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Around the Community: Access to Justice in Tennessee's Workers' Compensation System
AROUND THE COMMUNITY By: Timothy W. Conner
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
7, 2020, but later clinics were postponed due to COVID-19 protocols.
In the last few years, and especially in the last ten months with the imposition of restrictions necessitated by the COVID-19 pandemic, the BWC has emphasized the use of technology to further improve access to justice. In the months since the Court of Workers’ Compensation Claims allowed telephonic settlement approval hearings, the court has approved almost 5,000 settlements, totaling over $89 million in benefits. Judges have also expanded hearing options for litigants to include telephonic hearings, video conferences, and in-person hearings governed by strict social distancing and mask requirements. In addition, the Court of Workers’ Compensation Claims has a blog called “From the Bench” that summarizes important statutory and case law developments, shows the courts’ calendars, has an FAQ tab, and includes articles written by trial judges on various topics.
The Workers’ Compensation Appeals Board has also leveraged technology to maintain court operations. The Appeals Board has used telephonic and video-conferencing technologies to conduct oral arguments in a number of cases, with additional video-conference oral arguments scheduled in early 2021. The Appeals Board’s webpage has links to the rules governing the appeals process, and the Appeals Board added an FAQ page to provide useful information to litigants involved in an appeal. Finally, in conjunction with the trial court, the Appeals Board helped produce an updated guide for self-represented parties, which is available online or in hard copy in English and Spanish. Currently, the Appeals Board is working to update a video that introduces parties to the appellate process, which is also available on the BWC’s website.
Access to Courts’ Decisions
Orders of the Court of Workers’ Compensation Claims and opinions issued by the Appeals Board are available from several online sources. In addition to subscription services such as Lexis and Westlaw, all orders and opinions are available for review on the Bureau’s website for free. In addition, all Appeals Board opinions are provided to the Tennessee Bar Association, which summarizes and provides links in its daily email blast, TBA Today.
Recently, the BWC partnered with an online platform called Court Listener, which provides free access to all orders and opinions in a searchable format.8 At https://www.courtlistener.com/opinion, the user can choose the jurisdiction and court to be searched, then input whatever key words the user is interested in researching.
Access to justice is an issue critical to the legal profession and, under the leadership and guidance of the Tennessee Supreme Court, is an issue being addressed head-on by the BWC and Tennessee’s workers’ compensation courts.
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8 Access to Justice, Tennessee State Courts, http://tncourts.gov/programs/accessjustice (last visited December 29, 2020). The most recent Strategic Plan can be found at http://tncourts.gov/sites/default/ files/docs/2020_atjc_strategic_plan .pdf Tenn. Code Ann. § 50-6-216(a). Id. Tenn. Code Ann. § 50-6-216(e)(3). The BWC’s Ombudsman Program can be reached Monday-Friday from 7:00 a.m. – 4:30 p.m. (central time) at 800-332-2667. The WC bot can be accessed at www.help4tn.org under the “Employment” tab. Order and opinions can be accessed directly for free at https://www.courtlistener. com/court/tennworkcompcl/ and https://www.courtlistener.com/court/ tennworkcompapp/.
