Lessons Learned, Part Two

By Judge Kenneth M. Switzer

Welcome back to our discussion regarding the emerging themes from our recent listening sessions.

As a reminder, Brian Holmes, Director of Mediation and Ombudsmen Services of Tennessee (MOST), and I visited each Bureau office in November and December to meet with practitioners and hear how the post-July 1, 2014 system is working. We sincerely appreciate your honesty and constructive feedback.

In my last post, I promised to address three topics attendees frequently raised:  1) confusion as to application of the rules; 2) show-cause hearings, scheduling and status conferences; and 3) creating a document to toll the statute of limitations.

Rules confusion

Many of you expressed concern over the application of the various rules that apply to the Court of Workers’ Compensation Claims. One individual even said it’s more difficult to handle a case in our Court than in federal court. Based on my (OK, I’ll admit it, lengthy) pre-bench experience there, I’m respectfully going to disagree. Regardless, let’s consider the rules that apply to workers’ comp and their interaction.

For starters, the statute adopts the rules of evidence and the rules of civil procedure. You should be familiar with those rules, since they applied to every work comp case heard in circuit or chancery court under the old law. (Also, as a reminder, circuit and chancery courts tend to have their own “local” rules distinct to them — we’re not the only one.) Significantly, the statute reserved an “out” for our Court by saying that those rules apply unless the administrator adopts an alternative procedure or evidentiary rule.

This leads to another source of rules: the Mediation and Hearing Procedures contained within Tennessee Compilation Rules and regulations. We inherited these; the Bureau had them in place before the Reform Act of 2013. We tailored them to comport with the new law, and they contain at least two prominent “alternative” procedures. The most obvious alternative evidentiary rule guides the admissibility of medical evidence at an expedited hearing:  Medical records are admitted based on electronic or handwritten signatures by the physician or if they bear a signed certification. Another alternative rule is that properly executed and sworn affidavits of witnesses are admitted into evidence at expedited hearings.

Another set of rules is the Court’s Practices and Procedures. These cover mainly in-court processes and behavior. They mirror the Mediation and Hearing Procedures where necessary. Notably, these rules provide that motions for summary judgment require special submissions when a self-represented litigant is involved.

Admittedly, multiple sets of governing rules present a learning curve if you’re new to our Court. But, I respectfully submit, it’s do-able. A sizeable number of lawyers who frequently practice in our Court appear very well-versed in the rules.

But if it helps, for your convenience, we’d like to print one bound volume of the statute (without annotations), the Mediation and Hearing Procedures and the Practices and Procedures. We might have something of that nature by the time of the Bureau’s educational conference this summer. On that note, attendance at the educational conference is an excellent way to learn the rules.

Show-cause hearings/scheduling and status conferences

Since show-cause hearings seemed to bring the most comments, let’s talk about them briefly. Show-cause hearings are envisioned to make sure a case is progressing after the issuance of the dispute certification notice. They occur as soon as possible on the Court’s calendar after 60 days pass from the issuance of the DCN.

One major concern is that those hearings do not occur quickly enough after the sixty-day period. We acknowledge that this has been the case in the past. We have installed new monitoring procedures that should make these hearings take place sooner after the 60 days’ expiration. And, if your case seems to be in that posture, feel free to call the Clerk, the local staff attorney or legal assistant to inquire. Also, for defense counsel who mentioned pressure from your adjusters about moving cases along, remember, either party can file a request for a hearing after the DCN issues and before the sixty days pass.

Moving on, the Court uses scheduling orders and status conferences to keep cases on track toward trial or settlement. The Court will enter partial scheduling orders to get the discovery process moving forward while the parties await maximum medical improvement. We realize that some cases are hostage to the medical treatment and doctor’s opinions and require repeated status conferences. Feel free to request longer periods of time between status conferences when it’s clear that medical treatment will be for an extended period of time.

Tolling the statute

I saved the most momentous topic for last. I have not attended a public function concerning the Reform Act in the past two and one-half years where someone has not asked about being able to file a petition for benefit determination simply to satisfy the statute of limitations and allow the case to be held in abeyance until the parties decide to move forward.

This practice arose under prior statutory law that specifically allowed the filing of a benefit review conference request form to do just that. In high-volume practices, this was an effective way to preserve claims. File it … and forget it. But, on the receiving end, as many of you have heard me say, that practice resulted in a file cabinet in Nashville with 4,000 cases with no action taken to our knowledge. Administratively, it’s just not feasible for someone to oversee thousands of dormant cases. Nor it is compatible with the spirit of the Reform Act.

A file cabinet filled beyond capacity ... total disorder

Not the actual cabinet at the Bureau, but you get the idea.

Under the new system, when the PBD gets filed, that signals that there is a dispute regarding that claim, and the matter proceeds immediately to MOST and mediation. One of the major concerns under prior law was those cases that were  filed and never moved forward.

In sum, we hear what you are saying — but lawmakers charged us with fashioning a system that streamlines cases. If an injured worker has an accepted claim and benefits are being provided, the court system should not be burdened by filings that sit without action. We urge you to read section 50-6-203 closely.

A final note

Again, let me convey a hearty thank-you. Your input during this tour caused us to re-evaluate and re-emphasize best practices for mediations and court processes. This has been a valuable process. As always, feel free to contact me with questions or suggestions for the Court.

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