TBA Law Blog

Posted by: Kenneth Switzer & Jane Pribek on Mar 1, 2016

Journal Issue Date: Mar 2016

Journal Name: March 2016 - Vol. 52, No. 3

A Primer

On July 1, 2014, the Tennessee Court of Workers’ Compensation Claims was born. About a month later, the Tennessee Workers’ Compensation Appeals Board opened its doors. Our courts were part of a historic change in the law: Tennessee joined 48 other states in their approach to workers’ compensation claims. Going forward, state trial courts with general jurisdiction would no longer decide workers’ compensation cases, but rather, specialized courts devoted exclusively to workers’ compensation would resolve them.

Our courts were conceived with passage of the 2013 Workers’ Compensation Reform Act.[1] Arguably, the creation of the courts themselves[2] was the law’s most significant change to workers’ compensation in Tennessee, but lawmakers passed other substantial revisions as well. Specifically, the Reform Act contains a new definition of injury, so that only injuries arising “primarily out of and in the course and scope of employment” are compensable.[3] Further, the Reform Act did away with “remedial construction,” so that now the statute is construed fairly and impartially, favoring neither the employee nor the employer.[4] In addition, all permanent impairment ratings are now expressed as a percentage of impairment to the body as a whole using the AMA Guides to Permanent Impairment, 6th Edition,[5] and a 450-week base.[6]

The General Assembly enacted many more changes as well, fueling much commentary, which will not be recapped here. However, it is safe to say the 2013 Reform Act sparked criticism from both the plaintiff and defense bars. Since the law took effect, lawyers on both sides have expressed emotions ranging from mild uncertainty to major anxiety about how to proceed. Almost daily, lawyers make statements to the court along the lines of, “Judge, this is my first hearing,” “This is uncharted territory,” etc. At the same time, like most courts nationally, our courts serve a sizeable number of self-represented litigants: Approximately 40 percent are self-represented employees, who, understandably, also tend to convey trepidation.

This article’s purpose is two-fold: 1) to report, briefly, the court’s progress, approximately a year and a half into the new system; and, 2) more importantly, to allay some of the concerns and offer pointers on how best to present cases in the Court of Workers’ Compensation Claims.

The First Year’s Report Card

At the trial court level, in our first year, because we adjudicated injuries occurring on or after July 1, 2014, the overwhelming majority of evidentiary proceedings were “Expedited Hearings,” which typically culminate with interlocutory orders regarding medical and temporary disability benefits. As of Jan. 31, the court conducted 262 Expedited Hearings where a judge issued an order. As the name implies, Expedited Hearings are frequently requested within weeks of an injury. Parties may seek Appeals Board review of Expedited Hearing orders immediately.

We move cases. At the trial level, on average, 52 days pass from the time a mediator certifies a dispute to our court until a workers’ compensation judge issues an order. Most of that time involves the parties agreeing to a hearing date. The average time it takes for a judge to issue an order is 15 days from the Expedited Hearing. Once a case is appealed, the new law mandated just seven days to issue an appellate opinion.[7] In the first year, every appeal met that benchmark. In fact, the average time for a decision is 4.27 days — far less time than under prior law. This dramatic shortening of the time required for a party to have his or her “day in court” was one of the central goals of the Reform Act. The court is pleased to report it is already being realized.

Another key goal for our new courts was better quality outcomes. At the trial level, the court is completing this goal, too, although admittedly, this is subjective and we are biased. One indicator that our courts perform high-quality work stems from the law itself: The Reform Act mandated the application of the Rules of Evidence and Civil Procedure by the new courts.[8] Under the former system, when parties sought relief administratively, these rules didn’t apply. Once an employee exhausted the administrative remedies, relief was available in the trial courts, which used these rules. Yet the results, overall, were less predictable and the length of time it took to reach a conclusion was measured in years, not days.

The court recently surveyed both self-represented litigants and attorneys who have appeared in the court. As expected, some respondents were quite critical of the new system. After all, in every case, one side prevails and the other does not, so odds are at least 50 percent will be unhappy. However, the majority expressed satisfaction in terms of whether the court and bureau staff treated them respectfully, and whether they have confidence in the system. We plan to re-survey our court’s clientele regularly, and to conduct informal listening/Q and A sessions where members of the public and the practicing bar are welcome to voice their opinions and ideas. We are always open to suggestions for improvement — especially in our rules, practices and procedures.

Handling Your Case in the New Court

A few months ago, an attorney argued that the court must construe the Workers’ Compensation Law in favor of his client, the employee. A lawyer in another case argued that mere notice of an injury entitled her client, an employee, to a panel of physicians.

With regard to the former argument, as previously stated, the Reform Act requires an impartial construction. As for the latter, the Appeals Board clarified an employer’s duty to provide a panel, along with its right to investigate and potentially deny a claim without providing a panel.[9] It was apparent that both lawyers, while they knew their cases well and were otherwise zealously representing their clients, simply hadn’t done their homework when it came to the law. On the flipside, an attorney recently correctly cited an Appeals Board opinion, which was made a part of the resulting order ruling in his client’s favor. Clearly, he did a little legal research before coming to court. It did not go unnoticed.

The point is, our opinions, both at the trial and appellate level, are free, searchable and easily accessed at the University of Tennessee College of Law Library website,[10] as well as on LEXIS and Westlaw. Attorneys must keep up with the law, yet it appears some counsel have not read the Reform Act or the Appeals Board’s interpretations of it. This can be fatal to your position, but it also opens up the possibility of several other unpleasant consequences, ranging from embarrassment, to ethics complaints and malpractice claims.

Trial court opinions offer insight into a particular judge’s thought processes or judicial temperament, but they likely won’t hold a great deal of persuasive value. They should thus be cited sparingly, given the fact-intensive nature of workers’ compensation. Rather, the Appeals Board opinions offer the bulk of citable authority. (See “Significant Appeals Board Opinions for 2014-15”.)

On a related note, it’s important to know the rules — all of them. With regard to the Rules of Evidence, for example, the most frequent objections lawyers make in our court relate to hearsay and/or relevance. If need be, brush up on the evidence rules before you come to court. Our court additionally adheres to the Bureau of Workers’ Compensation Mediation and Hearing Procedures,[11] as well as Practices and Procedures,[12] both of which can be found on the Bureau’s website.[13]
Lawyers and self-represented litigants alike often fail to know/follow a few key rules, outlined below.

Representation by counsel.[14] Corporations must be represented by counsel in all court proceedings.[15] File a notice of appearance. Alternatively, attorneys who sign forms or pleadings filed with the clerk are deemed counsel of record.[16] This means attorneys who wish to withdraw from a case must move the court for permission, accompanying the motion with an appropriate affidavit.[17]

Alternative Dispute Resolution.[18] The Bureau’s mediators are trained and experienced, and they enjoy an impressive success rate when it comes to fostering settlements. To help them do their jobs, be as prepared to participate in the mediation as you would be for a court hearing. Negotiate in good faith, or the mediator might refer the matter for a penalty.[19] If the parties cannot reach agreement, review the mediator’s draft “Dispute Certification Notice” carefully to ensure its overall accuracy and especially that it lists all disputed issues. Issues not listed on it generally cannot be adjudicated.[20]

Request for Hearing and Docketing of Cases.[21] After the mediator files the Dispute Certification Notice with the clerk, a party has 60 days to file either a Request for Expedited Hearing or a Request for Initial Hearing.[22] As explained above, an Expedited Hearing is an evidentiary hearing regarding interlocutory relief, while an Initial Hearing is for scheduling the case. If neither is filed, the clerk places the case on the court’s show-cause docket. At a show-cause hearing, the parties must appear to show cause — good cause — why the case should not be dismissed.[23] As noted above, our court places a high premium on keeping cases moving whenever possible.

Expedited Hearings and Decisions on the Record.[24] Requests for Expedited Hearings must be accompanied by affidavits and any other information demonstrating that the employee is entitled to temporary disability or medical benefits.[25] The court will deny requests that are not accompanied by affidavits; however, parties may re-file them, within the rules’ applicable timeframe, with affidavits and the other information.

Within five business days of the request, the opposing party must file all information in its possession demonstrating that the moving party is not entitled to the requested relief.[26] This is an area where several practitioners have suggested a rules revision to allow more time to respond. Change might be in the works; stay tuned.

In the alternative, a party may request a ruling on the review of the file[27] — another area where refinements appear to be necessary and are forthcoming. The judge may review the file to determine if such a ruling is appropriate and if not, may order an in-person hearing.[28] Generally, we favor in-person hearings, followed by telephonic hearings, with file reviews coming in last, because face-to-face hearings are the best setting for introducing and/or challenging the admissibility of evidence and for making credibility determinations.

With both hearings and file reviews, submitting pre-hearing briefs, containing facts and law, is strongly encouraged but not required.

Discovery.[29] The Rules of Civil Procedure apply unless the court’s own rules provide an alternative procedure.[30] Discovery disputes are most often decided on the written materials only, and petitions must be accompanied by a statement certifying the parties made a good-faith effort to resolve the issues by agreement, but were unable to do so.[31]

The Bureau’s rules provide that medical records signed (including electronic signatures) by the provider or records custodian are admissible.[32] Records must be filed with the Bureau no later than 10 business days before a scheduled hearing.[33] When the records exceed 10 pages, they should include a table of contents and the pages should be numbered.[34] Please be selective about the submitted records: Omit fax coversheets, appointment notices, notes regarding unrelated medical conditions, hospital discharge instructions, etc. This is really just a matter of being respectful of everyone’s time.

Compensation Hearing Procedure.[35] No more than 10 days before a scheduled Compensation Hearing, the parties, jointly or individually, must file a prehearing statement using a template on the court’s website.[36]

The parties also must file a list of proposed exhibits, copies of deposition transcripts of medical experts, and a witness list. Failure to disclose a witness, unless calling him or her for impeachment or rebuttal, precludes that witness’ testimony.[37] If you are subpoenaing witnesses, the judge will sign the subpoenas in blank, and the parties must complete and serve their own subpoenas no later than five days before the compensation hearing.[38]

Settlement approvals.[39] Check the court’s website to see when settlement approvals take place at the regional office where you plan to obtain the approval. Unless the settlement is disputed, the agreement must contain language stating that the employee is receiving substantially the benefits provided by the Workers’ Compensation Law.[40] If the claim is disputed, the agreement must contain language that the settlement is in the employee’s best interest.[41] The court has templates for settlement documents on the website. Please stick to them, and do not insert broadly worded release language. We will strike unnecessary language or we will reject the settlement in its entirety.

Conclusion: Embracing Change

Finally, if there is one overarching piece of advice I can give, this is it: This is not the former “Request for Assistance” setting anymore. Consider:

  • Under the old law, there were few if any rules when the specialist conducted an informal teleconference. Under the new law, a judge conducts a formal hearing, and the Rules of Evidence and Civil Procedure, and the bureau’s and court’s own rules, all apply.
  • Under the old law, adjustors and anyone who wished to participate in a teleconference were welcome. Under the new law, employers are represented by counsel in court.
  • Under the old law, parties and counsel wrote letters and emails to convey their positions. Under the new law, they file formal pleadings and briefs.

The bottom line is we are a court, which, by its very definition, indicates an elevated degree of formality, professionalism and expertise. If you are ever uncertain regarding how to approach a matter, ask yourself how you would handle it if you were in the local chancery or circuit court. Stated another way, when in doubt, err on the side of formality. (Also, see Judge Pamela Johnson’s insightful list of Do’s and Don’ts.)

Obviously, this article cannot address every question that has been or will be raised regarding the new law. We have tried to cover those that are frequently asked, but at least weekly some new scenario arises where we on the court are initially stumped as well. Be patient with us.

Need Assistance?

Address your procedural questions to:  

  • Court Clerk Penny Shrum at WC.CourtClerk@tn.gov or
  • Jane Pribek Salem at jane.f.salem@tn.gov.
Self-represented parties can reach the bureau’s ombudsmen at 1-800-332-COMP (2667).


  1. 2013 Tenn. SB 200, 208th Gen. Assemb., (Tenn. 2013).
  2. Tenn. Code Ann. § 50-6-238 (2015).
  3. Tenn. Code Ann. § 50-6-102(14) (2015).
  4. Tenn. Code Ann. § 50-6-116 (2015).
  5. Tenn. Code Ann. § 50-6-204(k)(2)-(3) (2015).
  6. Tenn. Code Ann. § 50-6-102(15)(D) (2015).
  7. Tenn. Code Ann. § 50-6-219(a)(1)(A) (2014) previously mandated the Appeals Board to render opinions on interlocutory orders within seven business days of receiving an appeal. However, lawmakers amended that provision in May 2015, so that now Tenn. Code Ann. section 50-6-217(d)(1) (2015) allows the Appeals Board to extend that time “only in exceptional circumstances not to exceed five (5) additional business days[.]”
  8. Tenn. Code Ann. § 239(c)(1) (2015).
  9. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *10-13 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015).
  10. http://trace.tennessee.edu/utk_workerscomp.
  11. Tenn. Comp. R. & Regs. 0800-02-21, et. seq. (2015).
  12. https://www.tn.gov/assets/entities/labor/attachments/Practices_and_Procedures-WC_Court.pdf.
  13. https://www.tn.gov/workforce/topic/wc-court-of-wc-claims.
  14. Tenn. Comp. R. & Regs. 0800-02-21-.05 (2015).
  15. Tenn. Comp. R. & Regs. 0800-02-21-.05(1)(c) (2015).
  16. Tenn. Comp. R. & Regs. 0800-02-21-.05(2) (2015).
  17. Tenn. Comp. R. & Regs. 0800-02-21-.05(3) (2015).
  18. Tenn. Comp. R. & Regs. 0800-02-21-.11 (2015).
  19. Tenn. Comp. R. & Regs. 0800-02-21-.11(2) (2015).
  20. See Tenn. Code Ann. § 239(b) (2015); see generally Dorsey v. Amazon.com, No. 2015-001-0017, 2015 TN Wrk. Comp. App Bd. LEXIS 13 (Tenn. Workers’ Comp. App. Bd. May 14, 2015).
  21. Tenn. Comp. R. & Regs. 0800-02-21-.12 (2015).
  22. Tenn. Comp. R. & Regs. 0800-02-21-.12(1) (2015).
  23. Tenn. Comp. R. & Regs. 0800-02-21-.12(1) (2015); see Smith v. The Newman Group LLC, No. 2015-08-0075, 2015 TN Wrk. Comp. App. Bd. LEXIS 30 (Tenn. Workers’ Comp. App. Bd. Sept. 21, 2015).
  24. Tenn. Comp. R. & Regs. 0800-02-21-.14 (2015).
  25. Tenn. Comp. R. & Regs. 0800-02-21-.14(1)(a) (2015); see Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN Wrk. Comp. App. Bd. LEXIS 14 (Tenn. Workers’ Comp. App. Bd. May 18, 2015).
  26. Tenn. Comp. R. & Regs. 0800-02-21-.14(1)(b) (2015).
  27. Tenn. Comp. R. & Regs. 0800-02-21-.14(2) (2015).
  28. Tenn. Comp. R. & Regs. 0800-02-21-.14(2)(a) (2015).
  29. Tenn. Comp. R. & Regs. 0800-02-21-.16 (2015).
  30. Tenn. Code Ann. § 239(c)(1) (2015).
  31. Tenn. Comp. R. & Regs. 0800-02-21-.16(2)(c) (2015).
  32. Tenn. Comp. R. & Regs. 0800-02-21-.16(6)(b) (2015).
  33. Tenn. Comp. R. & Regs. 0800-02-21-.16(6)(a) (2015).
  34. Tenn. Comp. R. & Regs. 0800-02-21-.16(6)(c) (2015); see James v. Landair Transport Inc., No. 2015-02-0024, 2015 TN Wrk. Comp. App. Bd. LEXIS 28, at *8-9 (Tenn. Workers’ Comp. App. Bd. Aug. 26, 2015).
  35. Tenn. Comp. R. & Regs. 0800-02-21-.18 (2015).
  36. Tenn. Comp. R. & Regs. 0800-02-21-.18(2) (2015).
  37. Tenn. Comp. R. & Regs. 0800-02-21-.18(4) (2015).
  38. Tenn. Comp. R. & Regs. 0800-02-21-.18(6) (2015).
  39. Tenn. Comp. R. & Regs. 0800-02-21-.19 (2015).
  40. Tenn. Code Ann. § 240(a)(2) (2015); Tenn. Comp. R. & Regs. 0800-02-21-.19(2) (2015).
  41. Tenn. Code Ann. § 240(e) (2015); Tenn. Comp. R. & Regs. 0800-02-21-.19(3) (2015).

Chief Judge Kenneth M. Switzer KENNETH M. SWITZER is Chief Judge of the Tennessee Court of Workers’ Compensation Claims in Nashville. Before taking the bench, he practiced general civil litigation, with an emphasis on workers’ compensation and representing both plaintiffs and defendants, for approximately three decades.




Jane Pribek Salem JANE PRIBEK SALEM is the assistant to Chief Judge Kenneth M. Switzer of the Tennessee Court of Workers’ Compensation Claims in Nashville. She is the former editor-in-chief of Wisconsin Law Journal, and a former family law practitioner in Milwaukee, Wis. She attended Marquette University Law School and lives in Nashville.