Rules Reorganization is Under Way

By Chief Judge Kenneth M. Switzer, Nashville

When the Court began operating in July 2014, we already had a set of “rules” called the Mediation and Hearing Procedures. These rules were prepared before any judges were appointed and any “new law” injuries occurred. They were based on the statute and anticipated how the process would evolve.

The evolution of the court system happened quickly — perhaps more quickly than we expected. It became readily apparent that several items were missing from the original rules, especially if we were to conduct court in a fashion familiar to the practicing bar.

Soon after our appointments, the original eight judges prepared a set of Practices and Procedures. These were largely based on what a practicing attorney would call “local rules of court.” They addressed many matters left out of the original Mediation and Hearing Procedures. We discovered that these Practices and Procedures could be easily changed, since we did not designate them as “rules.” So, over the last few years, we’ve made changes to them as events warranted.

Change was not that easy for the Mediation and Hearing Procedures, however. Under state rule-making guidelines, rules like the Mediation and Hearing Procedures may only be changed by following a lengthy process:

  • A proposed change must be written and submitted to the Secretary of State.
  • Notice of a public hearing is given more than 60 days from the filing.
  • A public hearing occurs to allow comments.
  • Two weeks after the public hearing are allowed for additional written comments,
  • Time is allowed for the attorney general to review the rules and approve them.
  • A hearing is set before the governmental operations committee of the legislature.
  • “Gov Ops” meets and consents to  the changes.
  • Finally, six weeks later, the new rules take effect.

This process usually takes about six to nine months – sometimes much longer.

The first changes to the rules took effect in November 2016. At that time, I promised that we would not change the rules again for at least two years – maybe longer. The whole idea was to provide stability and consistency to the system. We believe we have achieved that goal. However, other circumstances changed.

In the legislative session of 2018, a bill passed that defined our Practices and Procedures as “rules” subject to the approval of the government operations committee. Any changes to our Practices and Procedures could no longer be made without following the approval process outlined above.

Because of this new definition and requirement, and because some of you mentioned it would be helpful to have one set of rules, we have identified this as an opportunity to combine and refine the Mediation and Hearing Procedures with the Practices and Procedures.

These new, combined rules were submitted to the Secretary of State in August. A public hearing is set for October 30, 2018, at 10 a.m. at 220 French Landing, Nashville. The proposed rules may be viewed here.

What’s new

The proposed rules will now be titled “Court of Workers’ Compensation Claims and Alternative Dispute Resolution.” They will appear under Chapter 0800-02-21 of the Bureau rules section, the same designation as before.

Fear not. The new combined rules mainly consist of a rewriting in a less legalistic style. They also eliminated many of the redundancies. Likewise, we deleted sections that needlessly repeated the statute.

We incorporated four noteworthy changes.

  1. It is now clear that supporting affidavits to support a Request for Expedited Hearing must be signed by the employee. We noticed several situations where the attorney representing the employee filed their own affidavit to support the request for expedited hearing. This was a process ripe for disputes about witnesses, admissible evidence and testimony. Luckily, these issues never came before the Court. So we thought, “better safe than sorry.” From now on, supporting affidavits must be signed by the employee and not their attorney.
  2. Under the present rules, employees can take a nonsuit even while a motion for summary judgment is pending. This is directly in opposition to the Rules of Civil Procedure. We need this to be consistent. This option is eliminated in the new rule. Nonsuits will not be possible when a motion for summary judgment is pending.
  3. We incorporated the deposition-fee rule into our rules. This is the exact same fee rule in 0800-02-16-.01; it can be found in the proposed rule 0800-02-21.17(4). Medical deposition fees cannot exceed $750 for the first hour. It also addresses the length of depositions and additional charges, etc. Again, it is the same rule you have been dealing with, just located within the Court rules specifically.
  4. A minor discovery rule change also appears. Motions to compel answers to interrogatories do NOT have to attach a full set of unanswered interrogatories. If a party fails to answer any of the interrogatories, make that clear in your motion. Motions to compel answers to specific interrogatories must still attach the specific interrogatories.

So there you have it:  the proposed revisions, the reasons why, and the noteworthy changes. If you want to formally comment in person, please attend the public hearing on October 30. You will have two weeks after that to comment in writing. I will gladly receive informal comments or questions off the record before then. Thank you for your patience as we make these changes.

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“And all at once, summer collapsed into fall.” — Oscar Wilde

 

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