Tennessee Injury Lawyer Blog

Search “construction worker hit by car” or some derivation thereof on any search engine and you will literally find hundreds of articles discussing incidents where construction workers who were working on roadside jobs were struck by vehicles and suffered serious injury or death. The human body is an amazing organism, but it is no match for a moving vehicle, whether it is a semi or a Smart Car. Tennessee recognizes that proper road maintenance necessitates that people such as construction workers, utility company employees, and litter crews will have to work on or along the road. Accordingly, the duty to drive as a reasonable person would dictates that drivers react appropriately where they know workers will be working on or near the road.

Very rarely does any work take place along the road without it being made clear to drivers in the area that such work is taking place nearby. Construction zones are often delineated by orange and white barrels and signs that declare that men are working in the area. Utility crews are usually likewise noted by barrels or orange cones and signs warning the driver that utility work is being conducted. Litter crews generally do not use barrels, but may use cones, trucks with flashing lights, and, in the case of certain litter crews, fashionable vests that indicate why a particular individual is assisting the road maintenance effort on that particular day. Such efforts are often conspicuous, and rarely will a defendant in a Knoxville personal injury suit be able to claim that he or she was unaware of work being done in the area where the accident occurred.

Continue reading "Avoiding Negligence in Construction Zones" »

Did you know that several thousands of eye injuries occur each year in the United States? Many of these injuries, in fact, are preventable, occurring as a result of someone else’s negligence. When an eye injury is caused by another’s negligent acts, eye injury lawyers can hold the negligent party responsible by ensuring that you receive fair and just compensation, including compensation for your medical bills, treatment costs and emotional damages.

Compensation, however, will depend on several factors—too detailed to discuss here. But you should know that eye injuries often occur on-the-job, particularly on construction jobs. Work-related injuries in Tennessee are covered under Tennessee’s workers’ compensation system. Under this system, you can be entitled to medical expenses, reasonable and necessary therapy and treatment, lost present and future wages, and other associated costs.

Since the comp laws are based on a no-fault system, you may be entitled to benefits for your eye injury even if you were at fault. Workers who have suffered an eye injury on-the-job may find it helpful to seek legal representation from a skilled East Tennessee workers compensation attorney.

Continue reading "East Tennessee Eye Injury Lawyer" »

If covered under Tennessee’s workers’ compensation system, your employer must furnish you, free of charge, with reasonably required medical treatment, surgical treatment, medicine, medical supplies and other medical necessities including hospitalization costs and reasonably necessary dental care.

When needing further medical treatment after injury, the employee is required to select from a list (panel) of three physicians provided by your employer. The selected physician will be your primary physician, who can, if necessary, refer you to a specialist. If you are not happy with your selected physician, you can request a new panel or you can seek a second opinion or obtain treatment with another healthcare provider at your own expense. However, only the authorized panel physician can set work restrictions to be followed by your employer.

As noted, the employer is required to pay for most “reasonably required” medical treatments and services. Sometimes, however, the value of services is disputed. When the value of services is in dispute, it must be determined by a court that has jurisdiction over the claim. In these instances, it is highly suggested that the employee seek out competent representation, particularly because a court can deny payment of physicians’ fees and hospital charges for failure to submit necessary reports.

Continue reading "Medical Treatment When Injured on the Job in Tennessee" »

Under Tennessee workers’ compensation law, the employer (and/or workers’ compensation carrier) and the employee have the right to settle a workers’ compensation claim without having to go to trial. However, the settlement must be reduced to writing and must be approved by a judge in either chancery or circuit court of the county in which the claim is entitled to be made.

Approval of the settlement rests on the trial court judge’s examination of the proposed settlement to determine whether the employee is substantially receiving the benefits that he/she would be entitled to under the compensation laws. If the judge approves, the judge will enter an order approving the settlement and binding the parties to the terms of the settlement agreement.

Before agreeing to settle, you should know that once the order is issued it is generally final. This means that the terms of settlement cannot be adjusted, according to the provisions of TCA 50-6-230. There is however an exception for awards payable periodically for more than six months, as outlined in TCA 50-6-231. This exception typically comes up when a settlement is approved and finalized, but, sometime later, the employee’s work-related injury worsens and produces greater incapacity than originally anticipated. In this instance, the employee has two choices: The employee can seek agreement to modify the award with the employer (or comp carrier), or, if the employer does not agree, the employee can petition the court to modify the settlement based on the ground of “increase or decrease of incapacity due solely to the injury.”

Continue reading "Settling a Workers’ Compensation Case in Tennessee" »

Compensation for permanent partial disability in a Tennessee workers’ compensation case is capped at 1.5 times the worker’s impairment rating if the worker sustained an injury after June 30, 2004, and made a “meaningful return to work” at the same rate of pay or more. This limitation can significantly limit the amount of benefits an injured worker can recover. As such, there is much litigation over what constitutes a “meaningful return to work”, particularly on allegation that the worker could physically return to work but failed or refused to do so.

The determination of meaningful return to work rests on the reasonableness of the employer in attempting to return the employee to work and the reasonableness of the employee in failing to either return to or remain at work. Thus, if a worker is physically able and permitted to return to work but refuses to do so, a court may cap her benefits according to law. For example, in Newton v. Scott Health Care, the worker refused to return to work after injury because he was not given special consideration as to shift hours. The court didn’t buy this excuse and limited his recovery.

However, in Haney v. Five Rivers Elec. Innovations, the court found unreasonable the employer who allowed the worker to return to work but then later terminated the employment due to no fault of the employee’s and with no assurance the he would be re-employed in the future.

Continue reading "Injured and Wanting to Return to Work in Tennessee?" »

In addition to the General Assembly’s modification of the case re-opening statute, several other changes were introduced or enacted in the summer of 2009. This entry serves to provide some basic information on these changes and proposals. The following discussion is not exhaustive and does not discuss the implications of the new Tennessee workers' compensation laws.

The State Legislature passed the “Overstreet Bill”, which replaces provisions found in TCA 50-6-204(a). The goal of the bill is to increase the efficiency of resolving workers’ compensation claims by establishing procedures for “reasonable” access to a worker’s medical records.

As introduced, a bill has been introduced that will limit compensation for an injury or death that occurs during a voluntary recreational activity. While the law provides that workers’ compensation only covers work-related injuries, this new bill, as introduced, specifically limits compensation for injuries sustained during recreational activities to those activities where participation was expressly required or where the employer derived a “substantial benefit from the activity beyond the intangible value of improvement in employee health and morale.”

An amendment has also added a new provision to TCA 50-6-241 in which an illegal immigrant worker’s maximum permanent partial disability benefits is capped at 1.5 times his/her assigned medical impairment rating. The new law applies to injuries occurring after July 1, 2009, and only applies if the employer did not knowingly hire the employee at a time when the employee was not eligible or authorized to work pursuant to federal immigration laws.

Continue reading "Other Workers' Compensation Law Changes for 2009" »

In July of 2009, the Tennessee General Assembly made several key changes to the workers’ compensation statutes. One key change involved modifications to TCA 50-6-241, which is the provision governing re-opening a case for reconsideration of industrial disability.

In most cases, workers' compensation in Tennessee for an injured employee will be reduced if he or she returns to work for the same rate of pay. But, once the worker loses her job through no fault of her own, she can file to re-open the case for more money if she does so within one year of losing her job.

A problem arises when your employer changes ownership. Does the employee lose his right to re-open the case if the employer sells the business and the employee fails to file a claim within one year of selling the business? The new law seems to answer this question in the negative.

According to the Legislature’s summary notes, the new law provides that “any employee who retains the right to reconsideration of an award of permanent partial disability benefits for a workers' compensation injury that occurs on or after July 1, 2009, and whose pre-injury employer is sold or acquired after such award is made, may seek reconsideration from the successor employer if either the employee's employment with the successor employer is involuntarily terminated through no fault of the employee or the employee's rate of pay is reduced to a level below the rate of pay that the employee had at the time of the injury.”

Continue reading "Re-Opening a Workers' Compensation Case After Losing Your Job in Tennessee" »

If you are injured at work while under the influence of a drug or alcohol and a drug test is performed proving that fact, your employer will likely deny you Tennessee workers’ compensation benefits. However, with proof that your accidental injury was caused by something else, your right to compensation can be restored.

Under T.C.A. 50-6-110, no compensation is allowed for an injury or death due to intoxication or illegal drug usage. The cause of injury due to intoxication or drug use is presumed if, at the time of injury:

• the employer had in place a drug-free workplace policy; and


• the employee blood alcohol concentration was equal to or greater than .08% and the employee worked in a non-safety sensitive position, or equal to or greater than .04% and the employee worked in a safety sensitive position.

The same is true if a blood test reveals the presence of a drug in the employee’s system. Drug tests often check for marijuana, cocaine and many prescription medications.

A worker can also be denied coverage if he or she is injured and subsequently refuses to take a drug test.

The law, however, allows workers to “rebut” the intoxication “presumption” whenever there is evidence that the TN personal injury was caused by something other than the employee’s ingestion of drugs or alcohol. This means that the employer only has to prove a positive drug test to shift the burden onto the employee to prove his or her intoxication did not cause the accidental injury.

Continue reading "Workers’ Compensation Defense in Tennessee: Alcohol and Drugs" »

When a security guard is killed at work, his or her surviving spouse, or spouse and children are entitled to death benefits if the employment is covered under Tennessee’s workers’ compensation law. These benefits are payable to an employee's survivors based upon a percentage of the employee's wages. The benefits are subject to a cap, but mandatory minimum benefits are provided regardless of the employee’s earnings. Burial allowances are also provided.

A security guard is also likely covered for any injuries he or she sustained as a result of a work-related injury. Lost wage benefits depend on the nature and extent of injuries, but, injured workers are typically entitled to medical and temporary disability benefits.

The benefits afforded to security guards and their families are good news given the risks associated with security work. In June, the Bureau of Labor Statistics released an important fact-sheet on work-related hazards for security guards. The report is based on sampling data for injuries, illnesses and fatalities sustained by security guards for the year 2007. According to the report, security guards face hazards different from that of the average worker. These hazards make security guards more likely than other workers to be fatally injured while working, but less likely to sustain a nonfatal injury or illness.

Continue reading "Injured Security Guards and Families Entitled to Workers’ Comp in Tennessee" »

The general rule in awarding injured workers compensation in Tennessee for work-related injuries is that employers “take injured workers as they find them.” This means that the presence of a pre-employment injury, disease or condition will not preclude the employer’s payment of compensation based on an accidental injury that aggravates a pre-employment injury. Likewise, if an employee injures his back while working for Employer A and then later re-aggravates the injury while working for Employer B, he can receive compensation for the subsequent injury regardless of his prior injury.

However, people with certain conditions can waive worker’s compensation for injuries resulting from the condition. The purpose in passing the waiver provisions is similar to the purpose of the second injury fund—to provide incentives for the hiring of impaired workers. The waivers apply to epilepsy, specific occupational diseases and heart disease. The following provisions control:

• T.C.A. 50-6-213 provides for an optional waiver for epileptics. Under the provision, epileptics may elect not to be subject to compensation provided certain procedures are followed. The waiver, however, does not apply to injuries that do not result from epilepsy.


• T.C.A. 50-6-307(a) provides for an optional waiver for workers or prospective workers who have been found to be affected by or susceptible to a specific occupational disease. To be valid, the waiver must be approved by the workers’ compensation division of the department of labor and workforce development.


• T.C.A. 50-6-307(b) provides for an optional waiver for workers or prospective workers that have a prior history of heart disease, heart attack or coronary failure or occlusion. If valid, the waiver only applies to claims growing out of an aggravation or repetition of the condition.

Continue reading "Employer’s Defenses to a Workers’ Compensation Claim: Waiver" »

Prior to bringing a civil suit in Knox County Circuit Court or Sevier County Circuit Court, an injured party will typically consult with an attorney to learn about his or her legal options. After learning the facts as conveyed by the injured party, the attorney will most often conduct preliminary investigations and consult the law about whether or not there is a valid claim. If there is a valid claim, the attorney will discuss with the client the possibility of bringing a claim.

Upon deciding to bring a claim, the personal injury attorney in Tennessee will draft a formal complaint to be filed with a court having jurisdiction over the particular type of claim. The complaint lists all the parties implicated in the suit and explains the grounds for which the suit is brought against the defendants. The complaint also describes the type and amount of damages requested. After the complaint is filed, the court will issue a summons to be served along with the complaint on all the defendants. This provides each defendant with notice that a complaint has been filed, the nature of the claims, and the time limit in which to respond. In answering the complaint, the defendant can challenge the court’s jurisdiction and assert any counter or cross claims against other parties.

Answers to complaints typically involve responses denying the material allegations of the claim. Additionally, the defendant’s answer will often include defenses that, if proven, would serve to defeat the plaintiff’s claim or reduce the damages award.

Continue reading "How Basic Civil Procedure Works in Tennessee" »

Neck and back injuries in the workplace are common in Tennessee. Sometimes the injury can be accidental, resulting from a fall or from a sudden strain. At other times, the injury can be gradually occurring, resulting from repetitive lifting.

While neck and back injuries can happen in any workplace environment, employees who work in the construction and manufacturing industries are at greater risk for sustaining such injuries. Certified nursing assistants (CNAs) and licensed practical nurses (LPNs) are also at an increased risk for sustaining a back or neck injury due to lifting and turning patients.

Common neck and back injuries suffered in which a person can generally receive workers compensation in Tennessee for include:

• Herniated disc (also called ruptured disc and slipped disc)


• Back strain


• Neck injury


• Spine injury


• Lower back injury.

Workers who sustain on-the-job back and neck injuries are entitled to medical benefits and temporary disability. However, when the personal injuries result in permanent partial or permanent total disability, injured workers are entitled to long-term benefits for lost earning capacity.

Continue reading "Tennessee Neck and Back Injuries in the Workplace" »

When someone is killed in Tennessee because of the fault or negligence of another, the victim’s surviving spouse, child, or parent may bring a wrongful death action in a Tennessee court.

Types of TN wrongful death claims include the following:

• Motor vehicle accident fatalities


• Work accidents


• Medical error


• Product defects

A wrongful death claim arising from a motor vehicle accident often results from the failure of another to exercise due care while operating his or her vehicle on the road. Examples of failure to exercise due care include following too closely, improper turns and excessive speeds.

Work-related accidents that cause the death of a loved one are covered under Tennessee’s workers’ compensation system. However, if a third party is responsible, the victim’s survivors can bring the wrongful death claim against that party. Some examples of third parties include manufacturers of defective work equipment and motorists who fail to exercise caution in road construction zones.

Medically-related types of medical death include medical malpractice, medical errors, failure to diagnose and failure to properly treat a condition or disease. Birth injuries and defects resulting from negligent conduct are also covered under Tennessee’s wrongful death statutes.

Continue reading "Types of Wrongful Death in Tennessee" »

Hearing loss is treated as a gradually occurring injury under Tennessee’s workers’ compensation laws. A gradually occurring injury has been described by the courts as a new injury each day at work; therefore, employees seeking compensation for hearing loss do not have to prove that they provided their employer with notice UNTIL they know or should know that their injury was caused by occupational noise exposure.

Typically, employees must notify their employer of a hearing loss personal injury in TN upon diagnosis by a medical doctor of hearing loss or tinnitus.

Hearing loss is compensated as a permanent partial disability under the workers’ compensation schedule of benefits. The award for complete permanent loss of hearing in both ears is sixty-six and two-thirds percent (66 2/3%) of the average weekly wages during one hundred fifty (150) weeks.

For permanent partial hearing loss, an employee is compensated in relation to an assessment of anatomical impairment and vocational disability. Anatomical impairment is assessed by a medical doctor and expressed as a percentage of “binaural hearing” loss.

Continue reading "Compensation for Work-Related Hearing Loss" »

Personal injuries on construction sites are an everyday occurrence in the United States and Tennessee. In fact, according to the Federal Bureau of Labor Statistics, more than 13 construction workers out of every 100,000 died on the job in 2006. The same report also indicated that six percent of all workers are either hurt or sickened while at work.

Not only are workers hurt on construction sites but so are innocent pedestrians and motorists. Each year, we hear of slip and fall injuries, pedestrian injuries and motor vehicle accidents that occur as a result of road, sidewalk or building construction. Sometimes, innocent parties and workers are injured because of negligent or careless handling of construction equipment, chemicals, machines, and tools. Falling objects are another example.

Common causes of construction injuries include:

• Falling from roofs and scaffolding


• Falling objects


• Toxic chemical exposure


• Defective machinery or equipment giving rise to products liability


• Explosions, fires, electrocution and chemical spills


• Insufficient training


• Lack of proper safety equipment


• Construction equipment on sidewalks and roads


• Failure to adhere to federal, state or municipal building codes and workplace safety regulations

Continue reading "What You Need to Know About Construction Accidents" »

Prior to the enactment of Tennessee Worker’s Compensation laws in 1919, employees could sue their employers for injuries caused by their employer’s negligence. In such suits, the employer could defend against the suit using the common law defense of contributory negligence.

The defendant asserting contributory negligence alleges that the plaintiff’s own fault contributed to the accidental injuries. Barring a few doctrinal exceptions, if the jury found the plaintiff to have contributed in any way to the accident, his or her claim would be precluded by operation of law. The harsh effect of the common law doctrine, however, was changed with the implementation of the modern comparative fault system. Basically, if the jury finds that the plaintiff contributed to the accident, the jury assesses the percentage of fault attributable to the plaintiff and then reduces the damages award accordingly.

Under the modern workers’ compensation system, the employer is precluded from asserting comparative fault if the work accident falls within the “coverage formula.” A claim falls within the coverage formula when the employee sustained an injury by accident or occupational disease arising out of and in the course of employment. If the accident or personal injury does not fall within the coverage formula, there is no assessment of fault for either the employer or employee unless there is an allegation of intentional conduct.

Continue reading "Tennessee Workers’ Compensation and Comparative Fault" »

In two previous articles, I have discussed how an employee’s misrepresentation of a physical condition or willful misconduct can operate to bar his or her otherwise valid workers’ compensation claim in Tennessee. In this article, the “notice defense” is discussed.

Under Tenn. Code Ann. § 50-6-201(a), workers’ compensation claims are barred unless:

• the employer has actual notice of an accidental injury, or


• the employer receives written notice within thirty days after the occurrence of the accident, or


• the employee has reasonable excuse for failing to provide such notice.

Actual Notice - Oral notice to a manager or supervisor is sufficient to constitute actual notice of an injury to the employer. For example, in the case Hotel Claridge, an employee sustained an injury to his leg when a board fell from scaffolding. He later went to lunch and shared news of his injury with the chief engineer without ever reporting the injury to an HR representative. The employer argued that proper notice was not provided, but the court disagreed stating that because the chief engineer had “charge of all the laborer employees of the hotel,…notice to him was notice to the employer.”

Written Notice - According to Tenn. Code Ann. §50-6-202, written notice must state the name and address of the employee, the time, place, and nature and cause of the accident, and must be signed by the employee. However, a subsection of this provision says that no defect or inaccuracy in the notice shall bar compensation, unless the employer can show that it was somehow prejudiced by the failure to give the proper notice.

Reasonable Excuse - Basically, the 30-day window to provide notice of a work-related injury in Tennessee does not start until the employee has knowledge of the nature and seriousness of the injury. Courts often find that an employee does not have knowledge of the nature and seriousness of the injury until his or her doctor informs the employee as such.

If your workers’ compensation claim has been denied based on an alleged failure to give adequate notice, you will want a skilled Knoxville workers’ compensation attorney who can help you prove that either 1) actual notice was provided, 2) you had a reasonable excuse for failing to provide notice, or 3) that the employer was not prejudiced by your failure to provide notice.

Let us hear your side of the story. Call 866-853-2888 to speak with a Tennessee personal injury lawyer.

Employees seeking resolution of disputed claims for Tennessee workers’ compensation benefits must exhaust the benefit review process before filing a claim with a court. If, however, the parties mutually agree to compromise and settle the claim, there is no need to satisfy this requirement.

The filing of a “request for assistance” with the Department of Labor and Workforce Development (TDOL) starts the benefit review process. Upon filing this request, a date for a “Benefit Review Conference” is assigned. The employee’s failure to attend this conference may result in a final dismissal of any potential claim for compensation.

In the Tennessee Code (TCA), the Benefit Review Conference (BRC) is described as a “non-adversarial, informal dispute-resolution proceeding that parties must attend in a workers’ compensation dispute before filing suit.” The BRC is conducted by an employee of the Department of Labor and Workforce Development who is qualified as a “workers’ compensation specialist.” This specialist presides over the Conference not as a judge, but as a mediator.

Settlement is the objective of the BRC, but any settlement reached must be done so voluntarily. For the settlement to be effective and binding, however, it must be approved by a court or the TDOL commissioner. When parties are not able to reach a compromise and settlement of all issues at the BRC, the employee may then file a complaint with a court.

Heavy burdens are placed on employees who seek review of their employers’ denial of workers’ compensation benefits. Not only is the employee often out of work, injured, and having to pay medical expenses out-of-pocket, but he or she also has to challengingly cut through a lot of red tape. In this situation, you will want a competent, skilled, and experienced Pigeon Forge workers' compensation attorney who can help you every step of the way. Call Baker Associates at 866-853-2888 today for a free consultation.

Courts have denied workers’ compensation in Tennessee when workers have misrepresented their physical condition in an application for employment. Employer’s asserting this defense must prove the following elements:

• The employee knowingly and willfully made a false representation as to his or her physical condition, and
• The employer relied upon the false representation, and the reliance was a substantial factor in the hiring, and
• A causal connection existed between the false representation and the injury.

A determination of whether the employee knowingly and willfully made a false statement is a fact sensitive inquiry. Often, the courts will look at the relative intelligence of the employee. In one case, a court accepted the employee’s explanation that he either overlooked or did not carefully read a question on a medical evaluation. In another case, the court found that the employee did not knowingly or willfully misrepresent his prior shoulder injury because the shoulder pain was minimal and had not caused him to miss work.

With regard to the second element, some courts have found an employer’s administering of a pre-employment physical examination as evidence favoring the worker. Although an employee may have misrepresented his or her physical condition, an employer who discovers or should have discovered the condition upon an examination cannot reasonably say it relied on the misrepresentation.

With regard to the last element—causation—the employer must prove that the misrepresented fact relates to the Tennessee personal injury for which compensation is sought. For example, a court recently excused plaintiff’s pre-employment failure to disclose his sarcoidosis because the exposure at the employer’s plant aggravated plaintiff’s asthma, not his sarcoidosis.

If your workers’ compensation claim has been denied based on your alleged misrepresentation, willful misconduct, or failure to provide notice, you will want an experienced Knoxville workers’ compensation attorney with the knowledge and skills to overcome these defenses. Call 866-853-2888 for a free consultation.

In Moore v. City of Manchester, an employee of the City of Manchester received a message that her sister had fallen and injured herself. She decided to leave in order to check on her sister. It seemed luck was not on her side that day when, as she reached her car, she tripped and broke her wrist on the pavement.

The City denied her Tennessee workers’ compensation claim on the grounds that she was on a personal errand. The trial court ruled in the employee’s favor and on appeal, the Workers’ Compensation Panel (“Panel”) affirmed.

In making this decision, the Panel relied on a rule stated in Lollar v. Wal-Mart. In Lollar, the Supreme Court examined a number of parking lot cases and adopted the following rule: “We hold today that 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. We further hold that if the employer has provided a parking area for its employees, that parking area is part of the employer’s premises.”

Despite what would seem to be a “bright line” rule, the employer argued that the Lollar rule was not applicable because Employee was embarking upon a purely personal errand—to see her injured sister.

Rejecting this argument, the Panel stated, that “[w]hile it is true that Employee was leaving Employer’s premises for a strictly personal reason, the same would be true of any employee who had completed her work day, and was in the process of going home, or going shopping or going to a restaurant.” Naturally, the Panel held against the Employer and levied a fine of $2,500 for bringing a frivolous appeal.

Score one for employees across Tennessee.

If you’ve been injured while at work and face a belligerent employer like the City of Manchester willing to go the distance (i.e., trial) to deny your claim, you will want an experienced workers’ compensation attorney who is also willing to go the distance for you. Call 866-853-2888 today to speak with a skilled Pigeon Forge workers’ compensation attorney at Baker Associates.