Improving the REWARD Program Under the Tennessee Workers' Compensation Act
Turning Victims into Victors-Enhancing Workplace Dignity
Work is a vital part of the lives of most Tennesseans. Work provides not only a livelihood, but it also provides a measure of dignity and self-worth. Tennesseans believe they should be hired, promoted, or terminated on the basis of merit and ability, not disability.
In Tennessee, employees without contracts can be fired at that employer's discretion under the "At Will Employment Doctrine.'' Under this doctrine, an employee working without a contract has no protection against termination and can be fired for any or no reason. While a cause of action for retaliatory discharge for a work injury is an exception to the employment-at-will rule, few employees want to be terminated. Returning an injured worker to his or her job after receiving timely and appropriate health care, accommodating an employee's return to work, and reducing his or her disability should be the ultimate goals of returning employees to the workplace.
To improve the REWARD (Return Employees to Work and Reduce Disabilities) Program under the Tennessee Workers' Compensation Act, we should consider implementing the following strategies:
- Expanded coverage: Broaden the program's scope to include more types of injuries and conditions, both temporary and permanent, ensuring that a wider range of injured workers can benefit from rehabilitation services.
- Timely intervention: Implement an early intervention practice to start rehabilitation services as soon as possible after an injury occurs promoting both faster recovery and return to work.
- Enhanced communication: Strengthen communication between injured workers, employers, health care providers, and rehabilitation specialists to ensure a coordinated rehabilitation process.
- Individualized plans: Tailor rehabilitation plans to each worker’s unique needs, taking into account their specific injuries, capabilities, and vocational goals.
- Increase vocational training: Offer vocational training and skill development programs to enhance injured workers' employability, allowing them to transition to alternative roles if necessary.
- Employer incentives: Provide employers with incentives to actively support and participate in the REWARD program, such as reduced insurance premiums or tax benefits for rehiring rehabilitated workers.
- Outcome measurement: Establish clear performance measurements to assess the program’s effectiveness, such as determining the percentage of successfully rehabilitated workers who returned to work.
- Technology Integration: Utilize technology to streamline the rehabilitation process, track progress, and enhance communication among stakeholders.
- Education and Awareness: Conduct training sessions and awareness campaigns to educate workers, employers, and healthcare providers about the benefits and importance of the REWARD program.
I believe that the above recommendations would assist in improving the REWARD program. However, there are a number of concerns that we have experienced while working in the field with numerous cases during our representation of injured workers, for which the REWARD program should recognize a right to workplace dignity. Those factors include the following. Neither employers nor insurance carriers should be free to force injured workers to work for completely unrelated entities performing unrelated work under different circumstances than the employees contemplated at the time they were hired. It is unjust for an injured worker to forfeit his or her workers' compensation disability because they refused to enter into a mandated agreement that would amount to "involuntary servitude."
The inherently coercive nature of mandating that injured workers return to work for an unrelated business or organization, performing work not in furtherance of the original employer's business, or even in the same industry, is bothersome. When an employee refuses to work for an entity that is foreign to both the employer as well as the employee, it is vexatious for an employee to forfeit his or her disability benefits. This practice should be avoided.
The tangible, lasting effects on injured workers who unexpectedly find themselves having to choose between performing work for a new and distinct entity with its own rules, requirements, and expectations and then having to make a choice to receive his or her disability benefits is a choice that injured workers should not have to make.
The funding for rehabilitation should come from funds that previously established the Subsequent Injury and Vocational Recovery Fund. Those funds should be earmarked for rehabilitation and retraining alone. Vocational counselors should be employed by the Bureau of Workers' Compensation at each office throughout the grand divisions of the State of Tennessee. Subsequent Injury and Vocational Recovery Funds should be utilized to employ vocational counselors to develop a rehabilitation program in conjunction with the state's adult education, vocational skills, community colleges, or institutions of higher learning.
Rehabilitation and retraining programs should be conducted through the Court of Workers' Compensation. To achieve true rehabilitation and training, a new pilot program should place vocational training and assistance in the hands of vocational experts rather than nurse case managers. While a nurse case manager has the responsibility of coordinating medical care, nurse case managers should not be allowed to recommend restrictions nor engage in the determination of impairment whether temporary or permanent. Nor should a nurse case manager be able to suggest or coerce a treating physician into placing a claimant at maximum medical improvement when impairments and restrictions, whether temporary or permanent, have not been addressed.
The beginning of restoration and rehabilitation programs should start from the time of the injury.
The funding for rehabilitation should come from the Subsequent Injury and Vocational Recovery Fund. These funds have already been previously earmarked for injured workers. The vocational training and assistance necessary for rehabilitation should be placed in the hands of vocational experts rather than nurse case managers. The monitoring of the rehabilitation and retraining program should be conducted through the Court of Workers' Compensation. A greater sum of funds should be reallocated from the Workers' Compensation insurance surcharge premiums and should be utilized without the necessity of any new taxes. These recommendations would be a step in the right direction to achieving workplace dignity.
By incorporating the above-described strategies, the REWARD program in Tennessee can become more effective. The goal of the REWARD program should be to help injured workers rehabilitate and successfully return to work, ultimately benefitting both the workers and employers in the State, while turning victims into victors and thus enhancing workplace dignity.
David Dunaway, Esq.
David Dunaway is an attorney at Rick A. Owens Law Office in Maryville, Tennessee with nearly 50 years of experience helping injured employees receive Workers' Compensation benefits in Tennessee. Nominator Joseph H. Van Hook writes, "This individual has more compassion for employees than any claimant's attorney that I have worked with."
In 1975, he established and practiced law generally in a multi-attorney law office which has now represented over 16,000 blue-collar and white-collar injured workers in state and federal courts.
Mr. Dunaway exercises extraordinary creativity in his litigation. Not only does he review and litigate under existing law, but he is also not afraid to litigate issues that will modify, change, repeal, or even extend existing law. He has been involved in multiple constitutional challenges using this innovative legal analysis.
Mr. Dunaway has a reputation for always working with the injured worker in mind: striving to protect the rights of the Tennessee worker.
DISCLAIMER
Views expressed in the REWARD Report are solely those of the authors and may not reflect the official policy or position of the Tennessee Bureau of Workers’ Compensation, the Tennessee Court of Workers’ Compensation Claims, the Tennessee Workers’ Compensation Appeals Board, or any other public, private, or nonprofit organization. Information contained in the REWARD Report is for educational purposes only.
R.E.W.A.R.D. PROGRAM: RETURN EMPLOYEES TO WORK AND REDUCE DISABILITIES
The Tennessee Bureau of Workers’ Compensation is recognizing employers with great return-to-work programs. Is that you? Apply before Nov 15, 2023, for consideration on the 2024 REWARD Honor Roll.