By Judge Robert Durham, Cookeville
Like everyone else, I have my limits. There are some things I just can’t do, even if I want to. For example, I can’t dunk a basketball, and it doesn’t matter how much I practice, I will never be able to go in for that monster slam.
Another thing I can’t do is exert jurisdiction over substantive issues in a case before a Dispute Certification Notice is filed. The law simply doesn’t give me that option.
The reason I bring this up is that I recently considered Motions to Dismiss for Failure to Prosecute in two claims. Although separate cases, they had some common features. After initial mediation, the mediators in both cases issued Dispute Resolution Statements asserting that additional discovery or medical assessments were necessary before the claims could be further mediated.
However, little progress was made in either case, and after several months, the employers filed their respective Motions to Dismiss for Failure to Prosecute under Rule 41.01 of the Tennessee Rules of Civil Procedure. Both were submitted without corresponding Dispute Certification Notices.
Tennessee Code Annotated section 50-6-236(d)(3)(A) unambiguously states that “No party is entitled to a hearing before a workers’ compensation judge to determine temporary or permanent benefits … unless a workers’ compensation mediator has issued a dispute certification notice[.]” Given this language, I felt I had no choice but to deny the motions based on lack of jurisdiction. (Of course, the Court still hears non-substantive issues such as discovery disputes or motions to withdraw.)
I can certainly understand the frustration employers might feel with employees who it seems are doing nothing to pursue their cases but nevertheless refuse to withdraw or settle their claims. However, filing motions to dismiss or for summary judgment before the issuance of a Dispute Certification Notice will not provide a remedy.
Fortunately, there is a solution. As MOST described in a blog post a few weeks ago, they have created a new form called a Request to Resume Mediation. (Since this is State Government, we need an acronym for this form. I propose the “ReReMe.” Catchy, huh?)
It’s a simple form that either party can submit when the actions outlined in the Dispute Resolution Statement did not go as planned or additional issues have arisen. If further mediation is unsuccessful, the mediator will submit a Dispute Certification Notice, giving the Court proper jurisdiction to consider substantive issues.
The Request to Resume Mediation is the first step in giving the Court the authority it needs to make a judgment in an inactive claim. The procedure should allow the parties to quickly move to a resolution, either by agreement or through Court intervention, which is to everyone’s benefit.