Tennessee Workers Compensation - Statutes

Nashville Tennessee Workers' Compensation
STATUTES (Title 50)

Here is the official on-line link to the Tennessee Workers Compensation Statutes which govern how your workers compensation case is handled.

If you go to the site referenced above you will discover that the State of Tennessee has not provided a convenient single reference website that explains Tennessee Workers' Compensation Law. Kevin Moore has extracted a few of the sections of general importance and they are listed below. If you have any questions about the law as it relates to your Tennessee Workers' Comp case you can call Kevin directly or use our Contact Form and we will get back to you immediately.

50-6-201. Notice of injury

(a) 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.

(b) 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.

(c) 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.

50-6-202. Contents and service of notice

(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.

50-6-203. Limitation of time, claims and actions

(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.

(c) 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.

(d) 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.

(e) (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.

(f) 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.

(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.

(i) 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.

50-6-204. Medical treatment, attendance and hospitalization - Release of medical records - Reports - Disputesv Reimbursement or payment of expenses - Burial expenses - Physical examinations. - [Amended effective January 1, 2011

(a) (1) (A) The employer or the employer's agent shall furnish free of charge to the employee such medical care and treatment made reasonably necessary by accident as defined in this chapter, including medical and surgical treatment, medical and surgical supplies, hospitalization, nursing services, psychological services, dental services, crutches, artificial members, and prescription eyeglasses or eyewear.

(B) 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).

(2) (A) It is the intent of the general assembly that the administration of the workers' compensation system proceed in a timely manner and that the parties and the 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 the persons comply with subdivision (a)(2)(C).

(B) For the 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 and any utilization review agent as authorized by § 50-6-124 during the employee's treatment for the claimed workers' compensation injury.

(C) 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 an 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 for injuries occurring on or after July 1, 2009. The form shall be addressed to a specific medical provider authorized by the employer pursuant to this section, shall permit the release of information through communication, either orally or in writing, as authorized under this subdivision (a)(2)(C), and shall 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 any attorney representing the employee shall be entitled to obtain medical information, records or reports from, or communicate in writing or in person with, any medical provider that has treated or provided medical care to the employee; provided, that the employee executes and provides the medical provider with an appropriate written authorization;

(iii) Any medical provider authorized by the employer pursuant to this section that has treated or provided medical care to an employee claiming workers' compensation benefits shall not communicate, orally or in writing, with the employer or the department except in the manner permitted by this subdivision (a)(2)(C);

(iv) Any request by the employer for medical information, medical records or medical reports pertaining to the claimed workers' compensation injury shall be in writing and a copy of the written request shall be provided to the employee and any attorney representing the employee at the time the written request is sent to the provider;

(v) Any form of written communication by an employer to or with a medical provider as defined by this section, other than a request pursuant to subdivision (a)(2)(C)(iv), is prohibited unless the employee and any attorney representing the employee are included as recipients of the written communication, are provided copies of any material or information provided to the medical provider, and the employer provides any response to the communication from the medical provider to the employee or the employee's attorney within seven (7) calendar days of the employer's receipt of the response;

(vi) Oral communication, including, but not limited to, telephone or face-to-face conversations, by the employer, other than an attorney representing the employer, with a medical provider authorized by the employer pursuant to this section is permitted upon the condition that in the event the oral communication occurs, the employer representative provides the employee or any attorney representing the employee with a written summary of any opinions or statements of the medical provider regarding the employee's injury or illness, medical condition or care during the oral communication within seven (7) days of a request by the employee or any attorney representing the employee;

(vii) Any form of oral communication, including, but not limited to, telephone or face-to-face conversations, by an attorney representing the employer with a medical provider authorized by the employer pursuant to this section is prohibited unless:

(a) The employee and any attorney representing the employee have received written notice of the intended communication at least seven (7) days in advance of the intended oral communication; and

(b) In the event the oral communication occurs, the employer representative shall provide the employee and any attorney representing the employee with a written summary of all opinions and statements of the medical provider during the oral communication within seven (7) days of the communication;

(viii) In the event an employee or employer files a request for assistance with the department requesting assistance with a determination as to whether the claim is compensable or with the determination of an issue related to medical benefits or temporary disability benefits, any request by the department for medical information, medical records, medical reports or medical opinions may be oral or in writing; provided, however, that:

(a) Any response by the medical provider to the department's request shall be provided in writing; and

(b) In the event the department receives documents or written responses to any request for information permitted by this subdivision (a)(2)(C)(viii), the department shall notify the employee, 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 and, if copies of documents are requested, the requesting party shall pay the copying fee authorized by this subsection (a) before copies are provided; and

(ix) In the event the department becomes involved in the appeal of a utilization review issue, 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; and if copies of any written documents are requested, the requesting party shall pay the copying fee authorized by this subsection (a) before copies are provided.

(D) No relevant information developed in connection with authorized medical treatment or 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, medical records or medical reports as described in subdivision (a)(2)(C); provided, that the applicable provisions of subdivision (a)(2)(C) are followed by the medical provider.

(3) 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).

(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.

(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.

(6) (A) 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.

(B) 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.

(b) (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.

(c) 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.

(d) (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) (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.

(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 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.

(6) 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.

(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.

(e) 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.

(f) 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.

(g) (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.

(2) (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.

(h) 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).

(i) (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.

(4) (A) 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.

[Effective until January 1, 2011. See the Compiler's Notes.]

(B) For purposes of this subsection (i), unless the context otherwise requires, a “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 subsection (i) shall be construed to permit the creation of preferred provider organization networks that permit payments above the medical fee schedule adopted by the department.

[Effective until January 1, 2011. See the Compiler's Notes.]

(C) Beginning January 1, 2008, every contracting agent that sells, leases, assigns, transfers, or conveys its list of contracted health care providers and their contracted reimbursement rates shall, upon entering or renewing a provider contract, do all of the following:

(i) Disclose to the provider whether the list of contracted providers may be sold, leased, transferred, or conveyed to other payors or agents, including workers' compensation insurers or self insured. The disclosure of the ability to sell, lease, transfer or convey the list or network of providers shall be in a section of a contract titled “assignment” or “assignability” or similar title;

(ii) Disclose whether payors to which the list of contracted providers may be sold, leased, transferred, or conveyed may be permitted to pay a provider's contracted rate if less than the workers' compensation fee schedule. The disclosure of the ability to pay a 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;

(iii) Allow providers, upon the initial signing or renewal of a 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,

(iv) 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 providers and updated at least twice a year, as well as maintain a toll-free telephone number accessible to all contracted providers whereby providers may access workers' compensation payor summary information and a list of lessees of the network.

[Effective until January 1, 2011. See the Compiler's Notes.]

(D) Beginning January 1, 2008:

(i) The workers' compensation payor's explanation of benefits or explanation of review shall identify the name of the network that has a written agreement signed by the provider whereby the workers' compensation payor is entitled, directly or indirectly, to pay a preferred rate for the services rendered; and

(ii) A workers' compensation payor shall demonstrate that it is entitled to pay a contracted rate within thirty (30) business days of receipt of a written request from a provider who has received a claim payment from the workers' compensation payor. The 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 provider to include 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 identifies the contracting agent who has contracted with the medical provider to pay the reimbursement at the contracted rate.

50-6-205. Period of compensation - Maximum amount - Notice of payment, change or nonpayment - Records - Notice of controversy.

(a) 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.

(b) (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.

(3) (A) 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).

(B) 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.

(C) 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).

(D) 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).

(c) (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).

(d) (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.

50-6-206. Settlements

(a) (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:

(A) If a workers' compensation claim is settled by the parties, the parties shall not agree to compromise and settle the issue of future medical benefits for a period of three (3) years from the date on which the settlement is approved. No settlement agreement shall be approved that contains any language inconsistent with this subdivision (a)(2).

(B) After the expiration of the three-year period, if the parties mutually agree to a compromise and settlement on the issue of future medical benefits, the parties shall not be required to request a benefit review conference. Instead, the parties shall submit the agreement to the proper court for approval, pursuant to this subsection (a) or to the commissioner or the commissioner's designee pursuant to subsection (c).

(C) 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.

(D) Nothing in this section shall be construed to prohibit the parties from compromising and settling at any time the issue of future medical benefits on any schedule member injury not subject to § 50-6-241(d)(1)(A).

(b) Notwithstanding any other provision of this section, whenever there is a dispute between the parties as to whether or not a claim is compensable, or a dispute 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, however, that the settlement paid to the employee shall not exceed fifty (50) times the minimum weekly benefit rate as of the date of the claimed injury. If the parties settle the matter pursuant to this subsection (b), the employee shall be entitled to no future medical benefits and no settlement agreement between the parties shall be approved by either the court or the commissioner or the commissioner's designee, if the settlement agreement contains an amount of money designated or allocated for future medical benefits. The settlement must be determined by the court or the commissioner or the commissioner's designee to be in the best interest of the employee.

(c) (1) The commissioner or the commissioner's designee may approve a proposed settlement among the parties if:

(A) The settlement agreement has been signed by the parties;

(B) 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

(C) 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.

(3) (A) 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).

(B) 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).

(4) 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.

(5) 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.

50-6-207. Schedule of compensation

The following is the schedule of compensation to be allowed employees under this chapter:

(1) Temporary Total Disability.

(A) 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;

(B) (i) 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;

(ii) 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;

(C) 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;

(D) 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:

(i) At the time the treating psychiatrist concludes the employee has reached maximum medical improvement;

(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

(iii) One hundred four (104) weeks after the date of injury in the case of mental injuries where there is no underlying physical injury;

(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;

(2) Temporary Partial Disability. In all cases of temporary partial disability, the compensation shall be sixty-six and two-thirds percent (662/3%) 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.

(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 (662/3%) 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 (662/3%) 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 (662/3%) 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 (662/3%) of the average weekly wages during thirty-five (35) weeks;

(c) For the loss of a second finger, sixty-six and two-thirds percent (662/3%) of the average weekly wages during thirty (30) weeks;

(d) For the loss of a third finger, sixty-six and two-thirds percent (662/3%) 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 (662/3%) 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 (662/3%) 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 (662/3%) 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 (662/3%) of the average weekly wages during one hundred fifty (150) weeks;

(m) For the loss of an arm, sixty-six and two-thirds percent (662/3%) of the average weekly wages during two hundred (200) weeks;

(n) For the loss of a foot, sixty-six and two-thirds percent (662/3%) 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 (662/3%) 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 (662/3%) 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 (662/3%) 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 (662/3%) 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 (662/3%) 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 (662/3%) 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 (662/3%) 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 (662/3%) of the average weekly wages during four hundred (400) weeks;

(x) For the loss of two (2) hands, sixty-six and two-thirds percent (662/3%) of the average weekly wages during four hundred (400) weeks;

(y) For the loss of two (2) legs, sixty-six and two-thirds percent (662/3%) of the average weekly wages during four hundred (400) weeks;

(z) For the loss of two (2) feet, sixty-six and two-thirds percent (662/3%) 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 (662/3%) 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 (662/3%) 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 (662/3%) 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 (662/3%) 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 (662/3%) 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 (662/3%) 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;

(4) Permanent Total Disability.

(A) (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;

(ii) 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:

(a) 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;

(b) The commuted portion of an award shall not exceed the value of one hundred (100) weeks of the employee's benefits;

(c) 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);

(iii) Attorneys' fees in contested cases of permanent total disability shall be calculated upon the first four hundred (400) weeks of disability only;

(iv) In case an employee who is permanently and totally disabled becomes an inmate 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, if non compos mentis, to be spent for the ward's benefit; such payments to cease upon the death of the employee;

(B) 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;

(C) (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);

(ii) 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;

(iii) 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:

(a) 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;

(b) 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;

(c) 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;

(d) 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;

(e) 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;

(f) 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;

(g) 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

(h) 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;

(iv) 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;

(v) 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;

(vi) 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;

(vii) 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:

(a) 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;

(b) The fee customarily charged in the locality or by the attorney for similar legal services;

(c) The amount involved and the results obtained;

(d) The time limitations imposed by the client or by the circumstances; and

(e) The experience, reputation, and ability of the lawyer or lawyers performing the services;

(D) (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;

(ii) 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;

(iii) 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

(iv) 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;

(5) 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

(6) 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.

50-6-208. Subsequent permanent injury after sustaining previous permanent injury — Second injury fund — Disbursement — Pilot project for legal defense of administrator — Settlement authority

(a) (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 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.

(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.

(c) 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.

(d) There is appropriated a sum sufficient to the second injury fund for payment of benefits provided in this section, pursuant to the provisions of 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.

(e) 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.

(f) 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.

(g) (1) Before any proposed settlement is considered final in cases involving benefits from the second injury fund under this section, it shall either:

(A) Have the written approval of the commissioner or the commissioner's designee, in accordance with the provisions of subdivision (g)(2); or

(B) 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.

(h) 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.

(i) “Party” or “parties,” as referenced in § 50-6-204(d)(5), shall include the second injury fund.

50-6-209. Maximum compensation.

(a) 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.

(b) (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.