Tennessee Code 29-34-304 – Prima facie showing of impairment or disease required – Compliance with standards in determining impairment – Exhumation not authorized
(a) No person shall bring or maintain a civil action alleging a silica or mixed dust disease claim based on a nonmalignant condition in the absence of a prima facie showing that, in the opinion of a competent medical authority, the exposed person has a physical impairment, and that the person’s exposure to silica or mixed dust is a substantial contributing factor to the physical impairment. The prima facie showing shall include:
Terms Used In Tennessee Code 29-34-304
AMA guides to the evaluation of permanent impairment: means the most recent version of the American Medical Association's "Guidelines for Assessment of Permanent Medical Impairment" at the time of the performance of any examination or test required under this part. See Tennessee Code 29-34-303
Civil action: means all suits or claims of a civil nature in a court of record, whether cognizable as cases at law or in equity or admiralty. See Tennessee Code 29-34-303
Competent medical authority: means a medical doctor who meets the following requirements: (i) The medical doctor is board-certified in occupational medicine, a board-certified oncologist, a board-certified pathologist, or a board-certified pulmonary specialist. See Tennessee Code 29-34-303
Contract: A legal written agreement that becomes binding when signed.
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Exposed person: means a person whose exposure to silica or mixed dust is the basis for a silicosis claim or mixed dust disease claim under this part. See Tennessee Code 29-34-303
Lung cancer: means a malignant tumor in which the primary site of origin of the cancer is inside the lungs. See Tennessee Code 29-34-303
Mixed dust: means a mixture of dusts composed of silica and one (1) or more other fibrogenic dusts capable of inducing pulmonary fibrosis if inhaled in sufficient quantity. See Tennessee Code 29-34-303
Mixed dust disease claim: includes a claim made by or on behalf of any person who has been exposed to mixed dust, or any representative, spouse, parent, child, or other relative of that person, for injury, including mental or emotional injury, death, or loss to the person, risk of disease or other injury, costs of medical monitoring or surveillance, or any other effects on the person's health that are caused by the person's exposure to mixed dust. See Tennessee Code 29-34-303
Nonmalignant condition: means a condition, other than a diagnosed cancer, that is caused or may be caused by either silica or mixed dust, whichever is applicable. See Tennessee Code 29-34-303
Pathological evidence of silicosis: means a statement by a board-certified pathologist that more than one (1) representative section of lung tissue uninvolved with any other disease process demonstrates a pattern of round silica nodules and birefringent crystals or other demonstration of crystal structures consistent with silica, consisting of well-organized concentric whorls of collagen surrounded by inflammatory cells, in the lung parenchyma and that there is no other more likely explanation for the presence of the fibrosis. See Tennessee Code 29-34-303
Person: includes a corporation, firm, company or association. See Tennessee Code 1-3-105
Silica: means a respirable crystalline form of the naturally occurring mineral form of silicon dioxide, including, but not limited to, quartz, cristobalite, and tridymite. See Tennessee Code 29-34-303
Silicosis: means a lung disease caused by the pulmonary response to inhaled silica. See Tennessee Code 29-34-303
Substantial contributing factor: means both of the following: (i) Exposure to silica or mixed dust is the predominate cause of the physical impairment alleged in the silica claim or mixed dust disease claim, whichever is applicable. See Tennessee Code 29-34-303
Substantial occupational exposure to silica: means employment for a cumulative period of at least five (5) years in an industry and an occupation in which, for a substantial portion of a normal work year for that occupation, the exposed person did any of the following: (A) Handled silica. See Tennessee Code 29-34-303
(1)Evidence that a competent medical authority has taken from the exposed person a detailed medical history, which includes, to the extent necessary to render the opinion referred to in this subsection (a), the occupational and exposure history of the exposed person. If the exposed person is deceased, the occupational and exposure history of the exposed person shall be taken from the person or persons who are most knowledgeable about these areas of the exposed person’s life;(2) Evidence verifying that there has been a sufficient latency period in the context of the chronic, accelerated, or acute forms of the silicosis or mixed dust disease;(3) A diagnosis by a competent medical authority, based on the detailed medical history, a medical examination, and pulmonary function testing, that both of the following apply to the exposed person:
(A) The exposed person has a permanent respiratory impairment rating of at least Class 2, as defined by and evaluated pursuant to the AMA guides to the evaluation of permanent impairment; and(B) The exposed person has silicosis or mixed dust disease based at a minimum on radiological or pathological evidence of silicosis or radiological or pathological evidence of mixed dust disease; and(4) Verification that the competent medical authority has concluded that exposure to silica or mixed dust was a substantial contributing factor to the exposed person’s impairment. A diagnosis that states that the medical findings and impairment are consistent with or compatible with silica or mixed dust exposure does not meet the requirements of this subdivision (a)(4).(b) No person shall bring or maintain a civil action alleging that silica or mixed dust caused that person to contractlung cancer in the absence of a prima facie showing that, in the opinion of a competent medical authority, the person has a primary lung cancer, and that the person’s exposure to silica or mixed dust is a substantial contributing factor to the lung cancer. The prima facie showing shall include:
(1) Evidence that a competent medical authority has taken from the exposed person a detailed medical history, which includes, to the extent necessary to render the opinion referred to in this subsection (b), the occupational and exposure history of the exposed person. If the exposed person is deceased, the occupational and exposure history of the exposed person shall be taken from the person or persons who are most knowledgeable about these areas of the exposed person’s life;(2) Evidence sufficient to demonstrate that at least ten (10) years have elapsed from the date of the exposed person’s first exposure to silica or mixed dust until the date of diagnosis of the exposed person’s primary lung cancer;(3) Radiological or pathological evidence of silicosis or of mixed dust disease;(4) Evidence of the exposed person’s substantial occupational exposure to silica or mixed dust; and(5) Verification that the competent medical authority has concluded that exposure to silica or mixed dust was a substantial contributing factor to the exposed person’s lung cancer. A diagnosis that states that the cancer is consistent with or compatible with silica or mixed dust exposure does not meet the requirements of this subdivision (b)(5).(c) No person shall bring or maintain a civil action alleging a silica or mixed dust disease claim based on the wrongful death of an exposed person in the absence of a prima facie showing that, in the opinion of a competent medical authority, the death of the exposed person was the result of a physical impairment, and that the person’s exposure to silica or mixed dust was a substantial contributing factor to the physical impairment causing the person’s death. The prima facie showing shall include:
(1) Evidence that a competent medical authority has taken from the exposed person a detailed medical history, which includes, to the extent necessary to render the opinion referred to in this subsection (c), the occupational and exposure history of the exposed person. If the exposed person is deceased, the occupational and exposure history of the exposed person shall be taken from the person or persons who are most knowledgeable about these areas of the exposed person’s life;(2) Evidence sufficient to demonstrate that at least ten (10) years have elapsed from the date of the exposed person’s first exposure to silica or mixed dust until the date of diagnosis of the exposed person’s primary lung cancer or, if the death is not alleged to be cancer-related, evidence verifying that there has been a sufficient latency period in the context of the chronic, accelerated, or acute forms of the silicosis or mixed dust disease;(3) Radiological or pathological evidence of silicosis or radiological or pathological evidence of mixed dust disease;(4) Evidence of the exposed person’s substantial occupational exposure to silica or mixed dust; and(5) Verification that the competent medical authority has concluded that exposure to silica or mixed dust was a substantial contributing factor to the exposed person’s death. A diagnosis that states that the medical findings, impairment, or lung cancer are consistent with or compatible with silica or mixed dust exposure does not meet the requirements of this subdivision (c)(5).(d) Evidence relating to any physical impairment under this part, including pulmonary function testing and diffusing studies, shall comply with the technical recommendations for examinations, testing procedures, quality assurance, quality control, and equipment incorporated in the AMA guides to the evaluation of permanent impairment and the official statements of the American Thoracic Society regarding lung function testing, including general considerations for lung function testing, standardization of spirometry, standardization of the measurement of lung volumes, standardization of the single-breath determination of carbon monoxide uptake in the lung, and interpretative strategies for lung testing in effect at the time of the performance of any examination or test on the exposed person required under this part.(e) Nothing in this part shall be interpreted as authorizing the exhumation of bodies.
