Storms, Jobs, Workers’ Compensation, Civil Justice Headline Capitol Hill Week

(NASHVILLE, TN), April 28, 2011 –  Jobs continued to headline debate on Capitol Hill this week as members of the Senate Commerce, Labor and Agriculture Committee and the Senate Judiciary Committee voted to approve two key bills designed to draw new businesses to Tennessee.  This week’s action, however, was overshadowed by reports of massive storm damage as the Volunteer State was one of several states in the Southeast which were hit by the worst tornado outbreak in recent U.S. history on Wednesday. 

As of Thursday, there were 202 reported fatalities in six states as a result of the storms with the count expected to increase.  State officials have estimated 30 deaths have occurred in Tennessee due to the storms, but the total is expected to climb with three persons reported as missing.

Prayers for those devastated by the tornadoes were lifted in the chamber of the State Senate on Thursday led by Senator Mike Faulk (R-Church Hill).  Senators remembered the families and communities which must now work to rebuild in the aftermath of the storms.  The Senate also remembered those who could be impacted by flooding in West Tennessee.  Flood levels are expected to rise to levels unseen since 1937. 

“The destruction of these storms is unbelievable,” said Senator Steve Southerland (R-Morristown) whose district was hit by a tornado, a rare occurrence in the mountainous East Tennessee terrain.  “Our thoughts and prayers are with the families and loved ones of those that lost their lives in the storms.”

“Our hearts and prayers go out to those who have lost family members due to the storms,” added Senator Mike Bell (R-Riceville) whose district also experienced multiple fatalities due to the storms.  “This has truly been one of the worst disasters to hit our area and we will work with the governor and others to help those who have suffered losses as we rebuild our communities.”

Lawmakers are working with Governor Bill Haslam and Tennessee’s emergency agencies as the state assesses damages, which is the first step taken before federal assistance is requested to recover from storm damage.  A federal disaster declaration would make emergency funds available for the repair and replacement of property damaged by the storms.

Jobs / Workers’ Compensation — On the jobs bills passed this week, the Senate Commerce, Labor and Agriculture Committee has passed legislation which makes changes to the state’s workers’ compensation system.  The measure aims to put Tennessee in a better competitive situation with neighboring states in regards to the costs of doing business.

“Tennessee is consistently a higher-cost state in which to do business regarding workers’ compensation,” said Senate Majority Leader Mark Norris (R-Collierville), sponsor of the bill.  “This legislation builds on the reform measure passed in 2005 by adopting best practices from states with more effective systems to make us more competitive in bringing new jobs to the state and growing existing business in Tennessee.”

Review of worker compensation cost data from four companies that have similar facilities in Tennessee and other states show the cost here was 5, 7 and 11 times higher.  In a state-to-state comparison of like claims in carpal tunnel syndrome, Tennessee is 100 percent higher than its sister states.  The study also shows that state indemnity costs for workers’ compensation rates have risen over the last ten years by 30 percent for permanent partial disability and 45 percent for temporary total disability as compared to a 19.4 percent increase in the consumer price index.      

Factors contributing to the higher cost include Tennessee’s complicated and unpredictable workers’ compensation system.  Currently, the system is open to interpretation which encourages litigation.  It also entails a longer wait time for injured workers to reach a conclusion regarding claims.

Senate Bill 932 would return the state’s workers’ compensation to the system in which it was originally intended by calling for a “no-fault” system.  The purpose is to replace lost wages when injured employees are medically unable to work and pay for health services and physicians charges due to work-related injuries. 

The proposal would reduce lengthy court cases and result in more timely payments to employees.  It removes unnecessary and illogical restrictions from the parties’ ability to resolve and settle future medical benefits. 

Another key element of the bill is to provide a clear definition of injury in workers’ compensation cases, an important point not addressed in the 2005 reform law.  Under the bill, an injury would be “accidental” only if it is caused by a specific incident (or incidents) arising out of and in the course of employment and is “identifiable by time and place of occurrence.”  Diseases would be excluded, except when they arise “naturally and is unavoidable” due to the worker’s employment.  The opinion of a selected physician from the employer’s designated panel would be presumed correct regarding the cause of an injury unless the contrary is proved by a preponderance of the evidence. 

“The bill is a logical next step to the 2005 workers’ compensation reform law so we have a standardized system which is consistent across the state and provides quicker and more predictable results,” concluded Norris.

Civil Justice Act — The second jobs bill, which is part of Governor Bill Haslam’s legislative agenda, is the Civil Justice Act of 2011 which was approved by the Senate Judiciary Committee on Tuesday.  That legislation is also designed to provide certainty and predictability for businesses, while ensuring that injured plaintiffs receive all of the economic, quantifiable damages that they suffer.  The proposal, Senate Bill 1522, is sponsored by Senate Majority Leader Mark Norris (R-Collierville) and Senator Brian Kelsey (R-Germantown). 

“This is another step toward making Tennessee’s civil justice system competitive within the Southeast,” said Senator Norris.  “Tennessee is the only state in the Southeast that has no limits on punitive damages.  We must be aggressive in bringing new jobs to our state in a very competitive environment with our neighboring states, while protecting those who are injured.  This bill accomplishes all of these goals.”

Key provisions of the bill include:
• The bill limits the maximum appeal bond amount from $75 million to $25 million or 125 percent of the judgment amount.
• It defines two components of compensatory damages:  economic and non-economic damages.
o The measure places a cap on non-economic damages, which are subjective damages like pain and suffering, at $750,000 per injured plaintiff for both healthcare liability action and other personal injury actions.  However, if the harm suffered is intentional, the caps would not apply. 
o As amended, the bill raises the cap to $1.0 million if the plaintiff becomes a paraplegic or quadriplegic because of spinal cord injury, sustains third degree burns over 40 percent or more of his or her body or face, has an amputation of a hand or foot, or wrongfully dies leaving one or more minor children.
o There is no cap, under the measure, on economic damages and any damages that can be objectively quantified may be recovered.
• Caps punitive damages, which must be proved by clear and convincing evidence, at two times compensatory damage or $500,000, whichever is greater unless the defendant intended to injure the plaintiff, was under the influence of drugs or alcohol, or intentionally falsified records to avoid liability.
• Prevents punitive damages in products liability actions, unless the seller had substantial control over the design or manufacturing of the product or had actual knowledge of the defect in the product at the time it was sold.

“This bill provides certainty and predictability for businesses, while ensuring that injured plaintiffs receive 100 percent of the economic, quantifiable damages they suffer,” added Senator Kelsey.  “I am very pleased it has been approved.  This was a key committee vote, and I look forward to the next legislative step, which is approval by the full Senate on final consideration.”

If approved by the full House and Senate, the bill would take effect October 1, 2011, and apply to all liability actions for injuries after that date.

Anti-Terrorism bill overcomes major hurdle with Senate Judiciary Committee approval

The Senate Judiciary Committee voted 6 to 3 this week to approve an anti-terrorism bill aimed at curbing the incidence of homegrown terrorist acts in the state before they occur.  The proposal, called the “Material Support to Designated Entities Act of 2011,” is sponsored by Senate Republican Caucus Chairman Bill Ketron (R-Murfreesboro). 

The vote came after the committee approved an amendment which ensures an even-handed and non-discriminatory approach in defining how an entity is designated a terrorist organization.   

“The purpose of the bill is to criminalize the knowing provision of material support to known designated domestic and foreign terrorist entities,” said Senator Ketron.  “The idea is to cut off the support for those who are planning to commit terrorist acts in Tennessee since it is the support that typically makes the acts more likely to occur.  The difference our bill makes is that it works to prevent the attack rather than simply punishing for it afterwards.”

After investigation and recommendation from the Commissioner of Safety and the Director of the Tennessee Department of Homeland Security, the legislation allows the Attorney General and the Governor to jointly “designate” a domestic terrorist entity.  Once designated, the bill forbids that material support or resources be provided to the designated entity.  It creates a Class B felony offense for knowingly providing material support or resources once that designation has been made.

The legislation prescribes procedures to challenge, revoke, or amend a designation.  This includes multiple internal checks and balances to protect against potential abuse.  The proposal is closely modeled after the federal anti-terrorism material support statutes which have been upheld by the U.S. Supreme Court.

“We are building on Tennessee’s 2002 anti-terrorism law that prescribed penalties after a terrorist act is committed,” added Ketron.  “However, this bill will enable state and local law enforcement to act decisively before an act occurs.”

“We have had multiple meetings with all parties, including those who are opposed to the legislation,” he continued.  “The bill, as amended, is a non-discriminatory measure that gets at the problem of material support for homegrown terrorism, without any doubt that it does not impact peaceful religious practices of any religion.”

Legislation to curb meth production passes full Senate
Bill stiffens penalties for making the illegal drug in the presence of a child

The full Senate 31 to 0 to approve major legislation to stiffen penalties for making methamphetamines in the presence of a child and implement a statewide electronic tracking system to curb meth production in the state.  The system, called NPLEx (National Precursor Log Exchange), would monitor and block illegal purchases of over-the-counter cold and allergy medicines containing pseudoephedrine (PSE), a key ingredient in methamphetamine production.

“There is currently no mechanism in place in Tennessee to block illegal PSE sales in real time, as many pharmacies and retailers rely on handwritten, paper logbooks to track purchases,” said Senator Mae Beavers (R-Mt. Juliet).  “As a result, criminals have learned to circumvent the current system.  This bill would prevent the sale of meth precursors to those who manufacture the illegal drug, as well as stiffening penalties against those who expose children to the dangerous effects of cooking methamphetamines.”

Senate Bill 1265 requires that as of January 1, 2012, all pharmacies must use NPLEx, which would export the data to law enforcement.   The NPLEx system will be at no cost to pharmacies or the state.  NPLEx must have a stop sale mechanism in place by that time for potential purchasers over the allowable purchase limit and anyone on the meth offender registry.  The proposal also calls for a pharmacist or pharmacy intern to counsel the potential purchaser of a product containing pseudoephedrine before the transaction takes place and may decline the sale if it is deemed not to be for a legitimate medical purpose. 

The bill also sets amounts of pseudoephedrine that can be purchased.  A buyer cannot purchase more than 3.6 grams of a pseudoephedrine product per day or more than 9 grams per 30-day period unless they have a valid prescription or face a Class A misdemeanor penalty.  Doctor or pharmacy shopping to obtain more than that limit, often referred to as “smurfing,” would become a Class A misdemeanor subject to a fine of $1,000 for the first offense and $2,000 for second and subsequent offenses.  The bill also changes the amount of pseudoephedrine in a person’s possession necessary to establish intent to manufacture meth from 20 grams to 15 grams.  Fines assessed under the proposal will be used for cleanup of meth labs.

The provision stiffening penalties against making meth in the presence of a child would take place on July 1, 2011.  The bill would make the crime aggravated child endangerment which is punishable as a Class A felony if the child is eight years old or younger and a Class B felony if the child is over the age of eight.

In addition, the bill calls for the Comptroller to conduct a thorough study of meth and the availability of pseudoephedrine as a factor in the manufacture of meth, with the results of the study to be released no later than January 1, 2013.

“I appreciate Chairman Beavers’ work and diligence on a very serious issue that affects a number or our counties,” added Senator Randy McNally (R-Oak Ridge), a pharmacist who also worked on the bill.  “Meth is tearing apart a number of counties in our state and putting a tremendous cost on local governments and state government.  This bill goes a long way in addressing those problems, while providing safeguards to the consumers of nasal decongestant products so they will still be available to them and easily accessible.” 

Legislation passed by Tennessee Senate prohibits drug felons who do not seek treatment from receiving welfare benefits

The Tennessee Senate has approved legislation that prohibits an individual convicted of a felony for possession, use, or distribution of a controlled substance from being eligible to receive Families First program benefits.  Senate Bill 96, sponsored by Senator Jim Tracy (R-Shelbyville), would apply to welfare recipients convicted on or after July 1, 2011 and would extend for a period of three years unless the individual receives treatment for substance abuse.

Families First is Tennessee’s welfare reform program, which began in September 1996 under a federal waiver, and which replaced the Aid to Families with Dependent Children (AFDC) program.  Benefits to children would not be affected under provisions of the bill.

“It is not fair for hardworking taxpayers to subsidize welfare payments for those who have been convicted of felony drug charges,” said Senator Tracy.  “This bill gives these individuals notice that our charity is extended as long as they enroll and successfully complete treatment.  The bill, however, puts a stop to endless payments to those who continue to ignore our drug laws and who continue to abuse the system for public assistance.”

In Brief…

Good Faith Exception to the “Exclusionary Rule” – The Senate Judiciary Committee has approved legislation that allows a judge to give a jury access to evidence or facts obtained as a result of a search or seizure which contains a minor technical error.  Many states, as well as the federal courts, have enacted what is known as the “common sense” or “good faith exception” to the exclusionary rule regarding suppression of evidence in violation to the fourth amendment, or unreasonable search and seizure.  The proposal, SB 559 sponsored by Senator Randy McNally (R-Oak Ridge), attempts to balance the scales of justice to a standard embraced by the U.S. Supreme Court in United States v. Leon and Herring v. United States, which was the law in Tennessee prior to 1979.  This standard allows the judge and jury to weigh all the facts and still administer justice in an objective manner. 

Presidential Preference Primary Date — The full Senate gave final approval to Senate Bill 599 to change Tennessee’s presidential preference primary date to the first Tuesday in March.  The measure, sponsored by Senate Majority Leader Mark Norris (R-Collierville), was moved as a result of actions taken by the governing bodies of both national political parties. Failure to move the primary would preclude Tennessee delegates from having full delegate representation at Republican and Democrat national conventions.

Children / Hearing Devices — Legislation requiring private insurance plans to include coverage of hearing aids for children was approved by the Senate Finance Committee on Tuesday.  Senate Bill 607, sponsored by Senator Doug Overbey (R-Maryville), requires that certain health insurance policies provide coverage of up to $1,000 per individual hearing aid per ear, every three years, for every child covered as a dependent by the policy holder.

Commercial Fishing Advisory Committee — Senate Bill 1140 was passed by the full Senate this week which requires the Tennessee Wildlife Resources Agency (TWRA) to take certain steps to make the commercial fishing industry more viable in the state.  The bill sets up a Commercial Fishing Advisory Committee which members would include licensed commercial fishers and roe fishers, dealers, and buyers. The members of the committee would serve as volunteers and would not be paid or reimbursed for time served.  The purpose of the bill, sponsored by Senator Jim Summerville (R-Dickson), is to bring back a vital commercial fishing industry, while making sure it is reasonably regulated and does not interfere with sport fishing.

Road Funds / Sponsorship — Two bills, Senate Bill 31 and Senate Bill 32 sponsored by Senator Jim Tracy (R-Shelbyville), were approved by the full Senate this week to allow companies to advertise on the Tennessee Department of Transportation’s (TDOT) emergency trucks and messaging boards respectively.  Tennessee’s road fund is in dire need of additional funding as the stimulus money for transportation expires and economic conditions continue to present the need for budget cutbacks.  The funds raised by the effort would go to TDOT to build or repair roads.  Under the bill commercial sponsorship cannot include alcohol, tobacco, adult-oriented establishments, political candidates or issue or any unlawful activities. 

Transportation / Coordination — Senate Bill 523, sponsored by Senator Jim Tracy (R-Shelbyville), was passed on final consideration in the State Senate to create an Interagency Transportation Coordination Committee.  The committee will create a five-year strategic transportation coordination plan to guide its work to improve transportation coordination efforts of state and local governments to increase effectiveness and financial efficiency. 

Collective Bargaining / Teachers – The Senate Finance Committee approved legislation sponsored by Senator Jack Johnson (R-Franklin) that would delete provisions of state law put into place in 1978 which set apart the right for teachers’ unions to use collective bargaining to negotiate terms and conditions of professional service with local boards of education.  Senate Bill 113, as amended, sets up a process to ensure that every teacher has a right to make his or her voice heard regarding the terms of employment, not solely those of union members through a union leader.  Under the revised bill local education authorities (LEAs) are required to draw up an employee manual to address matters pertinent to employment and provide teachers with an opportunity to make their voices heard.  The manual includes such matters as salaries, wages, benefits (insurance and retirement benefits), leave, student disciplinary procedures and working conditions.  The professional manual would be binding on the LEA and must be reviewed a minimum of every three years.  Testimony on the bill was heard on the Senate floor on Thursday, but a final vote was deferred until next week.  According to the Tennessee School Boards Association, 92 of 136 LEAs in the state have collective
bargaining agreements.

Nursing Mothers – Legislation which authorizes mothers to publicly breastfeed a child beyond the current 12-month age limit without being prosecuted for public indecency has been signed into law by Governor Bill Haslam.  The proposal, Senate Bill 83 sponsored by Senator Mike Faulk (R-Church Hill), will take effect on July 1.   According to the American Academy of Pediatrics (AAP), breastfeeding protects against a variety of diseases and conditions in the infant such as bacterial meningitis, bacteremia, diarrhea, respiratory tract infections, necrotizing enterocolitis, ear infections, urinary tract infections and late-onset sepsis in preterm infants.  It can also protect the child against developing type one and type two diabetes, lymphoma, leukemia, and Hodgkins disease, as well as childhood obesity.  In addition, breastfeeding provides long-term preventative effects for the mother, including an earlier return to pre-pregnancy weight and a reduced risk of pre-menopausal breast cancer, ovarian cancer and osteoporosis.

Blue Alert — The full Senate adopted a House amendment and sent to the governor legislation that would allow law enforcement to immediately put out information about suspects when a police officer is missing, injured or killed in the line of duty.  Senate Bill 655, sponsored by Senator Jim Tracy (R-Shelbyville) would work similar to the America’s Missing Broadcast Emergency Response (AMBER) system used to get instant information out regarding serious child abduction cases.    The Blue Alert would be used when a suspect has not been apprehended and is considered a serious threat to the public.  The Tennessee Bureau of Investigation (TBI) would use the statewide infrastructure of the AMBER Alert system to facilitate a Blue Alert.

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