TCA § 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.