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Industry Insights

Switzer: Important Change Coming Soon

  • State: Tennessee

Beginning Monday, all mediations in cases pending before the Court of Workers’ Compensation Claims will conclude with the issuance of a dispute certification notice.

Chief Judge Kenneth M. Switzer

Chief Judge
Kenneth M. Switzer

To explain the reason for the change, it all has to do with TNComp, the Court of Workers’ Compensation Claims’ electronic court management system.

We’ve been using the system for close to nine years now. In addition to allowing us to avoid keeping file cabinets full of paper, it allows you to have access to everything the judge can see in a file from the comfort of your office. You can also directly file documents into the system 24/7/365; no more turnaround time for the clerk to manually enter the filings.

TNComp is great, but with the passage of time, we’ve discovered ways we’d like to improve it. Its creators developed a way to get files to a judge and into the clerk’s hands. But the filing of a petition does not instantly put that petition into TNComp. Administrative staff reviews the petition for missing information, and the case is assigned to a mediator. But the petition is still waiting for the door to TNComp to open. 

The key to the door and creation of a file the judge can see has always been the dispute certification notice. Until that form is generated, TNComp won’t accept the petition and other contents. That needs to be fixed.

But fixing it through software changes is a bit more expensive than you might surmise. And the state, like us all, has budget limits. So, we may get there someday with software, but that day is not tomorrow.

A few years ago, Mediation and Ombudsman Services of Tennessee created the dispute resolution statement. It was a way for a mediator to memorialize a resolution of some, but not all, aspects of a claim. A dispute resolution statement might reflect, for instance, that the parties agreed on a panel being provided or temporary benefits started. But once these were produced, no method existed to follow up on that case.

A dispute resolution statement “key” did not fit the lock to TNComp. It was all dependent on the parties returning to a mediator and receiving a dispute certification notice. Unfortunately, we’ve discovered that some self-represented employees thought their cases were over after the dispute resolution statement was issued. Some even thought their claims were denied when they weren’t. Further, the judges didn’t even know when a dispute resolution statement had been issued.

So we’re making the change described above. This occurs not long after the Appeals Board commented in Thomas v. Duracell-Cleveland as follows:

            [W]e address ... the function and purpose of a dispute resolution statement as used by bureau mediators. The term “dispute resolution statement” is not defined or discussed in the bureau’s regulations governing the mediation process. The term is also not contained in Tennessee Code Annotated Section 50-6-236, which discusses the duties of bureau mediators and the procedures for mediating claims, nor is it contained in any other section of the Workers’ Compensation Law. The dispute resolution statement is an internal form issued by a mediator to summarize the terms of any agreement reached by the parties as to one or more preliminary issues in the case, or it is used to indicate the parties have chosen not to proceed with prosecuting the case at that time. However, a mediator’s issuance of a dispute resolution statement has no legal impact on the pendency of the claim. Instead, the petition remains active and unresolved until one of the following events occurs: (1) an order of voluntary dismissal is entered by the court; (2) an order of involuntary dismissal is entered after the issuance of a DCN; (3) a settlement agreement is reached by the parties and approved by a workers’ compensation judge pursuant to Tennessee Code Annotated Section 50-6-240; or (4) a compensation order is issued by the trial court. Taylor v. American Tire Distributors, No. 2015-06-0361, 2017 TN Wrk. Comp. App. Bd. LEXIS 48, at *6 (Tenn. Workers’ Comp. App. Bd. Aug. 15, 2017). In short, a dispute resolution statement issued by a mediator does not serve to dismiss or resolve a claim, and that petition remains pending until one of the four events noted above occurs.

To recap, beginning Monday, all mediations in cases pending before the Court of Workers’ Compensation Claims will conclude with the issuance of a dispute certification notice. The issuance of a dispute certification notice allows for entry of the case into TNComp and ensures that a judge shepherds every case to a conclusion.

Even if you reach an agreement to provide a panel, the mediator will prepare a dispute certification notice to unlock TNComp, and the case will be assigned to a judge. The judge will be charged with oversight to make sure the case moves steadily toward resolution. Mediators will no longer use the dispute resolution statements.

You’ll always be able to return to mediation. As it is now, you’ll need a new dispute certification notice before you can have an expedited or compensation hearing. Instead of filing a request to return to mediation using the template on the website, you can just file a motion making that request. Or simply ask the judge to send you there during any status hearing.

As with any change like this, we’ll experience a few bumps in the road. We’ll get used to it, though, and in six months you won’t even remember the old method. Best of all, cases will get resolved faster.

Kenneth M. Switzer is chief judge in the Tennessee Court of Workers' Compensation Claims, Nashville. This entry is republished with permission from the court's blog.

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