Tennessee § 50-6-236 - Workers' compensation mediators program.

§ 50-6-236. Workers' compensation mediators program.

The administrator shall establish a workers' compensation mediators program to assist injured or disabled employees, persons claiming death benefits, employers and other persons in protecting their rights, resolving disputes, and obtaining information pertinent to workers' compensation laws and practices. In accordance with rules adopted by the administrator, the mediator shall conduct alternative dispute resolution and the mediator shall: Mediate all disputes between the parties related to the resolution of a claim for workers' compensation benefits and assist in the adjustment of claims consistent with this chapter and the policies of the administrator; Thoroughly inform all parties of their rights and responsibilities under this chapter, including the right of any party to be represented by an attorney of the party's choice; Accept all documents and information presented to the bureau relating to the employee's wages, medical condition, and any other information pertinent to the resolution of disputed issues and include them in the claim file; and If the parties reach a full and final settlement, the mediator shall reduce the settlement to writing and each party, or their representative, shall sign. Any settlement reached during alternative dispute resolution proceedings shall not become effective, until it has been approved by a workers' compensation judge in accordance with the procedure provided in this chapter. When mediation is held, a person representing the employee and the employer, or the employer's insurer, with the authority to settle, shall attend. It shall not be required that the state or its representative who attends mediation have final settlement authority. Parties entering into mediation shall be prepared to mediate all disputed issues at the beginning of mediation and shall mediate all issues in good faith. When a mediator determines that a party is not prepared to mediate as required or believes a party is not mediating in good faith, the mediator shall include comments to that effect in the dispute certification notice. The administrator is authorized to promulgate rules to effectuate the purposes of this subsection (c) in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The violation of those rules or this subsection (c) may subject the party or their representative to a civil penalty of not less than fifty dollars ($50.00) or more than five thousand dollars ($5,000). If the parties are unable to reach settlement of any disputed issues, the mediator shall issue a written dispute certification notice setting forth all unresolved issues for hearing before a workers' compensation judge. The dispute certification shall be issued on a form prescribed by the administrator and signed by the assigned workers' compensation mediator who shall distribute a copy of the signed dispute certification notice to all parties in accordance with rules adopted by the administrator. No party is entitled to a hearing before a workers' compensation judge to determine temporary or permanent benefits or to resolve a dispute over the terms of an agreed settlement of a workers' compensation claim, unless a workers' compensation mediator has issued a dispute certification notice setting forth the issues for adjudication by a workers' compensation judge. Within five (5) business days after a copy of the dispute certification notice signed by the mediator has been distributed to the parties, any party may, on no more than one (1) occasion for each notice, present a written request that the contents of the dispute certification notice be amended to the mediator who presided over the alternative dispute resolution proceeding. If a written request to amend the dispute certification notice is presented to the mediator before the expiration of the five (5) business day period provided in subdivision (d)(3)(B), the mediator shall, within three (3) business days after the initial five (5) business day period ends, issue an amended dispute certification notice. If no amended dispute certification notice is signed by the mediator and distributed to the parties, the initial dispute certification notice distributed to the parties pursuant to subdivision (d)(3) shall remain in effect. A workers' compensation mediator shall not be an advocate for either party and shall mediate all issues without favor or presumption for or against either party. A mediator shall have no authority to order the provision of workers' compensation benefits. Any person employed as a workers' compensation mediator shall not engage in mediation, litigation, or determination of workers' compensation claims outside of the workers' compensation mediator's duties as a workers' compensation mediator. If, following a request by the mediator, a party fails to produce documents, to cooperate in scheduling mediation, or to provide a representative authorized to settle a matter in attendance at mediation, then the mediator may issue a dispute certification notice and include a statement detailing the party's failure to cooperate, produce documents or to ensure attendance of a representative authorized to settle the claim. On the motion of either party or on the workers' compensation judge's motion, a workers' compensation judge is authorized, but not required, to hold a hearing on the failure to produce documents requested by the mediator, to cooperate in scheduling and to provide a representative who possessed settlement authority. If the workers' compensation judge determines that the failure lacked good cause or resulted from bad faith, then the workers' compensation judge may assess the offending party who failed to take the requested action with attorney's fees and costs related only to the mediation and the hearing. The administrator is authorized to promulgate rules to effectuate the purposes of this subsection (g) in accordance with the Uniform Administrative Procedures Act. Acts 1992, ch. 900, § 11; 1996, ch. 944, §§ 19, 20; 1999, ch. 242, § 1; 1999, ch. 520, § 41; 2004, ch. 962, §§ 18, 19; 2005, ch. 390, § 8; 2013, ch. 289, § 76; 2015, ch. 341, § 15. Compiler's Notes. Prior to the 2013 amendment, the former provisions of this section related to workers' compensation specialists. Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Worker's Compensation Reform Act of 2013.” Amendments. The 2013 amendment, effective July 1, 2014, rewrote the section which read: “(a) The commissioner shall establish a workers' compensation specialist program to assist injured or disabled employees, persons claiming death benefits, employers and other persons in protecting their rights and obtaining information available under workers' compensation laws.“(b) A workers' compensation specialist shall meet with or otherwise provide information to or receive information from injured or disabled employees, employers, insurance carriers and health care providers on behalf of injured or disabled employees. The specialist shall conduct informal dispute resolution by holding benefit review conferences throughout the state. The conference shall be held in the county where the employee lives, unless otherwise agreed to between the parties, or otherwise directed by the commissioner.“(c) Any person employed as a specialist by the commissioner is ineligible to further handle cases that require the person's involvement during this employment as a specialist.“(d) A workers' compensation specialist shall examine any proposed settlement reached during the benefit review conference to determine whether the employee is receiving, substantially, the benefits provided by this chapter.“(e) Each employer shall notify the employer's employees of the workers' compensation specialist service in a manner prescribed by the commissioner. At a minimum, the notice shall include the posting of a notice in one (1) or more conspicuous places. The notice shall include a toll-free number for employees to reach a workers' compensation specialist. The commissioner shall also describe clearly the availability of the workers' compensation specialist on the first report of accident form required by this chapter.“(f) Workers' compensation specialists shall conduct benefit review conferences. The commissioner shall institute and maintain an education and training program for workers' compensation specialists, who must be employees of the division. The specialists shall be trained in the principles and procedures of dispute mediation. The commissioner is authorized to consult or enter into contracts with the federal mediation and conciliation service or other appropriate organizations to accomplish this purpose.“(g) In conducting benefit review conferences, the workers' compensation specialist shall:“(1) Mediate disputes between the parties and assist in the adjustment of claims consistent with this chapter and the policies of the commissioner, before and after the benefit review conference;“(2) Thoroughly inform all parties of their rights and responsibilities under this chapter, including the right of any party to be represented by an attorney of the party's choice;“(3) Ensure that all documents and information relating to the employees' wages, medical condition, and any other information pertinent to the resolution of disputed issues are contained in the claim file at the conference, especially in cases in which the employee is not represented by an attorney; and“(4) Determine whether, under any proposed settlement, the employee is receiving, substantially, the benefits provided by this chapter.“(h) A benefit review conference shall be requested at any time within the limitation period or periods provided in 50-6-203 or 50-6-206 . A workers' compensation specialist shall have the authority to continue or reschedule a benefit review conference. A workers' compensation specialist shall also have the authority to cancel or waive a benefit review conference, solely within the discretion of that workers' compensation specialist.“(i) For the purpose of conducting discovery, workers' compensation specialists shall have the authority, either on their own or at the request of either party, to refer matters to a specially designated attorney within the department who may issue subpoenas, effect discovery, and issue protective orders in the same manner as an administrative judge or hearing officer pursuant to § 4-5-311 .“(j) The workers' compensation specialist may not take testimony but may direct questions to an employee, an employer, or a representative of an insurance carrier to supplement or clarify information in a claim file.“(k) The workers' compensation specialist shall maintain a file concerning these proceedings.“(l ) The workers' compensation specialist shall not engage in litigation or determination of workers' compensation claims outside of the workers' compensation specialist's duties as a workers' compensation specialist.“(m) The commissioner shall establish a program of continuing education and training for workers' compensation specialists in order to assure that specialists maintain current and appropriate skills and knowledge in performing their duties. The program of continuing education shall include, at a minimum, seven (7) hours of continuing education each fiscal year. The minimum seven (7) hours of education shall be specifically in the area of Workers' Compensation Law, compiled in this chapter, and shall be in addition to any mediation training provided to the specialists. Three (3) of the seven (7) hours of education shall be approved by the Tennessee commission on continuing legal education and specialization. In addition to the annual seven-hour continuing education requirement, each specialist hired by the department shall be provided, within one (1) month of the date of hire, formal training and education, which shall include training on the department's workers' compensation system, the Tennessee workers' compensation statutes and caselaw, and the rules and regulations of the division of workers' compensation. Documentation reflecting the type of education and training provided pursuant to this subsection (m) shall be maintained by the administrator of the division of workers' compensation. Documentation of each educational program shall include the date of the program, the name of each specialist attending, a description of the educational program including topics covered, the name of the sponsor or provider of the educational program and the number of hours for each educational program.” The 2015 amendment substituted “bureau” for “division” in (b)(3). Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013. Acts 2015, ch. 341, § 19. May 4, 2015.