AROUND THE COMMUNITY By: Timothy W. Conner Presiding Judge Tennessee Workers’ Compensation Appeals Board
ACCESS TO JUSTICE IN TENNESSEE’S WORKERS’ COMPENSATION SYSTEM The Tennessee Supreme Court, like other high courts across the nation, rightly stresses the need to improve access to the legal system for those unable to obtain legal counsel or representation. In December 2008, the Tennessee Supreme Court “made access to justice its number one strategic priority” and formally adopted its “Access to Justice Initiative.”1 Every two years, the Access to Justice Commission produces a Strategic Plan to continually improve its programs.2 Meanwhile, in early 2013, the Tennessee general assembly passed legislation that fundamentally changed Tennessee’s workers’ compensation system. The bill, known as the Workers’ Compensation Reform Act of 2013, was signed into law by then-Governor Bill Haslam in April 2013 and became effective July 1, 2014. The Act removed workers’ compensation cases from Tennessee’s courts of general jurisdiction (primarily circuit and chancery courts) and created two new courts: the Court of Workers’ Compensation Claims and the Workers’ Compensation Appeals Board. Both courts operate under the auspices of the Tennessee Bureau of Workers’ Compensation (“BWC”). The BWC’s Administrator appoints the judges who serve on the Court of Workers’ Compensation Claims, and Tennessee’s Governor appoints the judges who serve on the Workers’ Compensation Appeals Board. Litigants who are aggrieved by the final dispositions of their cases in those courts can appeal their cases to the Tennessee Supreme Court. Since July 1, 2014, the BWC has processed thousands of claims, most of which were resolved prior to litigation. During that time, the number of self-represented employees in Tennessee’s workers’ compensation system increased significantly. There have been anecdotal reports that some injured workers have difficulty finding attorneys willing to take their cases. So, what is the BWC doing to improve access to Tennessee’s workers’ compensation system? The BWC’s response to this critical issue has been robust. Ombudsmen As part of the 2013 Workers’ Compensation Reform Act, the BWC’s administrator was tasked with establishing an ombudsman program “to assist injured or disabled employees, persons claiming death benefits, employers, and other persons in protecting their rights . . . .”3 The assistance of an ombudsman is available “only to those individuals or organizations that are not represented by an attorney.”4 In 2016, the legislature amended the statute to allow ombudsmen who are also licensed attorneys to “provide limited legal advice” to self-represented parties.5 Currently, the BWC employs four non-attorney ombudsmen and two attorney ombudsmen.
In fiscal year 2019-20, the BWC’s non-attorney ombudsmen resolved almost 2,000 disputes in an average of two to three days without the need for formal mediation or litigation. Once a case moves to the litigation stage, self-represented litigants can ask for the assistance of an attorney ombudsman, who can explain workers’ compensation laws and evidence rules and prepare a self-represented litigant for what to expect during a hearing. In fiscal year 2019-20, the BWC’s attorney ombudsmen assisted 118 self-represented litigants.6 Mediation The BWC also offers free mediation services in all workers’ compensation cases. In fact, mediation is required in almost all cases before a dispute can proceed to litigation. The BWC’s mediators are specially trained in workers’ compensation laws and are tasked with resolving as many cases as possible. Among other duties, mediators are responsible for: (1) mediating all disputes; (2) informing all parties of their rights and responsibilities; (3) facilitating the exchange of relevant information; (4) reducing agreements to writing; and (5) certifying disputed issues. This final step is critically important because, except in certain limited circumstances, an issue cannot be presented to a workers’ compensation judge for resolution unless that issue has been certified by the mediator on a dispute certification notice. In fiscal year 2019-20, the BWC’s mediators resolved over 2,700 disputes through mediation. This represented 81.5% of all disputes that were resolved without the need for litigation, all without financial cost to the parties. Technology The BWC’s website has a number of resources to assist unrepresented parties, including FAQ pages for injured workers and employers, written instructions for filing a claim, and a summary of injured workers’ rights. The website also has links to forms used in the claims process, as well as rules governing mediation, litigation, and appeals. Additionally, the BWC maintains a YouTube page with videos explaining claims processes and court procedures. In an exciting new development, the BWC partnered with the Tennessee Alliance for Legal Services, LMU’s Duncan School of Law, and an online platform called LawDroid to develop a “WC Bot,” which is an interactive platform that uses artificial intelligence technology to assist parties in completing necessary workers’ compensation forms such as the Petition for Benefit Determination.7 This same partnership has resulted in the development of one-day legal clinics at the Duncan School of Law, where law students are trained to answer questions for self-represented employees. The first training session occurred on March continued on page 26
February 2021
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