By Chief Judge Kenneth Switzer, Nashville
Our recent “Coffee with the Court” series raised several questions about the dispute certification notice, a/k/a the “DCN,” and its contents. As we all know, the DCN identifies the issues that will be before the Court. The DCN content is based on the parties’ discussions in mediation and should reflect where the parties agree and disagree.
Some lawyers noted that the DCN doesn’t always reflect their understanding of the mediation conclusions. And, in some cases, they said the DCN was issued without input from the parties or their attorneys.
A DCN shouldn’t be issued until a joint meeting or joint telephone call has occurred between the mediator and the parties to review what will be marked on the DCN. By “joint,” we mean all should be present in person or on the same telephone line when this occurs. If this happens, the DCN shouldn’t present any problems when the case reaches the Court. We recognize that sometimes issues arise later or don’t find their way to the DCN. When this happens, the issue then becomes amending the DCN so the judge may rule on an issue.
Amending the DCN is a statutory procedure. Tennessee Code Annotated § 50-6-239(b)(2)(A) and (B) allow the workers’ compensation judge to “grant permission” to present issues not certified by the mediator. This is done only upon a finding that the parties had no knowledge of the issue before the DCN was issued and not allowing presentation of the issue would result in a substantial injustice to the party asking for the amendment. This has proven to be a difficult hurdle to overcome. For that reason, cases are delayed in getting to the Court because they must be referred back for a new mediation of the issue and a new DCN. Not only does this take time, but also it creates additional paperwork–an order, letters to and from the mediator and the parties, another DCN, another filing with the Court, another request for expedited hearing, with attendant notices, and on and on.
The simple solution seems to be to amend the statute to allow the parties to agree, with the Court’s approval, to add an issue as an alternative to (A) and (B) above. This would require legislative action. We promise to make an effort to secure an amendment, but remember that legislative action takes time. This minor amendment might have to wait. Stay tuned.
Next: Motion Practice Pointers.