United States department of transportation or other recognized authority approved by rule by the commissioner of labor and workforce development;
  9. “Employee” means any individual who performs services for a covered employer for wages if the services performed by the individual qualify as an employer-employee relationship with the employer based upon consideration of the following twenty (20) factors as described in the twenty-factor test of Internal Revenue Service Revenue Ruling 87-41, 1987-1 C.B. 296:
    1. Instructions.   A worker who is required to comply with other persons' instructions about when, where, and how the worker is to work is ordinarily an employee. This control factor is present if the person or persons for whom the services are performed have the right to require compliance with instructions;
    2. Training.   Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meetings, or by using other methods indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner;
    3. Integration.   Integration of the worker's services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the workers who perform those services must necessarily be subject to a certain amount of control by the owner of the business;
    4. Services rendered personally.   If the services must be rendered personally, then presumably the persons for whom the services are performed are interested in the methods used to accomplish the work as well as in the results;
    5. Hiring, supervising, and paying assistants.   If the person or persons for whom the services are performed hire, supervise, and pay assistants, then that factor generally shows control over the workers on the job. However, if one (1) worker hires, supervises, and pays the other assistants pursuant to a contract under which the worker agrees to provide materials and labor and under which the worker is responsible only for the attainment of a result, then this factor indicates an independent contractor status;
    6. Continuing relationship.   A continuing relationship between the worker and the person or persons for whom the services are performed indicates that an employer-employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals;
    7. Set hours of work.   The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control;
    8. Full time required.   If the worker must devote substantially full time to the business of the person or persons for whom the services are performed, then the person or persons have control over the amount of time the worker spends working and impliedly restrict the worker from doing other gainful work. An independent contractor is free to work when and for whom the independent contractor chooses;
    9. Doing work on employer's premises.   If the work is performed on the premises of the person or persons for whom the services are performed, then that factor suggests control over the worker, especially if the work could be done elsewhere. Work done off the premises of the person or persons receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the worker is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform those services on the employer's premises. Control over the place of work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass territory within a certain time, or to work at specific places as required;
    10. Order or sequence set.   If a worker must perform services in the order or sequence set by the person or persons for whom the services are performed, then that factor shows that the worker is not free to follow the worker's own pattern of work but instead must follow the established routines and schedules of the person or persons for whom the services are performed. Often, because of the nature of an occupation, the person or persons for whom the services are performed do not set the order of the services or set the order infrequently. It is sufficient to show control, however, if the person or persons retain the right to do so;
    11. Oral or written reports.   A requirement that the worker submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control;
    12. Payment by hour, week, month.   Payment by the hour, week, or month generally points to an employer-employee relationship; provided, that this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job. Payment made by the job or on straight commission generally indicates the worker is an independent contractor;
    13. Payment of business or traveling expenses.   If the person or persons for whom the services are performed ordinarily pay the worker's business or traveling expenses, then the worker is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the worker's business activities;
    14. Furnishing of tools and materials.   The fact that the person or persons for whom the services are performed furnish significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship;
    15. Significant investment.   If the worker invests in facilities that are used by the worker in performing services and are not typically maintained by employees, such as the maintenance of an office rented at fair value from an unrelated party, then that factor tends to indicate that the worker is an independent contractor. However, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for the facilities and the existence of an employer-employee relationship;
    16. Realization of profit or loss.   A worker who can realize a profit or suffer a loss as a result of the worker's services, in addition to the profit or loss ordinarily realized by employees, is generally an independent contractor but the worker who cannot is an employee. For example, if the worker is subject to a real risk of economic loss due to significant investments or a bona fide liability for expenses, such as salary payments to unrelated employees, then that factor indicates that the worker is an independent contractor. The risk that a worker will not receive payment for the worker's services is common to both independent contractors and employees and does not constitute sufficient economic risk to support treatment as an independent contractor;
    17. Working for more than one firm at a time.   If a worker performs more than de minimis services for multiple unrelated persons or firms at the same time, then that factor generally indicates that the worker is an independent contractor. However, a worker who performs services for more than one (1) person may be an employee of each of the persons, especially where such persons are part of the same service arrangement;
    18. Making service available to general public.   The fact that a worker makes the worker's services available to the general public on a regular and consistent basis indicates an independent contractor relationship;
    19. Right to discharge.   The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer's instructions. An independent contractor cannot be fired so long as the independent contractor produces a result that meets the contract specifications; and
    20. Right to terminate.   If the worker has the right to end the worker's relationship with the person for whom the services are performed at any time the worker wishes without incurring liability, then that factor indicates an employer-employee relationship;
  10. “Employee assistance program” means an established program capable of providing expert assessment of employee personal concerns; confidential and timely identification services with regard to employee drug or alcohol abuse; referrals of employees for appropriate diagnosis, treatment and assistance; and follow-up services for employees who participate in the program or require monitoring after returning to work. If, in addition to those activities, an employee assistance program provides diagnostic and treatment services, these services shall in all cases be provided by the program;
  11. “Employer” means a person or entity that employs a person and that is covered by the Workers' Compensation Law, compiled in chapter 6 of this title;
  12. “Initial drug or alcohol test” means a procedure that qualifies as a “screening test” or “initial test” pursuant to regulations governing drug or alcohol testing adopted by the United States department of transportation or other recognized authority approved by rule by the administrator of the bureau of workers' compensation;
  13. “Job applicant” means a person who has applied for a position with a covered employer and who has been offered employment conditioned upon successfully passing a drug or alcohol test, and may have begun work pending the results of the drug or alcohol test;
  14. “Medical review officer” or “MRO” means a licensed physician, employed with or contracted with a covered employer, who has knowledge of substance abuse disorders, laboratory testing procedures and chain of custody collection procedures; who verifies positive, confirmed test results; and who has the necessary medical training to interpret and evaluate an employee's positive test result in relation to the employee's medical history or any other relevant biomedical information;
  15. “Reasonable-suspicion drug testing” means drug or alcohol testing based on a belief that an employee is using or has used drugs or alcohol in violation of the covered employer's policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience. Among other things, the facts and inferences may be based upon:
    1. Observable phenomena while at work, such as direct observation of drug or alcohol use or of the physical symptoms or manifestations of being under the influence of a drug or alcohol;
    2. Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance;
    3. A report of drug or alcohol use, provided by a reliable and credible source;
    4. Evidence that an individual has tampered with a drug or alcohol test during employment with the current covered employer;
    5. Information that an employee has caused, contributed to or been involved in an accident while at work; or
    6. Evidence that an employee has used, possessed, sold, solicited or transferred drugs or used alcohol while working or while on the covered employer's premises or while operating the covered employer's vehicle, machinery or equipment;
    1. “Safety-sensitive position” means a position involving a safety-sensitive function pursuant to regulations governing drug or alcohol testing adopted by the United States department of transportation. For drug-free workplaces, the commissioner is authorized, with the approval of the advisory council on workers' compensation, to promulgate rules expanding the scope of safety-sensitive position to cases where impairment may present a clear and present risk to co-workers or other persons;
    2. “Safety-sensitive position” means, with respect to any employer, a position in which a drug or alcohol impairment constitutes an immediate and direct threat to public health or safety, such as a position that requires the employee to carry a firearm, perform life-threatening procedures, work with confidential information or documents pertaining to criminal investigations or work with controlled substances; or a position in which a momentary lapse in attention could result in injury or death to another person; and
  16. “Specimen” means tissue, fluid or a product of the human body capable of revealing the presence of alcohol or drugs or their metabolites.

Acts 1996, ch. 944, § 50; 1997, ch. 533, §§ 19-24; 1998, ch. 1024, §§ 5, 6; 1999, ch. 520, § 41; 2014, ch. 903, § 11; 2015, ch. 341, § 16; 2019, ch. 337, § 5.

Compiler's Notes. Acts 2019, ch. 337, § 6 provided that the act, which amended this section, applies only to actions occurring on or after January 1, 2020.

Amendments. The 2014 amendment substituted “the administrator of the division of workers' compensation” for “the commissioner of labor and workforce development” at the end of the definition of “initial drug or alcohol test”.

The 2015 amendment substituted “bureau of workers' compensation for “division of workers' compensation” at the end of the definition of “initial drug or alcohol test”.

The 2019 amendment, effective January 1, 2020, rewrote the definition of “employee”, which read, “'Employee' means any person who works for salary, wages or other remuneration for a covered employer;”

Effective Dates. Acts 2014, ch. 903, § 14. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2019, ch. 337, § 6. January 1, 2020.

Cross-References. Confidentiality of public records, § 10-7-504.

Attorney General Opinions. Drug-free workplace programs. OAG 14-52, 2014 Tenn. AG Lexis 52 (4/24/14)

50-9-104. Testing for drugs or alcohol authorized — Conditions for testing — Effect of failure to comply.

  1. A covered employer may test a job applicant for alcohol or for any drug described in § 50-9-103; provided, that, for public employees, the testing shall be limited to the extent permitted by the Tennessee and federal constitutions. A covered employer may test an employee for any drug defined in § 50-9-103, and at any time set out in § 50-9-106. An employee who is not in a safety-sensitive position, as defined in § 50-9-103, may be tested for alcohol only when the test is based upon reasonable suspicion, as defined in § 50-9-103. An employee in a safety-sensitive position may be tested for alcohol use at any occasion described in § 50-9-106(a)(2)-(5), inclusive. In order to qualify as having established a drug-free workplace program that affords a covered employer the ability to qualify for the discounts provided under § 50-6-418 and deny workers' compensation medical and indemnity benefits and shift the burden of proof under § 50-6-110(c), all drug or alcohol testing conducted by covered employers shall be in conformity with the standards and procedures established in this chapter and all applicable rules adopted pursuant to this chapter. If a covered employer fails to maintain a drug-free workplace program in accordance with the standards and procedures established in this section and in applicable rules, the covered employer shall not be eligible for:
    1. Discounts under § 50-6-418;
    2. A shift in the burden of proof pursuant to § 50-6-110(c); or
    3. Denial of workers' compensation medical and indemnity benefits pursuant to this chapter. All covered employers qualifying for and receiving discounts provided under § 50-6-418 must be reported annually by the insurer to the division.
  2. The commissioner of labor and workforce development shall adopt a form pursuant to the commissioner's rulemaking authority, which form shall be used by the employer to certify compliance with this chapter. Substantial compliance in completing and filing the form with the commissioner shall create a rebuttable presumption that the employer has established a drug-free workplace program and is entitled to the protection and benefit of this chapter. Prior to granting any premium credit to an employer pursuant to § 50-6-418, all insurers and self-insured pools under chapter 6, part 4 of this title, shall obtain the form from the employer. No less frequently than monthly, insurers and self-insured pools shall submit the forms to the department of labor and workforce development. Any other employer desiring to establish a drug-free workplace shall file the form with the department.
  3. It is intended that any employer required to test its employees pursuant to the requirements of any federal statute or regulation shall be deemed to be in conformity with this section as to the employees it is required to test by those standards and procedures designated in that federal statute or regulation. All other employees of the employer shall be subject to testing as provided in this chapter in order for the employer to qualify as having a drug-free workplace program.

Acts 1996, ch. 944, § 50; 1997, ch. 533, §§ 25, 26; 1999, ch. 520, § 41.

50-9-105. Written policy statement.

  1. One (1) time only, prior to testing, a covered employer shall give all employees and job applicants for employment a written policy statement that contains:
    1. A general statement of the covered employer's policy on employee drug or alcohol use, which must identify:
      1. The types of drug or alcohol testing an employee or job applicant may be required to submit to, including reasonable-suspicion drug or alcohol testing or drug or alcohol testing conducted on any other basis; and
      2. The actions the covered employer may take against an employee or job applicant on the basis of a positive confirmed drug or alcohol test result;
    2. A statement advising the employee or job applicant of the existence of this section;
    3. A general statement concerning confidentiality;
    4. Procedures for employees and job applicants to confidentially report to a medical review officer the use of prescription or nonprescription medications to a medical review officer after being tested, but only if the testing process has revealed a positive result for the presence of alcohol or drug use;
    5. The consequences of refusing to submit to a drug or alcohol test;
    6. A representative sampling of names, addresses and telephone numbers of employee assistance programs and local drug or alcohol rehabilitation programs;
    7. A statement that an employee or job applicant who receives a positive confirmed test result may contest or explain the result to the medical review officer within five (5) working days after receiving written notification of the test result; that if an employee's or job applicant's explanation or challenge is unsatisfactory to the medical review officer, the medical review officer shall report a positive test result back to the covered employer; and that a person may contest the drug or alcohol test result pursuant to rules adopted by the department of labor and workforce development;
    8. A statement informing the employee or job applicant of the employee's responsibility to notify the laboratory of any administrative or civil action brought pursuant to this section;
    9. A list of all drug classes for which the employer may test;
    10. A statement regarding any applicable collective bargaining agreement or contract and any right to appeal to the applicable court;
    11. A statement notifying employees and job applicants of their right to consult with a medical review officer for technical information regarding prescription or nonprescription medication; and
    12. A statement complying with the requirements for notice under § 50-9-101(b).
  2. A covered employer shall ensure that at least sixty (60) days elapse between a general one-time notice to all employees that a drug-free workplace program is being implemented and the effective date of the program. The notice shall also indicate that on the effective date of the program that § 50-6-110(c) will apply to that employer.
  3. A covered employer shall include notice of drug and alcohol testing on vacancy announcements for positions for which drug or alcohol testing is required. A notice of the covered employer's drug and alcohol testing policy must also be posted in an appropriate and conspicuous location on the covered employer's premises, and copies of the policy must be made available for inspection by the employees or job applicants of the covered employer during regular business hours in the covered employer's personnel office or other suitable locations.
  4. Subject to any applicable provisions of a collective bargaining agreement or any applicable labor law, a covered employer may rescind its coverage under this chapter by posting a written and dated notice in an appropriate and conspicuous location on its premises. The notice shall state that the policy will no longer be conducted pursuant to this chapter. The employer shall also provide sixty (60) days' written notice to the employer's workers' compensation insurer of the rescission. As to employees and job applicants, the recession shall become effective no earlier than sixty (60) days after the date of the posted notice.
  5. The commissioner of labor and workforce development shall develop a model notice and policy for drug-free workplace programs.
  6. Any notice required by this section shall inform minors who are tested that the minor's parents or guardians will be notified of the results of tests conducted pursuant to this chapter.

Acts 1996, ch. 944, § 50; 1997, ch. 533, §§ 27-33; 1998, ch. 1024, § 7; 1999, ch. 520, § 41; 2001, ch. 160, § 2.

Cross-References. Confidentiality of public records, § 10-7-504.

50-9-106. Required drug or alcohol tests.

  1. To the extent permitted by law, a covered employer who establishes a drug-free workplace is required to conduct the following types of drug or alcohol tests:
    1. Job Applicant Drug and Alcohol Testing.  A covered employer must, after a conditional offer of employment, require job applicants to submit to a drug test and may use a refusal to submit to a drug test or a positive confirmed drug test as a basis for refusing to hire a job applicant. An employer may, but is not required to, test job applicants, after a conditional offer of employment, for alcohol. Limited testing of applicants, only if it is based on a reasonable classification basis, is permissible in accordance with division rule;
    2. Reasonable-Suspicion Drug and Alcohol Testing.  A covered employer must require an employee to submit to reasonable-suspicion drug or alcohol testing. A written record shall be made of the observations leading to a controlled substances reasonable suspicion test within twenty-four (24) hours of the observed behavior or before the results of the test are released, whichever is earlier. A copy of this documentation shall be given to the employee upon request, and the original documentation shall be kept confidential by the covered employer pursuant to § 50-9-109 and shall be retained by the covered employer for at least one (1) year;
    3. Routine Fitness-For-Duty Drug Testing.
      1. A covered employer shall require an employee to undergo drug or alcohol testing if, as a part of the employer's written policy, the test is conducted as a routine part of a routinely scheduled employee fitness-for-duty medical examination, or is scheduled routinely for all members of an employment classification or group; provided, that a public employer may require scheduled, periodic testing only of employees who:
        1. Are police or peace officers;
        2. Have drug interdiction responsibilities;
        3. Are authorized to carry firearms;
        4. Are engaged in activities that directly affect the safety of others;
        5. Work in direct contact with inmates in the custody of the department of correction; or
        6. Work in direct contact with minors who have been adjudicated delinquent or who are in need of supervision in the custody of the department of children's services.
      2. This subdivision (a)(3) does not require a drug or alcohol test if a covered employer's personnel policy on July 1, 1998, does not include drug or alcohol testing as part of a routine fitness-for-duty medical examination. The test shall be conducted in a nondiscriminatory manner. Routine fitness-for-duty drug or alcohol testing of employees does not apply to volunteer employee health screenings, employee wellness programs, programs mandated by governmental agencies, or medical surveillance procedures that involve limited examinations targeted to a particular body part or function.
    4. Follow-Up Drug Testing.  If the employee in the course of employment enters an employee assistance program for drug-related or alcohol-related problems, or a drug or alcohol rehabilitation program, the covered employer must require the employee to submit to a drug and alcohol test, as appropriate, as a follow-up to the program, unless the employee voluntarily entered the program. In those cases, the covered employer has the option to not require follow-up testing. If follow-up testing is required, it must be conducted at least once a year for a two-year period after completion of the program. Advance notice of a follow-up testing date must not be given to the employee to be tested; and
    5. Post-Accident Testing.  After an accident that results in an injury, as defined in chapter 3 of this title, and the rules promulgated under chapter 3 of this title, the covered employer shall require the employee to submit to a drug or alcohol test in accordance with this chapter.
  2. This chapter does not preclude an employer from conducting any lawful testing of employees for drugs or alcohol that is in addition to the minimum testing required under this chapter.

Acts 1996, ch. 944, § 50; 1997, ch. 533, §§ 34-39; 1998, ch. 1024, §§ 8-10.

Cross-References. Confidentiality of public records, § 10-7-504.

Collateral References.

Validity and operation of pre-employment drug testing — State cases. 96 A.L.R.5th 485.

50-9-107. Testing subject to department of transportation procedures — Verification — Chain of custody procedures — Costs — Discrimination on grounds of voluntary treatment prohibited.

  1. All specimen collection and testing for drugs and alcohol under this chapter shall be performed in accordance with the procedures provided for by the United States department of transportation rules for workplace drug and alcohol testing compiled at 49 CFR part 40.
  2. A covered employer may not discharge, discipline, refuse to hire, discriminate against or request or require rehabilitation of an employee or job applicant on the sole basis of a positive test result that has not been verified by a confirmation test and by a medical review officer.
  3. A covered employer that performs drug testing or specimen collection shall use chain-of-custody procedures established by regulations of the United States department of transportation or such other recognized authority approved by rule by the commissioner of labor and workforce development governing drug testing.
  4. A covered employer shall pay the cost of all drug and alcohol tests, initial and confirmation, that the covered employer requires of employees. An employee or job applicant shall pay the costs of any additional drug or alcohol tests not required by the covered employer.
  5. A covered employer shall not discharge, discipline or discriminate against an employee solely upon the employee's voluntarily seeking treatment, while under the employ of the covered employer, for a drug-related or alcohol-related problem if the employee has not previously tested positive for drug or alcohol use, entered an employee assistance program for drug-related or alcohol-related problems or entered a drug or alcohol rehabilitation program. Unless otherwise provided by a collective bargaining agreement, a covered employer may select the employee assistance program or drug or alcohol rehabilitation program if the covered employer pays the cost of the employee's participation in the program. However, nothing in this chapter is intended to require any employer to permit or provide a rehabilitation program.
  6. If drug or alcohol testing is conducted based on reasonable suspicion, the covered employer shall promptly detail in writing the circumstances that formed the basis of the determination that reasonable suspicion existed to warrant the testing. A copy of this documentation shall be given to the employee upon request and the original documentation shall be kept confidential by the covered employer pursuant to § 50-9-109, and shall be retained by the covered employer for at least one (1) year.

Acts 1996, ch. 944, § 50; 1997, ch. 533, §§ 40-43; 1999, ch. 520, § 41.

Cross-References. Confidentiality of public records, § 10-7-504.

50-9-108. Drug or alcohol use not a disability — Drug or alcohol use “cause” for firing or failure to hire — Miscellaneous provisions.

  1. An employee or job applicant whose drug or alcohol test result is confirmed as positive in accordance with this section shall not, by virtue of the result alone, be deemed to have a disability as defined under federal, state or local disability discrimination laws.
  2. A covered employer who discharges or disciplines an employee or refuses to hire a job applicant in compliance with this section is considered to have discharged, disciplined or refused to hire for cause.
  3. No physician-patient relationship is created between an employee or job applicant and a covered employer or any person performing or evaluating a drug or alcohol test, solely by the establishment, implementation or administration of a drug or alcohol testing program. This section in no way relieves the person performing the test from responsibility for acts of negligence in performing the tests.
  4. Nothing in this section shall be construed to prevent a covered employer from establishing reasonable work rules related to employee possession, use, sale or solicitation of drugs or alcohol, including convictions for offenses relating to drugs or alcohol, and taking action based upon a violation of any of those rules.
  5. This section does not operate retroactively, and does not abrogate the right of an employer under state law to lawfully conduct drug or alcohol tests, or implement lawful employee drug-testing programs. This chapter shall not prohibit an employer from conducting any drug or alcohol testing of employees that is otherwise permitted by law.
  6. If an employee or job applicant refuses to submit to a drug or alcohol test, the covered employer is not barred from discharging or disciplining the employee or from refusing to hire the job applicant; however, this subsection (f) does not abrogate the rights and remedies of the employee or job applicant as otherwise provided in this section.
  7. This section does not prohibit an employer from conducting medical screening or other tests required, permitted or not disallowed by any statute, rule or regulation for the purpose of monitoring exposure of employees to toxic or other unhealthy substances in the workplace or in the performance of job responsibilities. The screening or testing is limited to the specific substances expressly identified in the applicable statute, rule or regulation, unless prior written consent of the employee is obtained for other tests. The screening or testing need not be in compliance with the rules adopted by the department of labor and workforce development and department of health. If applicable, the drug or alcohol testing must be specified in a collective bargaining agreement as negotiated by the appropriate certified bargaining agent before the testing is implemented.
  8. No cause of action shall arise in favor of any person based upon the failure of an employer to establish a program or policy for drug or alcohol testing.

Acts 1996, ch. 944, § 50; 1997, ch. 533, § 44; 1999, ch. 520, § 41; 2011, ch. 47, § 53.

Compiler's Notes. Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of this legislation, which was July 1, 2011.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

50-9-109. Confidentiality of records — Parental notification.

  1. All information, interviews, reports, statements, memoranda and drug or alcohol test results, written or otherwise, received by the covered employer through a drug or alcohol testing program are confidential communications and may not be used or received in evidence, obtained in discovery or disclosed in any public or private proceedings, except in accordance with this section or in determining compensability under this chapter.
  2. Covered employers, laboratories, medical review officers, employee assistance programs, drug or alcohol rehabilitation programs and their agents who receive or have access to information concerning drug or alcohol test results shall keep all information confidential. Release of the information under any other circumstance is authorized solely pursuant to a written consent form signed voluntarily by the person tested, unless the release is compelled by a hearing officer or a court of competent jurisdiction pursuant to an appeal taken under this section, relevant to a legal claim asserted by the employee or is deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding. The consent form must contain, at a minimum:
    1. The name of the person who is authorized to obtain the information;
    2. The purpose of the disclosure;
    3. The precise information to be disclosed;
    4. The duration of the consent; and
    5. The signature of the person authorizing release of the information.
  3. Information on drug or alcohol test results for tests administered pursuant to this chapter shall not be released or used in any criminal proceeding against the employee or job applicant. Information released contrary to this section is inadmissible as evidence in the criminal proceeding.
  4. This section does not prohibit a covered employer, agent of the employer or laboratory conducting a drug or alcohol test from having access to employee drug or alcohol test information or using the information when consulting with legal counsel in connection with actions brought under or related to this section, or when the information is relevant to its defense in a civil or administrative matter. Neither is this section intended to prohibit disclosure among management as is reasonably necessary for making disciplinary decisions relating to violations of drug or alcohol standards of conduct adopted by an employer.
  5. A covered employer shall notify the parents or legal guardians of a minor of the results of any drug or alcohol testing program conducted pursuant to this chapter. Notwithstanding any other provisions of this section, an employer is authorized to disclose the results to parents and guardians and an employer shall not be liable for any disclosure permitted by this subsection (e).

Acts 1996, ch. 944, § 50; 1997, ch. 533, § 45; 2001, ch. 160, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

Attorney General Opinions. Confidentiality of public employee's drug-free workplace program records in personnel records, OAG 99-126 (6/29/99).

50-9-110. Prerequisites for processing test specimens — Licensure of testing laboratory.

  1. A laboratory may not analyze initial or confirmation test specimens unless:
    1. The laboratory is licensed and approved by the department of health, using criteria established by the United States department of health and human services as guidelines for modeling the state drug-free testing program pursuant to this section, or the laboratory is certified by the United States department of health and human services, the College of American Pathologists or other recognized authority approved by rule by the commissioner of labor and workforce development; and
    2. The laboratory complies with the procedures established by the United States department of transportation for a workplace drug test program or other recognized authority approved by the commissioner of labor and workforce development.
  2. Confirmation tests may only be conducted by a laboratory that meets the requirements of subdivisions (a)(1) and (2) and is certified by either the Substance Abuse and Mental Health Services Administration or the College of American Pathologists — Forensic Urine Testing Programs.

Acts 1996, ch. 944, § 50; 1997, ch. 533, § 46; 1999, ch. 520, § 41.

50-9-111. Rules and regulations — Guidelines for state testing program.

  1. The administrator of the bureau of workers' compensation is authorized to adopt rules, using the rules and guidelines adopted by the department of health and criteria established by the United States department of health and human services and the United States department of transportation as guidelines for modeling the state drug and alcohol testing program, concerning, but not limited to:
    1. Standards for licensing drug and alcohol testing laboratories and suspension and revocation of the licenses;
    2. Body specimens and minimum specimen amounts that are appropriate for drug or alcohol testing;
    3. Methods of analysis and procedures to ensure reliable drug or alcohol testing results, including the use of breathalyzers and standards for initial tests and confirmation tests;
    4. Minimum cut-off detection levels for alcohol, each drug or metabolites of the drug for the purposes of determining a positive test result;
    5. Chain-of-custody procedures to ensure proper identification, labeling and handling of specimens tested; and
    6. Retention, storage and transportation procedures to ensure reliable results on confirmation tests and retests.
  2. The administrator of the bureau of workers' compensation is authorized to adopt relevant federal rules concerning drug and alcohol testing as a minimum standard for testing procedures and protections that the administrator may exceed. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  3. The administrator of the bureau of workers' compensation shall consider drug testing programs and laboratories operating as a part of the College of American Pathologists — Forensic Urine Drug Testing Programs in issuing guidelines or promulgating rules relative to recognized authorities in drug testing.
  4. The administrator is authorized to set education program requirements for drug-free workplaces by rules promulgated in accordance with the requirements of the Uniform Administrative Procedures Act. The requirements shall not be more stringent than the federal requirements for workplaces regulated by the United States department of transportation rules. The requirements shall not require an employer to provide annual education or awareness training for each employee if all existing employees have undergone such training at least once and have acknowledged annually in writing the existence of the employer's drug-free workplace policy.

Acts 1996, ch. 944, § 50; 1997, ch. 533, §§ 7, 47, 48; 1999, ch. 520, § 41; 2011, ch. 410, § 10(f); 2014, ch. 903, § 12; 2015, ch. 341, § 16; 2016, ch. 1056, § 4.

Compiler's Notes. For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2014 amendment substituted “administrator of the division of workers' compensation” for “commissioner of labor and workforce development” throughout the section; substituted “administrator may exceed” for “commissioner may exceed” at the end of the first sentence of (b); and substituted “The administrator” for “The commissioner” at the beginning of present (d).

The 2015 amendment substituted “bureau of workers' compensation for “division of workers' compensation” throughout the section.

The 2016 amendment added the last sentence in (d).

Effective Dates. Acts 2014, ch. 903, § 14. July 1, 2014.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2016, ch. 1056, § 6. July 1, 2016.

50-9-112. Temporary employment agencies exempt from drug-free workplace requirements.

A temporary employment agency shall not be required by rule, regulation or policy of the department of labor and workforce development to implement a drug-free workplace pursuant to this chapter.

Acts 1998, ch. 1024, § 18; 1999, ch. 520, § 41.

50-9-113. State and local government construction contracts.

  1. Each employer with five (5) or more employees receiving pay who contracts with the state or any local government to provide construction services or who is awarded a contract to provide construction services or who provides construction services to the state or local government shall submit an affidavit stating that the employer has a drug-free workplace program that complies with this chapter, in effect at the time of the submission of a bid at least to the extent required of governmental entities. Any private employer that certifies compliance with the drug-free workplace program, only to the extent required by this section, shall not receive any reduction in workers' compensation premiums and shall not be entitled to any other benefit provided by compliance with the drug-free workplace program set forth in this chapter. Nothing in this section shall be construed to reduce or diminish the rights or privileges of any private employer who has a drug-free workplace program that fully complies with this chapter. For purposes of compliance with this section, any private employer shall obtain a certificate of compliance with the applicable portions of the Drug-free Workplace Act from the department of labor and workforce development. No local government or state governmental entity shall enter into any contract or award a contract for construction services with an employer who does not comply with this section.
  2. If it is determined that an employer subject to this section has entered into a contract with a local government or state agency and the employer does not have a drug-free workplace pursuant to this section, the employer shall be prohibited from entering into another contract with any local government or state agency until the employer can prove compliance with the drug-free workplace program pursuant to this section. If the same employer again contracts with any local government or state agency and does not have a drug-free workplace program pursuant to this section, then the employer shall be prohibited from entering into another contract with any local government or state agency for not less than three (3) months from the date the violation was discovered and verified and shall be prohibited from entering into another contract until the employer complies with the drug-free workplace program pursuant to this section. If the same employer for a third time contracts with any local government or state agency and does not have a drug-free workplace program pursuant to this section, then the employer shall be prohibited from entering into another contract with any local government or state agency for not less than one (1) year from the date the violation was discovered and verified and shall be prohibited from entering into another contract until the employer complies with the drug-free workplace program pursuant to this section.
  3. A written affidavit by the principal officer of a covered employer provided to a local government at the time the bid or contract is submitted stating that the employer is in compliance with this section shall absolve the local government of all further responsibility under this section and any liability arising from the employer's compliance or failure of compliance with this section.
  4. For the purposes of this section, “employer” does not include any utility or unit of local government. “Employer” includes any private company or corporation.

Acts 2000, ch. 918, §§ 1, 2.

Attorney General Opinions. An employer was barred from bidding on a contract under T.C.A. § 50-9-113, public contracting statutes and other provisions of the law where: (1) The employer submitted an affidavit stating that the employer had a drug-free workplace program with its bid for construction services for a board of education project; (2) The employer did not have a certificate of compliance from the department of labor and workforce development at the time the affidavit was submitted; (3) The employer subsequently provided information showing that it had obtained a certificate of compliance after the bid was submitted; and (4) The local board of education had independent knowledge that the employer did not have a certificate of compliance from the department of labor and workforce development at the time the affidavit was submitted, OAG 02-001 (1/2/02).

Where the local board of education had actual knowledge that an employer was not in compliance with the statute, T.C.A. § 50-9-113(c) did not apply, OAG 02-001 (1/2/02).

The board of education should award a contract to the next lowest bidder who has complied with T.C.A. § 50-9-113 when the low bid employer is not in compliance with the statute, OAG 02-001 (1/2/02).

A board of education should not reject all bids and re-bid an entire project unless all the bidders failed to comply with the terms of T.C.A. § 50-9-113, OAG 02-001 (1/2/02).

50-9-114. Information to be included within bid or procurement specifications for construction services — Contesting a contract.

  1. The state or any local government, including departments, divisions, or agencies thereof, shall include within any bid or procurement specifications for construction services the following information:
    1. A statement as to whether the governmental entity issuing a construction service bid or other procurement specification operates a drug-free workplace program as certified under this chapter or operates any other programs that provide for testing of employees for workplace use of drugs or alcohol;
    2. If operating such a program, a statement that describes the government entity's drug-free workplace or alcohol and drug testing program; and
    3. A statement that all bidders or proposals for construction services are required to submit an affidavit as part of their bid, that attests that the bidder operates a drug-free workplace program or other drug or alcohol testing program with requirements at least as stringent as that of the program operated by the governmental entity.
  2. Unless suit is filed in chancery court, employers shall have seven (7) calendar days to contest a contract entered into by employers subject to this section with a local government or state government. Employers that do not contest the contracts within seven (7) calendar days by filing suit in chancery court shall waive their rights to challenge the contracts for violating this section. The contracts shall be contested in chancery court in the county where the contract was entered. The trial of the alleged violation of this section shall be expedited by giving it priority over all cases on the trial docket, except workers' compensation cases.

Acts 2002, ch. 693, § 1.

50-9-115. Report of healthcare practitioner who tests positive for any drug or refuses to submit to drug test.

Notwithstanding this chapter, a covered employer who has employees who are healthcare practitioners for the purposes of § 63-1-126 shall report a healthcare practitioner who tests positive for any drug on any government or private sector preemployment or employer-ordered confirmed drug test, or who refuses to submit to a drug test, to the department of health and the practitioner's licensing or certifying board as required by §  63-1-126.

Acts 2017, ch. 481, § 4.

Effective Dates. Acts 2017, ch. 481, § 5. July 1, 2017.

50-9-116. Consideration of prescriptions issued within six months prior to positive confirmed drug result.

  1. As used in this section:
    1. “Issued” means the date that the licensed physician physically wrote or electronically transmitted the prescription to the pharmacy; and
    2. “Valid prescription” means a prescription that is written or electronically sent by a licensed practitioner for the individual subject to a drug test pursuant to this chapter and filled in a licensed pharmacy.
  2. Notwithstanding this chapter to the contrary, the medical review officer shall only consider prescriptions issued within six (6) months prior to a positive confirmed drug result for purposes of determining a valid prescription and immunity from actions authorized by this chapter following a positive confirmed drug result.

Acts 2019, ch. 373, § 1.

Effective Dates. Acts 2019, ch. 373, § 2. May 10, 2019.

Chapter 10
Tennessee Pregnant Workers Fairness Act

50-10-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Pregnant Workers Fairness Act.”

Acts 2020, ch. 745, §  1.

Effective Dates. Acts 2020, ch. 745, § 4. October 1, 2020; provided, that for the purpose of promulgating rules the act took effect June 22, 2020.

50-10-102. Chapter definitions.

As used in this chapter:

  1. “Commissioner” means the commissioner of labor and workforce development;
  2. “Employer” means a person employing fifteen (15) or more employees;
  3. “Reasonable accommodation” may include:
    1. Making existing facilities used by employees readily accessible and usable;
    2. Providing more frequent, longer, or flexible breaks;
    3. Providing a private place, other than a bathroom stall, for the purpose of expressing milk;
    4. Modifying food or drink policy;
    5. Providing modified seating or allowing the employee to sit more frequently if the job requires standing;
    6. Providing assistance with manual labor and limits on lifting;
    7. Authorizing a temporary transfer to a vacant position;
    8. Providing job restructuring or light duty, if available;
    9. Acquiring or modifying of equipment, devices, or an employee's work station;
    10. Modifying work schedules; and
    11. Allowing flexible scheduling for prenatal visits; and
  4. “Undue hardship” means an action requiring significant difficulty or expense.

Acts 2020, ch. 745, §  1.

Effective Dates. Acts 2020, ch. 745, § 4. October 1, 2020; provided, that for the purpose of promulgating rules the act took effect June 22, 2020.

50-10-103. Reasonable accommodations for pregnant workers — Medical certification.

  1. An employer is not required to do the following unless the employer does or would do so for another employee or a class of employees that need a reasonable accommodation:
    1. Hire new employees that the employer would not have otherwise hired;
    2. Discharge an employee, transfer another employee with more seniority, or promote another employee who is not qualified to perform the new job;
    3. Create a new position, including a light duty position for the employee,

      unless a light duty position would be provided for another equivalent employee;

    4. Compensate an employee for more frequent or longer break periods, unless the employee uses a break period that would otherwise be compensated; or
    5. Construct a permanent, dedicated space for expressing milk.
  2. It is an unlawful employment practice for an employer to:
    1. Fail or refuse to make reasonable accommodations for medical needs arising from pregnancy, childbirth, or related medical conditions of an applicant for employment or an employee, unless the employer demonstrates that the accommodation would impose an undue hardship on the operation of the business of the employer;
    2. Require an employee to take leave under a leave law or policy adopted by the employer if another reasonable accommodation can be provided to the known limitations for medical needs arising from the employee's pregnancy, childbirth, or related medical conditions; or
    3. Take adverse action against an employee in the terms, conditions, or privileges of employment for requesting or using a reasonable accommodation to the known limitations for medical needs arising from the employee's pregnancy, childbirth, or related medical conditions, including, but not limited to, counting an absence related to pregnancy under no fault attendance policies.
  3. An employer may, if required of other employees with medical conditions, request that an employee with a medical need relating to pregnancy, childbirth, or related medical conditions provide medical certification from a healthcare professional if the employee is requesting a reasonable accommodation related to temporary transfer to a vacant position, job restructuring, or light duty, or an accommodation that requires time away from work. During the time period in which an employee is making good faith efforts to obtain medical certification, an employer must begin engaging in a good faith interactive process with the employee to determine if a reasonable accommodation can be provided absent undue hardship. An employer shall not take adverse action against an employee related to the employee's need for accommodation while the employee is engaging in good faith efforts to obtain medical certification.

Acts 2020, ch. 745, §  1.

Effective Dates. Acts 2020, ch. 745, § 4. October 1, 2020; provided, that for the purpose of promulgating rules the act took effect June 22, 2020.

50-10-104. Enforcement — Rules — Civil action.

  1. The commissioner shall enforce this chapter and may promulgate rules necessary to effectuate this chapter in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  2. Any person adversely affected by an act in violation of this chapter may bring a civil action in the chancery court or circuit court in the jurisdiction where the alleged violation occurred. In the action, a court may issue back pay, compensatory damages, prejudgment interest, reasonable attorney's fees, and any legal or equitable relief that will effectuate the purpose of this chapter.
  3. A civil action under this chapter must be commenced no later than one (1) year from the date of termination of employment or the date of the adverse employment action. An employee is not required to pursue an action in chancery or circuit court, and may bring an action in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2020, ch. 745, §  1.

Effective Dates. Acts 2020, ch. 745, § 4. October 1, 2020; provided, that for the purpose of promulgating rules the act took effect June 22, 2020.