By Judge Joshua D. Baker
Before participating in any court proceeding, litigants must ensure that they have the most recent information concerning the prevailing law.
The General Assembly created the Court of Workers’ Compensation Claims in 2013 through broad reform legislation that significantly altered Tennessee’s workers’ compensation laws and procedures. As with any broad reform legislation, problems generally come to light during implementation requiring further legislation to “iron out the wrinkles.”
The legislation that created the Court of Workers’ Compensation Claims is no exception. Over the few months the Court has been in operation, the judges have recognized several issues requiring legislative attention, including the lack of clear authority to perform simple tasks such as giving oaths and executing on property. So during this past legislative session, the General Assembly passed SB0105, which addressed these issues and several others. Governor Haslam signed it into law on May 4, 2015, and its provisions took effect on that day. The full-text can be accessed here, while the bill’s history is available here.
|“No, Ma’am. We at the Bureau of Workers’ Compensation
do not have a sense of humor we’re aware of.”
One of the most noticeable changes brought about by SB0105 is the alteration of the current name of our broader organization, from the “Division of Workers’ Compensation” to the “Bureau of Workers’ Compensation.” This change does not mean that the judges will be trading in their black robes for black suits, ties and sunglasses. Interestingly though, it is a lack of clear identity that necessitated the name change from the Division to the Bureau to clarify that the Bureau is not a division or subdivision of any executive branch agency.
In everything that the Workers’ Compensation Reform Act of 2013 did to establish our new Court, it failed to address two small, but very important, aspects of effective courtroom proceedings: the ability to administer oaths and to execute judgments. The judges were able to work around the first omission over the short-term by being licensed as notaries public. The second omission, however, required legislative action. Fortunately, SB0105 cured both these deficiencies.
First, the Bill provides clear authority for workers’ compensation judges to “swear in witnesses at hearings and other court of workers’ compensation claims functions.”
Second, the Bill gives workers’ compensation judges the power to ensure payment of judgments by issuing wage garnishment orders and execution orders on real and personal property in the manner provided by Title 26 of the Tennessee Code. In addition to the civil penalty assessment authority of the judges and the Bureau, this new authority will provide much needed enforcement oversight for the Court to ensure effective administration of justice.
SB0105 also addresses the appointment of a guardian ad litem in the unfortunate case where a workplace accident results in the death of the worker and the deceased has minor children. The Bill gives the Court the same authority as a state court to appoint a guardian ad litem to protect the interest of the minor child. The Bill also gives the Court authority to order payment of a reasonable attorney fee to attorney appointed as a guardian ad litem.
With respect to proceedings in the Court of Workers’ Compensation Claims, the Bill made one more important change in the law that affects only those claims with a date of injury after the Governor signs the Bill into law. On their face, the 2013 Reforms did many things to speed resolution of benefit claims. When hearing the cases, and particularly when holding settlement approvals, the judges recognized a disturbing practice in cases where the employer paid permanent benefits to the employee and the employee returned to work. In some of these cases, the employer paid the employee permanent benefits but the parties never approached the Court to enter a formal settlement agreement. This practice left the employee in a vulnerable position because the employee had no formal agreement to fall back on if a need for future medical care arose.
In an effort to terminate this practice, SB0105 extended the statute of limitations to two years beyond the date of the last permanent benefit payment in all cases where the employer paid the employee permanent benefits without a formal settlement agreement. The Bill also included language rendering any unapproved settlement agreement reached between the parties void. The Court hopes that these new laws will provide sufficient deterrent to employers from participating in this unlawful practice.
Finally, SB0105 provided some relief to the judges of the Workers’ Compensation Appeals Board. The Appeals Board has been operating under very strict timelines since its creation that made resolution of appeals within the statutory timeframe very difficult. The Bill provided discretion to the Appeals Board’s judges to extend these timelines in some situations. This authority gives the Appeals Board’s judges needed flexibility to ensure they have adequate time to consider appeals and issue fair rulings. The Bill also provides for the assessment of a filing fee for each appeal filed with Board.
As the Court continues to evolve it is inevitable that other statutory and/or rules changes will occur. We plan to keep you posted of those developments as they take place.