By Judge Lisa Lowe, Knoxville
If you’re in need of a New Year’s resolution, here’s a great one to work on: managing your time in 2022.
Of course we see many lawyers who are already very proficient in this realm. These are the ones who call on day 59 after a dispute certification notice has issued to remind us to set the show-cause hearing. We appreciate you; keep up the good work!
But unfortunately, many others . . . need improvement.
Shakespeare expressed it well centuries ago: “Better three hours too soon than a minute too late.” Another font of wisdom, the Chief Judge, often tells us: “If you’re early, you’re on time; if you’re on time, you’re late; and if you’re late, don’t bother.” Folks, I’m here to tell you, deadlines matter in the Tennessee Court of Workers’ Compensation Claims. They really do.
Consider a few Appeals Board opinions that highlight this point.
In Sadeekah v. Abdelaziz dba Home Furniture and More, the employee obtained a signed Form C-32 approximately 60 days before a summary judgment hearing, but he didn’t inform the employer of his intent to offer the form as evidence until seven days before the hearing. The trial court excluded the form because it wasn’t filed at least twenty days before the hearing as required by Tennessee Code Annotated section 50-6-235(c)(2). The Appeals Board affirmed.
In another case, a trial court granted a motion to exclude a vocational expert’s testimony because the employer’s attorney didn’t comply with a scheduling order deadline requiring disclosure of the expert. On appeal, the employer argued that the Governor’s COVID restrictions in April 2020 made compliance impossible. The Board disagreed in Carter v. Ricoh America Corp., reasoning in part that the employer offered no evidence of any difficulty encountered in seeking an expert during that time.
A common thread between these two cases was that the Board’s standard of review was whether the trial court abused its discretion. This standard sets a high bar for appellants.
In hindsight, the Sadeekah employee could’ve filed the C-32 much earlier but inexplicably didn’t (he was self-represented). As for Carter, the employer could’ve filed a motion before the deadline passed asking to extend the deadline for disclosing its witness and explaining the problems its counsel encountered in retaining the expert.
Why are deadlines so important? Well, “justice delayed….” But also, one of the complaints that spurred the creation of the Court of Workers’ Compensation Claims was that the former system was too slow. Mindful of that concern, the Court wrote that its mission is, in part, to provide an “efficient” system, and a core value is “efficiency.”
This doesn’t mean the Court will never grant deadline extensions or requests for continuances. In fact, we do that often when circumstances warrant. Just make sure you request the extension before the deadline has passed. I can’t emphasize that last sentence enough. This isn’t a circumstance where it’s better to ask for forgiveness than permission.
Consider Love v. Delta Faucet, where the Appeals Board affirmed the trial court’s grant of a continuance of a compensation hearing. The Board agreed with the employer that the court hadn’t expressly found extraordinary circumstances, but it did give adequate reasoning for the decision. Specifically, the employee’s newly-retained attorney wasn’t aware of the deadlines when she was hired, and she immediately took action to move the case forward, including obtaining an independent medical evaluation, attempting to schedule that expert’s deposition, and making a settlement demand before asking for a continuance.
So please, save yourself, your client, and the Court heartache, and make sure you meet your deadlines, in 2022 and beyond. And if, after trying your best, you know you won’t be able to meet the deadline, file a motion for extension (say it with me again…before the deadline has passed).
I wish you luck and success with this and all your other 2022 resolutions. Happy New Year!