How are We Doing? And Rules, Forms Changes in the Works

By Chief Judge Kenneth M. Switzer

If you are like me, you receive a few calls at home at night asking to take “just five minutes” of your time to respond to a survey. (Usually when they discover that I am 64, the survey ends abruptly. Seems my demographic no longer has value. This is likely true, since I do not even know what the product is in most commercials, assuming I can understand what they are saying, but let’s not go there.)

Last fall, the Court Clerk sent out a survey to all the lawyers and parties on our e-mail list who had participated in an evidentiary hearing. The survey contained only nine questions with multiple choice answers, while the tenth question invited comments. We will send the same survey to lawyers and self-represented litigants on April 11, 2016. We really appreciated the previous responses to this survey, and look forward to more input very soon. It provides us important feedback on the level of service we provide to you, our “customers.”

In addition, on May 2, 2016, we will send, for the first time, a specific survey regarding the judges. Each of the 12 judges of the Court of Workers’ Compensation Claims will be individually listed for respondents to grade their performance on a five-point scale from poor to excellent within nine categories: 

1) the judge’s understanding of the case, 
2) quality of written decisions, 
3) preparation, 
4) demeanor toward counsel and parties, 
5) patience, 
6) promptness in issuing orders, 
7) impartiality as to lawyers, 
8) impartiality as to parties, and 
9) punctuality in conducting their hearings. 

Of course, we ask that persons with no experience with the judge refrain from rating him or her, and trust that these will be filled out objectively, without consideration of the outcome of the case. How we serve and treat the people appearing before us is an important part of our mission in providing a forum to resolve issues by applying the law to the facts when the parties are unable to reach agreement otherwise.

Updated forms
As most parties and practitioners know, the Bureau of Workers’ Compensation issues many forms. Two of the most important for court purposes are the Petition for Benefit Determination (PBD) and the Dispute Certification Notice (DCN). By necessity, the authors of those forms wrote them in a vacuum, as I like to say, and had not put them to the test of real-life application. The PBD underwent a reiteration just recently, and is about to be further refined. A revised DCN just passed administrative muster and has now been posted on the Court’s website.

The major difference you will note on the DCN is that the second page containing a lengthy list of issues has been eliminated. After talking with practicing attorneys, mediators and judges, we reached the conclusion that this particular section was too cumbersome. A simplified issue section now appears on the first page, which limits the disputed issues to broad categories that frequently occur. An “other” tab allows for the unusual situation. We anticipate this new DCN will simplify matters for mediators and practitioners alike and avoid the fear of having to check every box on the old page two, to avoid accidentally waiving an issue. (In the Court’s first 20 months, we did receive a few DCNs with every box checked.)

Rule revisions in the works… slowly
Tennessee Code Annotated section 50-6-233 (2015) gave the Administrator the authority to promulgate rules consistent with the purposes of the authorizing act. With regard to the Court of Workers’ Compensation Claims, those rules were set out in the Tennessee Compilation Rules and Regulations 0800-02-21, et seq. Since the law took effect on July 1, 2014, the Court has operated under those rules. Again, like the forms, these were drafted in a vacuum and needed to be tested through implementation.

Over the past two years, the rules have been tested, both at the trial and appellate court levels. The Tennessee Workers’ Compensation Appeals Board has issued several decisions dealing with specific application of some of those rules. (See, e.g., McCord v. Advantage Human Resourcing, Hadzic v. Averitt Express and Dorsey v. A careful reading of the rules as a whole points out some inconsistencies, typographical errors and some outright illogical rules.

During this time, the Court, along with staff from Mediation and Ombudsman Services of Tennessee, made notes and discussed changes to those rules. Further, all 12 judges of the Court met in January of this year and meticulously went over each word in the rules, searching for a better way. The Court additionally held open-invitation meetings with the bar in Knoxville and Nashville to get feedback on the rules. In a few weeks, the Bureau will submit amendments to the present rules. Although we tried to make them perfect, that is an impossible task. We have, however, made them more consistent, user-friendly and understandable.

The rule-making process is long:  These rules will become effective in about nine or ten months. The first step is to file them with the secretary of state. After a 60-day waiting period, the Bureau will hold a public hearing allowing comment on the proposed rule changes. The Bureau will then have 30 days to respond to the comments. Then the Attorney General’s Office scrutinizes them. Finally, they must go before the joint Government Operations Rule Review Committee of the Tennessee Legislature. After that, they will become effective.

Please watch for the publication of the proposed changes and be ready to attend the public hearing to comment. Our goal is to have these rules for years to come, with only minor changes being dictated by any change in the law. The pace of change here is purposeful. 

Final thoughts
So keep your eyes open for the two very important surveys, the revised forms and new proposed rules. As always, you can direct any questions or concerns about Court processes, rules and the judges to me through my legal assistant, Jane Salem.

Judge E.R. Mills of Florida wrote the following:  

Workers’ compensation is a very important field of law, if not the most important. It touches more lives than any other field of the law. It involves payments of huge sums of money. The welfare of human beings, the success of business, and the pocketbooks of consumers are affected daily by it. 

Singletary v. Mangham Const. Co., 418 So.2d 1138 (Fla. Dist. Ct. App. 1982). We judges of the Court of Workers’ Compensation Claims realize the significance of the cases coming before us. We thank you for participating with us in this noble calling.

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