A Primer on Discovery, Part One


By Jane Salem, Staff Attorney


Under the prior Workers’ Compensation Law, discovery at the administrative level was fairly relaxed. Then came significant change with the Reform Act of 2013, which created the administrative court system and mandated application of the Rules of Civil Procedure and Evidence.
Since July 1, 2014, when the amended law took effect, parties and practitioners alike have raised questions about how to engage in discovery under the new system. This post, and a post to follow next week, attempt to answer some of these procedural questions. Disclaimer: The final arbiters – the Tennessee Workers’ Compensation Appeals Board and the Tennessee Supreme Court  ̶  have yet to weigh in on many of these issues.


        Under the 2013 reforms, a party seeks relief by filing a Petition for Benefit Determination with the clerk of the Court of Workers’ Compensation Claims. Tenn. Comp. R. and Regs. 0800-02-21-.10(1) (2015). (Click here to see the Bureau’s Mediation and Hearing Procedures, a/k/a “the 800 rules.” Named as such because they begin with 0800, not because we have 800 rules!) The Bureau then assigns the claim to a mediator for alternative dispute resolution. Tenn. Comp. R. and Regs. 0800-02-21-.10(4) (2015). The law favors resolution by agreement whenever possible. By statutory mandate, “[n]o request for a hearing by a workers’ compensation judge . . . shall be filed with the court of workers’ compensation claims, other than a request for settlement approval, until a workers’ compensation mediator has issued a Dispute Certification Notice certifying issues in dispute for hearing before a workers’ compensation judge.” Tenn. Code Ann. § 50-6-203(a) (2015).
            Neither the Workers’ Compensation Law nor the Bureau’s rules provide authority for a party to conduct formal discovery while the claim is at the mediation stage. In Syph v. Choice Food Group, Inc., a majority of the Appeals Board recently held “the phrase ‘proceedings at all hearings’ as used in section 50-6-239(c)(1) [pertaining to the point in time when the Rules of Civil Procedure become applicable in the Court of Workers’ Compensation Claims] encompasses all filings made by the parties as a result of any request for or notice of a hearing filed after the issuance of a dispute certification notice.” Accordingly, it seems a party cannot conduct discovery under the forms prescribed in Rules 26 to 37 of the Tennessee Rules of Civil Procedure while the claim remains with the mediator before issuance of the Dispute Certification Notice unless, of course, the adverse party so agrees.
         Yet, the parties cannot mediate in a vacuum. The Bureau’s rules mandate that parties share certain information with each other during the mediation stage of the claim. Specifically, parties must provide each other with copies of all medical records in their possession and must forward copies of subsequently received records within 14 days of receipt. Tenn. Comp. R. and Regs. 0800-02-21-.10(2) (2015). The employer must submit an accurate, signed wage statement within three days of the first scheduled mediation proceeding. Tenn. Comp. R. and Regs. 0800-02-21-.10(3) (2015). Further, the mediator may refer non-compliant parties for assessment of a civil penalty pursuant to Tennessee Code Annotated section 50-6-118 (2015).
            Tennessee Code Annotated section 50-6-236(g) (2015) gives the mediator authority to require a party to “produce documents” during the mediation stage of the claim. The mediator may note a party’s failure to produce documents on the Dispute Certification Notice, and either or both the mediator and/or a party can make a motion before a workers’ compensation judge for a ruling as to whether the failure to produce requested documents was in bad faith. If the judge finds the non-compliant party acted in bad faith, the judge may award attorney’s fees and costs.
            Look for a post about discovery once the Dispute Certification Notice is filed next week. Until then, remember that State offices are closed on Monday, July 4. Happy Independence Day, and happy second birthday to the Tennessee Court of Workers’ Compensation Claims!


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