By Brian Holmes, Director, Mediation and Ombudsman Services of Tennessee

Being a workers’ compensation mediator is an extremely rewarding job. Mediators help employers, employees, and insurers resolve disputes that impact lives, businesses and careers.

Mediators also confront a number of challenges. Of them, the most difficult might be balancing statutory roles while building cooperative, trusting relationships ̶ especially with persons seen on a regular basis.

Sometimes positive working relationships with attorneys are soured by a mediator documenting a law or rule violation. These relationships are important to mediators and attorneys, and they’re a critical part of the success of the workers’ compensation system.

If a mediator documents a potential law or rule violation involving you or your client, know that he or she didn’t do so lightly. Rather, the mediator gave it lengthy consideration, and did so not as a personal gesture but to promote the integrity of the system.

With this in mind, over the last year the Bureau’s mediation program has worked to improve the process to document possible rule and law violations. These new standards provide a clearer picture than those used in the past, and they will focus on documenting the following violations:

Reporting Violations:

☐   C20 First Report was not filed with the Bureau within 60 days of the date of injury.

☐   Notice to Carrier – Employer did not report the injury to the carrier within one day of knowledge of the injury.

☐   C41 Wage Statement was not submitted to the mediator within 15 days of a mediator’s request.

☐   C23 Notice of Denial or Change/Termination of Benefits was not filed after a claim denial.

Medical Benefit Violations

☐  Employer did not provide a panel of physicians within three business days of notice of the injury.

☐  Employer provided a panel with physicians who would not treat the injured employee.

Mediation Violations:

☐  _______________ did not provide a representative with settlement authority at the mediation.

☐  _______________ did not attend a scheduled mediation.

☐  _______________ arrived more than 30 minutes late to a scheduled mediation without notification.

☐  _______________ did not exchange medical records within 15 days of receipt or filing of a petition for benefit determination.

☐  _______________ failed to timely provide requested documents as required by law within 10 days.

A commonality of these rules is that they promote practices and the timely exchange of information that are essential for a successful mediation. Simply put, it’s hard to negotiate in a vacuum, when an employee feels that his or her claim wasn’t quickly addressed, or when parties don’t give the mediation a fair chance. The rules also promote better communication, which is paramount to resolving disputes.

In addition, all petitions for benefit determination will be reviewed for non-compliance, not just those that impasse. The lead mediators and I will speak with claims professionals, lawyers and other stakeholders, so that the system runs more efficiently, fairly, properly, and with minimal litigation.

Workers’ comp mediation is different

The value of mediation in reducing litigation is well-documented. Attorneys have embraced it in the sixteen years it’s been mandatory. Many attorneys are adept at negotiation and using the mediation process to meet their clients’ needs. They have also realized that workers’ compensation mediation is unique and is very much unlike Rule 31 mediation.

The workers’ compensation mediation method presents a unique feature: mediation begins when a petition is filed. Early in the process, mediators use phone calls and emails to gather facts, share information, and explore issues. Sometimes the problem is resolved without the parties getting together, as is expected in traditional mediation. Other times, conference calls are held to overcome negotiation logjams. This once-unique style of mediation, adopted before the pandemic necessitated telephone and virtual mediations, has proven to be successful for many years.

Other unusual features of Tennessee’s workers’ compensation mediation program are written in the Workers’ Compensation Law. Tennessee Code Annotated Section 50-6-236 defines several roles for mediators. For example, in addition to helping parties resolve a dispute, the law requires mediators to assist parties with the adjustment of claims and to thoroughly inform the parties of their rights and responsibilities. Tenn. Code Ann. § 50-6-236(b)(1)-(2). Importantly, the law also requires documenting on the dispute certification notice any mediation participants who don’t prepare for mediation or who don’t mediate in good faith. Tenn. Code Ann. § 50-6-236(c)(2).

A workers’ compensation mediator’s additional duties under the administrative rules push the envelope even further. These duties are outlined in the Compilation Rules and Regulations. For example:

• The Alternative Dispute Resolution and Court of Workers’ Compensation Claims Rules require the exchange of medical records within fourteen days of receipt, and a mediator or judge may refer any party that doesn’t comply for the assessment of a civil penalty. Tenn. Comp. R & Regs. 0800-02-21.10(2) (August, 2019).
• A wage statement is required within seven days of a mediator’s request or within fifteen days after a dispute certification notice is filed. Any employer who doesn’t file a wage statement within this timeframe may be assessed a civil penalty. Tenn. Comp. R. & Regs. 0800-02-21.10(3).
• The General Rules say a panel of physicians must be provided within three business days of the report of injury, and if not, the employer may be assessed a civil penalty. Tenn. Comp. R. & Regs. 0800-02-01-.06(1)-(2) (May 2018).
• The Enforcement Procedures permit Bureau employees to report any person or entity to the Compliance Program for the assessment of a civil penalty whenever the referring employee believes that there may have been a violation of the rules or statute. Tenn. Comp. R. & Regs. 0800-02-24-.03 (March, 2015).
• Further, the Penalty Procedures state that when a Bureau Employee receives information which may reasonably indicate possible noncompliance or a possible violation of the statute or Rules, the employee shall document the information. Tenn. Comp. R. & Regs. 0800-02-13-.03(2) (June 2017).

Workers’ compensation mediators are in a unique position, compared to other Bureau employees. They learn many intimate claim details and often times get to know parties on a personal level. Their knowledge, experience, exposure, and role as Bureau employees puts them at the precipice for identifying possible non-compliance.

Maintaining good, strong working relationships between mediators and attorneys is vital to the success of the workers’ compensation system. A reliable process of documenting possible law and rule violations allows for consistent expectations and builds trust between mediators complying with the law and the parties they are helping. Working together is the best way to accomplish the goal of education and compliance, so the system runs more efficiently, fairly, and with minimal litigation.

For questions or comments, contact me 615-253-1206 or brian.holmes@tn.gov.