Tennessee § 29-13-108 - Claims for compensation — Procedure.

§ 29-13-108. Claims for compensation — Procedure.

A claim for compensation shall be filed not later than one (1) year after the occurrence of the crime upon which the claim is based or one (1) year after the death of the victim or one (1) year after any mental or physical manifestation or injury is diagnosed as a result of an act committed against a minor that would constitute a criminal offense under §§ 39-12-101, 39-13-502 — 39-13-505, 39-13-522, 39-15-302, 39-17-902, and 39-17-1003 — 39-17-1005, and/or any attempt, conspiracy or solicitation to commit such offenses; provided, that upon good cause shown, the time period for filing such claim may be extended either before or after the expiration of the filing period. No claim shall be filed until the crime upon which the claim is based shall have been reported by the victim, or a member of the victim's family, to the proper authorities; and in no case may an award be made where the law enforcement records show that such report was made more than forty-eight (48) hours after the occurrence of such crime unless, for good cause shown, it is found that the delay was justified. Failure of the victim to report a crime because: The victim is physically unable; The victim is a victim of sexual assault; or The victim is a victim of domestic abuse; may all constitute good cause. Each claim shall be filed with the division, in person or by mail. The division is authorized to prescribe and distribute forms for the filing of claims for compensation. The claim shall set forth the name of the victim and that of the claimant, if different than that of the victim, the address of the victim and/or claimant, the county wherein the crime is alleged to have occurred, the name, if known, of the alleged offender, a brief statement of the alleged crime, the date and time the alleged crime was reported to the police, the nature of compensation claimed and the race, sex, national origin and disability, if any, of the victim, and any other information required by the board of claims in order to satisfy federal regulations issued under the Victims of Crime Act of 1984. Within ten (10) days after receipt of the claim, the division shall notify the district attorney general. If a prosecution is pending or imminent for an offense arising out of the crime upon which the claim is based, the division or commission, whichever is applicable, shall suspend all action on the claim upon application of the district attorney general. In such event, the district attorney general shall notify the division or commission, whichever is applicable, within ten (10) days after completion of any such prosecution. Proceedings may further be suspended in the interest of justice if a civil action arising from such offense is pending or imminent. The division or commission, whichever is applicable, shall notify the claimant of any suspension under this subsection (c). A district attorney general who fails to supply the division with the report required in subsection (d) within one hundred eighty (180) days of the division's receipt of the claim shall be deemed to have waived the right to apply for a suspension under this section, unless good cause is shown for such failure. Unless the claim is suspended under subsection (c), the division shall investigate every claim for compensation and shall make every effort to honor or deny each claim within ninety (90) days of receipt of the claim. In investigating the claim, the division shall request from the appropriate district attorney general a report which shall present any information the district attorney general may have in support of or in opposition to the claim. If the claim is denied, the division shall so notify the claimant and inform the claimant of the reasons therefor and of such claimant's right to file the claim with the claims commission within ninety (90) days of the date of the denial notice. If the claim is honored, the division shall so notify the claimant and inform the claimant of the conditions of the settlement offer and of such claimant's right to file the claim with the claims commission within ninety (90) days of the date of the settlement notice if the conditions of the settlement offer are unacceptable. If the division fails to honor or deny the claim within the ninety-day settlement period, the division shall so notify the claimant and shall automatically transfer the claim to the administrative clerk of the commission; however, if the division has not received the report of appropriate district attorney general within the ninety-day settlement period, the division may, in its discretion, suspend action on the claim for an additional period not exceeding ninety (90) days. The division shall notify the claimant of any such suspension. Unless the claim is suspended under subsection (c), the division is authorized to transfer any claim filed under this chapter to the commission prior to the expiration of the ninety-day settlement period. The appropriate district attorney general shall be notified of the action of the division on each claim. Upon filing or transferring a claim for compensation to the commission, the claim shall be considered, determined and subject to appeal in the manner set forth in § 9-8-403. If a claimant consents to having the claimant's claim proceed upon affidavits filed with the commission without a hearing, the state shall be deemed to have waived a hearing on the claim unless the district attorney general requests a hearing within sixty (60) days after the claim is filed with, or transferred to, the claims commission. The district attorney general shall investigate the claim prior to the opening of formal commission proceedings and shall present any information such district attorney general may have in support of or in opposition to the claim. The report of the district attorney general and any police or offense reports attached thereto shall be sufficient compliance therewith; provided, such reports are accompanied by an affidavit of the district attorney general or law enforcement officer, where applicable, verifying the contents of the reports. Notwithstanding the Tennessee Rules of Civil Procedure or the Tennessee Rules of Evidence, the affidavit and report of the district attorney general and the affidavit and report of the law enforcement officer shall be made a part of the record before the commission to the same extent as though the district attorney general or the appropriate law enforcement officer had been present and testified to the matters stated therein. The matters stated in such reports shall be presumed true in the absence of a preponderance of the evidence to the contrary. The personal attendance of the district attorney general and the law enforcement officer may be commanded only if personal attendance is necessary to resolve a good faith dispute concerning the accuracy of information furnished by the district attorney general or law enforcement officer. Where personal attendance is required, the claimant shall serve the appropriate district attorney general and the appropriate law enforcement officer with a subpoena at least fourteen (14) days prior to the hearing which shall contain a clause which reads: “The procedure authorized pursuant to § 29-13-108(e) will not be deemed sufficient compliance with this subpoena.” Notwithstanding any other law to the contrary, if the district attorney general attends the proceeding, the district attorney general may present into evidence any police or offense reports and any other reports generated through the district attorney general's investigation of the claim. The claimant may present evidence and testimony on such claimant's own behalf, or the claimant may retain counsel. Any hearing held by the commission pursuant to this chapter which involves a claim based upon a sexually oriented offense shall, upon request of the claimant or counsel, be held in chambers unless good cause exists to the contrary. With the consent of the commission, the district attorney general may stipulate the circumstances of the claimant's victimization in lieu of direct testimony by the claimant. Upon filing or transferring a claim for compensation to the commission, the division shall attach to the claim all documentation presented by the claimant in support of the claim, evidence received or considered, proposed findings, staff recommendations, memoranda, investigative reports and data submitted to the division. The documents shall be accompanied by an affidavit of an employee of the division, stating in substance that the affiant is a duly authorized custodian of the documents and has authority to certify the documents, and that the documents are true copies of all documents described in this subsection (f). Notwithstanding the Tennessee Rules of Civil Procedure or the Tennessee Rules of Evidence, the affidavit and the documents submitted to the commission by the division shall constitute a part of the record of the commission and shall be considered in adjudicative proceedings under this part, including judicial review thereof. Notwithstanding any other law to the contrary, if the division denies a claim on the basis that the claimant does not meet the eligibility requirements for compensation under this part and the claimant appeals the denial to the commission, or if the division transfers the claim to the commission as a result of its inability to honor or deny the claim within the ninety-day settlement period, the commission shall consider the claim for the sole purpose of determining whether the claimant meets such eligibility requirements. Such eligibility requirements may include a determination as to whether the claimant has shown good cause for failing to file the claim within the one-year period as prescribed in subsection (a). Such eligibility requirements may include a determination as to whether the claimant has shown good cause for failing to file the claim. If the commission determines the claimant meets the eligibility requirements to receive compensation under this part, the commission shall enter an appropriate order reflecting such determination and remand the claim to the division of claims and risk management for the purpose of determining the amount of compensation to which the claimant is entitled and the manner in which such compensation shall be paid pursuant to § 29-13-111. Such order shall include the findings of fact enumerated in § 29-13-109(b)(2)(A)-(H) and in § 29-13-109(b)(2)(L)-(O). Notwithstanding § 9-8-406 or any provision of this part to the contrary, the department of treasury may, at its sole discretion, submit a report to the commission which explains the department's action on the claim. Any such report shall be filed within the time allowed for the filing of a responsive brief by a party. The department shall serve copies of the report upon the claimant and the district attorney general. Any such report shall be considered by the commission without oral argument by the department. The commission shall attach to its decision all documentation presented in support of a claim for which compensation is awarded, as well as an executed subrogation agreement. The administrative clerk of the commission shall, within five (5) days of receipt of the order, notify the claimant in writing of the decision and forward to the division a certified copy of the decision. The commission may, at any time, on its own motion or on the application of the claimant, vary any award for the payment of compensation made under this chapter in such manner as the commission deems appropriate, whether as to the terms of the order or by increasing the amount of the award, or otherwise. Acts 1976, ch. 736, § 8; T.C.A., §§ 23-3508, 23-35-108; modified; Acts 1985, ch. 278, § 13; 1985, ch. 478, § 24; 1986, ch. 911, § 3; 1988, ch. 776, § 7; 1989, ch. 129, §§ 11-13; 1993, ch. 494, §§ 5-7, 19; 1996, ch. 675, § 14; 1998, ch. 785, §§ 20-26; 2000, ch. 573, § 3; 2003, ch. 188, § 1; 2007, ch. 211, § 3; 2011, ch. 47, § 20; 2017, ch. 182, § 1; 2017, ch. 271, § 1. Compiler's Notes. Acts 1989, ch. 129, § 23 provided that the 1989 amendments by that act shall apply to all claims for compensation filed on or after January 1, 1990. Acts 2000, ch. 573, § 5, provided that the amendment to this section by that act shall apply to all claims for compensation arising from offenses occurring on or after July 1, 1999. Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of this legislation, which was July 1, 2011. Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes. Acts 2017, ch. 182, § 2 provided that the act, which amended this section, shall apply to all applicable claims for compensation filed on or after July 1, 2017. Amendments. The 2017 amendment by ch. 182, in (c), deleted “and the alleged offender or offenders, if described in the claim” at the end of the first sentence, and substituted “application of the district attorney general” for “application of either the district attorney general or the alleged offender” at the end of the second sentence. The 2017 amendment by ch. 271 substituted “division of claims and risk management” for “division of claims administration” in the next to last sentence of (g). Effective Dates. Acts 2017, ch. 182, § 2. July 1, 2017. Acts 2017, ch. 271, § 3. May 4, 2017. Cross-References. Child sexual abuse generally, title 37, ch. 1, part 6. Victims bill of rights, title 40, ch. 38. Law Reviews. Tennessee's Criminal Injuries Compensation Act, 7 Mem. St. U.L. Rev. 241. Attorney General Opinions. Notice to deceased offender's estate, OAG 83-007 (1/7/83).