By Chief Judge Kenneth M. Switzer
We took the show on the road.
Beginning in Murfreesboro on November 15 and ending in Knoxville on December 14, Brian Holmes, Director of Mediation and Ombudsmen Services of Tennessee (MOST), and I traveled the state conducting “listening sessions” on the mediation and court system. We visited each of the eight offices of the Bureau of Workers’ Compensation.
The sessions were well-attended in some locations, and, frankly, sparsely attended in others. Nonetheless, as the process unfolded, certain themes appeared over and over again. Our promise to you was to identify those themes and let you know how we will respond or clarify measures we have taken to address your concerns. Hence, this blog post.
But before I dive in, I want to thank all of you who took time from your work schedules to spend an hour or so with us at these locations to discuss the process. The reform of 2013 brought with it many challenges in adjusting the system to new processes and procedures, not to mention getting a grasp on the new law concepts. Some of what we thought would work on paper has not worked in the application. We’ve made adjustments and continue to seek to make a more efficient process. And — from my perspective at least — I now see a more rhythmic flow to what we do. Yet, areas of confusion and concern remain.
As we made our way around the state, the five most common recurring themes seemed to be, in no particular order:
1) Conduct of the initial mediation and issuance of the dispute certification notice (DCN);
2) Settlement approval consistency on the issue of closed medicals and the need for prior submission of paperwork;
3) Confusion as to application of the rules;
4) Scheduling orders and status conferences; and,
5) Creating a document to toll the statute of limitations.
This blog entry will tackle the first two topics; a subsequent post will address the remaining items.
Initial mediation and the Dispute Certification Notice
As you know, the initial mediation occurs after the filing of the Petition for Benefit Determination. These initial mediations are assigned to mediators statewide rather than to those in the local office closest to the employee to balance internal workloads. So, the vast majority of these mediations are conducted by phone rather than in-person.
The listening sessions revealed an understanding of the need to convene these mediations telephonically. However, a recurring theme concerned the value to mediations that do not include all parties on the same call at least once during the process. Many felt that including all parties in a conference call would increase the possibility of resolving the immediate dispute.
Brian Holmes has long encouraged the mediators to conduct joint phone sessions in these initial mediations. Based on these sessions, MOST will redouble their efforts to ensure at least one joint phone session for initial mediations.
This brings us to the issuance of DCNs upon unsuccessful mediations.
The listening sessions revealed substantial concern about the issuance of a DCN without sufficient input from the parties as to its content. The primary area of concern was issuance of the initial DCN without prior consultation with the lawyers.
Since the DCN is such a crucial part of the process, we acknowledge that active input from the parties as to its content BEFORE it is issued initially is ideal. Although the rules allow a party five days to supplement or object to a DCN that has been prepared, the consensus is that a better use of time would be for the mediators to consult with the lawyers and litigants regarding its content before issuing it to all parties.
So, MOST, through Mr. Holmes’ direction, will require the mediator to conduct a joint phone session with the parties to discuss the content of the DCN and the proposed attached documents before its issuance.
Turning first to when the parties wish to close medicals, we understand that it can be frustrating to put in substantial time and effort to negotiate a settlement and then to reduce it to terms that all are comfortable with — only to have the judge reject it.
Nonetheless, remember that every case is unique and that we as judges must follow the statutory duties contained within section 50-6-240 (in doubtful and disputed cases, “in the best interest of the employee,” and in general that the employee is “receiving, substantially the benefits provided by this chapter”). We have posted an article previously offering detailed examples of what evidence might support closure of medical benefits and what won’t. Please re-read it here if you haven’t already.
We can’t give guarantees or absolutes in this area. But if you look at the examples contained in the past article, and if you anticipate any concerns a proposed settlement might raise, you’ll substantially increase the chances of its approval.
Now for the concerns regarding the actual settlement process. Some judges like to read the documents in advance. They say it makes the actual approval go faster, or if counsel and the parties are traveling great distances, they can identify potential problems before someone drives 100 miles only to have their settlement rejected. Other judges find this is not an efficient use of their time, given the volume of settlements they must review. That’s us in Nashville and Memphis, for example. The number of support staff varies greatly among our offices and affects which procedures are likely to be the most effective.
We understand it can be difficult for your staff to remember the rules for each office; they are available on our website here. Nonetheless, we’ve decided to stick with the status quo for now. Caseloads ebb and flow; the number of support staff in offices changes, too. Ultimately we would like to utilize a uniform process statewide, but we’re simply not there yet. Be on the lookout for part two regarding the listening sessions, and thanks again for your participation.