By: Richard Clark, Of Counsel, Nashville

As everyone in the industry knows by now, the Tennessee Workers’ Compensation Act underwent a major procedural and substantive overhaul in 2013 with the relevant reforms going into effect on July 1, 2014. Tennessee employers, insurance professionals, attorneys and personnel with the Bureau of Workers Compensation have been operating under the new framework since that time. Just like with any new system or process, a fine-tuning in certain areas of the new BWC program was needed and one was recently addressed. As of November 30, 2016, the BWC implemented a few major rule changes to their procedures for mediations and hearings.

Upon review of the new procedural rules, the most applicable rule for employers and insurance professionals involves the time frame for the submission of a C-41 Wage Statement. In order to avoid confusion, the BWC has changed the existing rule to state that a C-41 Wage Statement must be filed within seven (7) days after a request made from a mediating specialist or fifteen (15) days after the Dispute Certification (“DCN”) is issued, whichever is sooner. As the readers likely know, sometimes the employer or insurance professional has not retained counsel at this stage of the Alternate Dispute Resolution (“ADR”) process. Therefore, it is critical for the relevant personnel to be aware of this new rule to avoid possible penalties.

A relevant change for attorneys involves “Responses to Hearing Requests.” The Rule before November 30, 2016, required the party opposing a Request for an Expedited Hearing (“REH”) to file all of their documents (including any affidavits) within five (5) days after receiving the REH. The new rule allows the opposing party to file their necessary documents at least ten (10) days prior to the Expedited Hearing. Additionally, the opposing party must submit an explanation in writing as to why the relief requested in the REH should not be granted and to provide its witness list for the upcoming Expedited Hearing. If the opposing party fails to properly file the explanation and/or witness list, the BWC Judge may exclude certain witnesses and/or evidence.

In my opinion, the most strategically beneficial rule for defense attorneys is the new rule involving a Summary Judgment at the BWC. The new rule allows an employer/carrier to file a Motion for Summary Judgment (“MSJ”) after an order from an expedited hearing denying the claim on grounds of compensability, and the appeal affirming the denial has occurred. As you can imagine, this will allow employers/carriers an opportunity to dispose of cases much more efficiently once the claim has been determined non-compensable at the expedited hearing and appellate levels. It is important to point out, though, that the filing party must provide self-represented litigants a copy of the MSJ pursuant to the Court’s Practices and Procedures.

I would be irresponsible to not applaud the BWC for realizing certain areas of the post-July 1, 2014 law requires fine-tuning and to act swiftly in their efforts to implement new rules to address particular procedural concerns. As we move forward under the new framework, it will be critical for participants in the BWC system to provide the BWC with constructive feedback related to all aspects of the ADL system. As you can see from these changes, the right people are listening and taking action.