2016 Tennessee Code
Title 29 - Remedies and Special Proceedings
Chapter 34 - Torts
Part 3 - Silica Claims Priorities Act
§ 29-34-303. Part definitions.

As used in this part, unless the context otherwise requires:

(1) "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;

(2) "Board-certified" means the medical doctor is currently certified by one of the medical specialty boards approved by either the American Board of Medical Specialties or the American Osteopathic Board of Osteopathic Specialties;

(3) "Board-certified in occupational medicine" means a medical doctor who is certified in the subspecialty of occupational medicine by the American Board of Preventive Medicine or the American Osteopathic Board of Preventive Medicine;

(4) "Board-certified oncologist" means a medical doctor who is certified in the subspecialty of medical oncology by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine;

(5) "Board-certified pathologist" means a medical doctor who holds primary certification in anatomic pathology or clinical pathology from the American Board of Pathology or the American Osteopathic Board of Internal Medicine;

(6) "Board-certified pulmonary specialist" means a medical doctor who is certified in the subspecialty of pulmonary medicine by the American Board of Internal Medicine or the American Osteopathic Board of Internal Medicine;

(7) "Certified B-reader" means a person who has successfully completed the x-ray interpretation course sponsored by the national institute for occupational safety and health (NIOSH) and passed the B-reader certification examination for x-ray interpretation and whose NIOSH certification is current at the time of any readings required by this part;

(8) (A) "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;

(B) "Civil action" does not include a civil action:

(i) Relating to any claim for workers compensation under title 50;

(ii) Alleging any claim or demand made against a trust established pursuant to 11 U.S.C. § 524(g);

(iii) Alleging any claim or demand made against a trust established pursuant to a plan of reorganization confirmed under the federal bankruptcy code; or

(iv) Arising under the Federal Employers Liability Act pursuant to 45 U.S.C. § 51 et seq.;

(9) (A) "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;

(ii) The medical doctor is actually treating, or has treated, the exposed person and has or had a doctor-patient relationship with the exposed person, or in the case of a board-certified pathologist, has examined tissue samples of pathological slides of the exposed person at the request of a treating medical doctor;

(iii) As the basis for the diagnosis, the medical doctor has not relied, in whole or in part, on the reports or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test, or screening of the exposed person's medical condition:

(a) In violation of any law, regulation, licensing requirement, or medical code of practice of the state in which that examination, test, or screening was conducted, with regard to the diagnosis set forth in the report required pursuant to § 29-34-305;

(b) Outside the context of an existing doctor-patient relationship; or

(c) That required the exposed person to agree to retain the services of a law firm or lawyer sponsoring the examination, test, or screening; and

(iv) The medical doctor spends not more than twenty-five percent (25%) of the doctor's annual practice time in providing consulting or expert services in connection with prosecuting or defending actual or potential tort actions, and the medical doctor's medical group, professional corporation, clinic, or other affiliated group earns not more than twenty-five percent (25%) of its revenues from providing those services;

(B) The requirements for determining "competent medical authority" set forth in subdivisions (9)(A)(ii)-(iv) may be waived by written agreement of all of the parties;

(10) "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;

(11) "ILO scale" means the system for the classification of chest x-rays set forth in the International Labour Office's "Guidelines for the Use of ILO International Classification of Radiographs of Pneumoconioses," 2000 edition, or if amended, the version in effect at the time of the performance of any examination or test on the exposed person required under this part;

(12) "Lung cancer" means a malignant tumor in which the primary site of origin of the cancer is inside the lungs;

(13) "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;

(14) "Mixed dust disease claim" means any claim for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to inhalation of, exposure to, or contact with mixed dust. "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;

(15) "Mixed dust pneumoconiosis" means the lung disease caused by the pulmonary response to inhaled mixed dusts, and does not mean silicosis and another pneumoconiosis, including, but not limited to, asbestosis;

(16) "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;

(17) "Pathological evidence of mixed dust pneumoconiosis" 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 peribronchiolar and parenchymal stellate, star-shaped, nodular scarring and that there is no other more likely explanation for the presence of the fibrosis;

(18) "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;

(19) "Physical impairment" means a condition of an exposed person as defined in § 29-34-304(a)(3), (b)(3), (b)(4), (c)(3) or (c)(4);

(20) "Premises owner" means a person who owns, in whole or in part, leases, rents, maintains, or controls privately owned lands, ways, or waters, or any buildings and structures on those lands, ways, or waters, and all privately owned and state-owned lands, ways, or waters leased to a private person, firm, or organization, including any buildings and structures on those lands, ways, or waters;

(21) "Radiological evidence of mixed dust pneumoconiosis" means an ILO quality chest x-ray read by a certified B-reader as showing bilateral rounded or irregular opacities in the upper lung fields graded at least 1/1 on the ILO scale;

(22) "Radiological evidence of silicosis" means an ILO quality chest x-ray read by a certified B-reader as showing either bilateral small rounded opacities (p, q, or r) occurring primarily in the upper lung fields graded at least 1/1 on the ILO scale or A, B, or C sized opacities representing complicated silicosis, also known as progressive massive fibrosis;

(23) "Silica" means a respirable crystalline form of the naturally occurring mineral form of silicon dioxide, including, but not limited to, quartz, cristobalite, and tridymite;

(24) "Silica claim" means any claim for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to inhalation of, exposure to, or contact with silica. "Silica claim" includes a claim made by or on behalf of any person who has been exposed to silica, 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 silica;

(25) "Silicosis" means a lung disease caused by the pulmonary response to inhaled silica;

(26) (A) "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; and

(ii) A competent medical authority has determined with a reasonable degree of medical certainty that without the silica or mixed dust exposures the physical impairment of the exposed person would not have occurred;

(B) In determining whether exposure to silica or mixed dust was a substantial contributing factor in causing the plaintiff's injury or loss, the trier of fact in the action shall consider, but not be limited to, all of the following:

(i) The manner in which the plaintiff was exposed;

(ii) The proximity of silica or mixed dust to the plaintiff when the exposure occurred;

(iii) The frequency and length of the plaintiff's exposure; and

(iv) Any factors that mitigated or enhanced the plaintiff's exposure to silica or mixed dust;

(27) "Substantial occupational exposure to mixed dust" 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 mixed dust;

(B) Fabricated mixed dust-containing products so that the person was exposed to mixed dust in the fabrication process;

(C) Altered, repaired, or otherwise worked with a mixed dust-containing product in a manner that exposed the person on a regular basis to mixed dust; or

(D) Worked in close proximity to other workers who experienced substantial occupational exposure to silica in a manner that exposed the person on a regular basis to mixed dust;

(28) "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;

(B) Fabricated silica-containing products so that the person was exposed to silica in the fabrication process;

(C) Altered, repaired, or otherwise worked with a silica-containing product in a manner that exposed the person on a regular basis to silica; or

(D) Worked in close proximity to workers who experienced substantial occupational exposure to mixed dust in a manner that exposed the person on a regular basis to silica;

(29) "Veterans' benefit program" means any program for benefits in connection with military service under title 38 of the United States Code; and

(30) "Workers' compensation law" means title 50, chapter 6, and judicial decisions rendered under title 50, chapter 6.