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2009 Amendments To Tennessee Workers' Compensation LawThe Tennessee Legislature recently amended the Tennessee Workers' Compensation Law. Two significant amendments are described below.
For injuries occurring on or after July 1, 2009, undocumented or unauthorized workers’ permanent partial disability awards are limited to one and one-half (1.5) times the medical impairment rating determined pursuant to Tenn. Code Ann. § 50-6-204(d)(3), provided 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. However, this presumption may be rebutted by the employee by clear and convincing evidence that the employer had actual knowledge of the unauthorized status of the employee at the time of hire, at the time of the injury or both. If the presumption is rebutted, the employer must pay a sum equal to five (5) times the medical impairment rating determined by the authorized treating physician, with one and one-half (1.5) times the medical impairment rating paid to the employee in a lump sum and the other three and one-half (3.5) paid by the employer to the uninsured employers fund. Significantly, the statute provides that this penalty is to be paid by the employer and not the insurer. This amendment will only apply in rare situations. Most employers make a good faith attempt to follow federal immigration law. This law will only limit those employers’ liability where the illegal status of their employee is discovered after the occurrence of the work injury (and where they can establish their good faith compliance with federal immigration law). For those few employers who do not comply with federal immigration law, there is a question as to whether they will come forward to challenge a PPD award in excess of 1.5 times the medical impairment rating knowing they (and not their insurer) are facing a penalty of 3.5 times the medical impairment rating. Moreover, it seems doubtful that the injured undocumented worker will voluntarily reveal his or her undocumented status for any reason, let alone when he or she risks limiting his or her permanent partial impairment award to 1.5 times the medical impairment rating in situations where he or she did not return to work at a wage equal to or greater than his or her pre-injury wage. Those employers who face the possibility of the sanction may be able to challenge the sanction by asserting that the Immigration Reform and Control Act of 1986 (IRCA) preempts state law imposing sanctions on employers for hiring undocumented workers.
The legislature amended Tenn. Code Ann. § 50-6-110 to add that no compensation will be allowed for injury or death due to an “employee’s voluntary participation in recreational, social, athletic, or exercise activities (including, but not limited to, athletic events, competitions, parties, picnics, exercise programs) whether or not the employer pays some or all the costs” of the event. However, the employee would be entitled to benefits under the Workers’ Compensation Law if (1) participation was expressly or impliedly required by the employer; (2) participation produced a direct benefit to the employer; (3) participation was during work hours and was part of the employees duties; or (4) the injury occurred because of an unsafe condition at a facility 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. This amendment became effective on June 11, 2009. Based on the amendment, we advise employers to play ball! - but only with volunteers and in a safe location.
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