New Mediation and Hearing Procedures Take Effect TODAY

New Faces on the Tennessee Workers' Comp BenchBy Judge Robert V. Durham, Cookeville

Anything new is rarely perfect on the first try. Just ask Thomas Edison, who had to experiment with thousands of different materials and shapes before discovering the best filament to create a commercially viable light bulb.

While none of us in the Court of Workers’ Compensation pretends to be Edison, we have discovered through trial and error (pun intended) that there were several areas where we could tweak our Rules to better serve the Court and its participants. After several months for the rule-making process to run its course, the new procedures approved and take effect today.

One significant change is the time Employers have to provide documentation in response to Requests for Expedited Hearings. Requiring documentation within five days of the REH to support its opposition frequently threw employers into a panic, particularly if counsel had not been involved to that point. The Court appreciated the difficulty, and therefore, the revised rules changing the deadline to ten business days prior to the Expedited Hearing. Furthermore, the parties must file all medical records at least ten days prior to the hearing or the Court will not consider them, absent good cause shown.

In addition, confusion regarding document filing often led to the Court receiving copies of documents already filed with the mediator. Therefore, a new rule makes it clear that once the parties have filed the documents with the mediator, they do not have to file them again with the Court in anticipation of an Expedited Hearing. It might be wise to check with the Clerk beforehand to confirm which documents were filed along with the dispute certification notice.

The revised rules also place additional obligations on a party opposing an REH. Ten days before the hearing, the opposing party must not only provide documentation in support of its position, it must also provide a written explanation as to why the Court should not provide the requested relief and list all witnesses the party intends to call at the hearing. Failure to do so without good cause will result in the exclusion of evidence.

Likewise, the new rules make it clear that a request to hear issues not certified on a Dispute Certification Notice must comply with T.C.A. § 50-6-239 before the Court will consider it.

Wage statements used to be required three days after the first ADR; however, many parties weren’t sure when the first “ADR” concluded. The new rule sets out that an employer must provide a wage statement within seven days of a mediator’s request or fifteen days of the issuance of a DCN, whichever is sooner.

Another deadline change allows the parties to serve interrogatories any time after a Petition of Benefit Determination is filed so that the parties no longer have to wait until after the Initial Hearing (now known as the Scheduling Hearing) to begin discovery. To further expedite discovery, the Clerk of Court, instead of a judge, will now issue subpoenas.

In order to expedite a procedure that is most often uncontested, the Court will no longer automatically require a hearing on Motions to Withdraw as counsel, provided all other procedural requirements are met. However, the Court will no longer have the discretion to make a ruling on the record on an evidentiary hearing unless at least one of the parties has requested it, which should give the parties more discretion in presenting their cases.

The revised rules set out that an employer may file a Motion for Summary Judgment after a denial of an REH on the grounds of compensability if the decision has either not been appealed or the Board of Appeals has confirmed it. The motion must follow T.R.C.P. 56 procedures and the employer must provide a copy of Rule 56 to the self-represented litigant.

With regard to medical records, the rules now clarify that a physician’s electronic signature, if it signifies review and acceptance, is sufficient to authenticate a record. “Causation letters” signed by physicians are still admissible in Expedited Hearings but will not serve as evidence in Compensation Hearings, although a properly executed C-32 medical form will, of course, still be acceptable.

Finally, a word of caution. This article, as with all the articles on this blog, is for educational purposes only. No judge in the Court of Workers’ Compensation Claims, including me, will consider it as authority. To ensure familiarity, and thus compliance, with the revised rules, it is always best to go straight to the source and check them for yourself.

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By the way, Edison shocked himself a time or two fooling around with electricity because he went straight to the source. If he had just listened to Nikola Tesla, that could have been avoided and electricity would be free, but you’re not interested in that long story, are you?

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