Vines: Revisions to Appeals Board Rules

Thursday, December 14, 2023 | 0

When speaking on behalf of the Tennessee Workers' Compensation Appeals Board to any audience, I always stress the importance of reading our rules.

They’re our “how-to” manual and can help practitioners and self-represented litigants alike avoid losing an appeal on technical grounds. It’s safe to say that at least 75% of the questions we receive or mistakes litigants make are addressed in the rules, so I truly encourage you to become familiar with them.

This December, it’s even more important than ever that folks familiarize themselves with our rules because they have been revised. Here are the highlights.

Minor things first

Because the workers’ compensation statute and other program rules may be amended as appropriate, we’ve removed certain statutory and regulatory cross-references. (This way, we don’t have to revise our rules every time the statute or other program rules change.) We’ve also done some other basic housekeeping to clean up, simplify or consolidate the rules when possible.

We’ve added a requirement that an affidavit of indigency must be notarized or signed under penalty of perjury, according to Rule 72 of the Tennessee Rules of Civil Procedure. Tenn. Comp. R. & Regs. 0800-02-22-.01(4)(b).

We’ve clarified the contents of the record, specifically noting that “[d]ocuments, testimony or other evidence not contained in the record on appeal” will not be considered by the appeals board. Tenn. Comp. R. & Regs. 0800-02-22-.02(1), (2).

We’ve added a section instructing an attorney on the actions he or she needs to take to withdraw during the pendency of an appeal. This includes certain time frames to object to a motion to withdraw and to allow the now self-represented party to obtain new counsel. Tenn. Comp. R. & Regs. 0800-02-22-.03(4).

We’ve consolidated and clarified the requirements for a brief filed in any kind of appeal. (We didn’t really add anything new; we just put all briefing requirements in one place and numbered them.) Tenn. Comp. R. & Regs. 0800-02-22-.07(2).

Finally (for the minor things, at least), we’ve clarified that if a case is scheduled for oral argument and is then removed from the docket, oral argument in that case "will be considered to have been conducted on the date the case is removed from the docket for purposes of any remaining appeals deadlines.” (This is mainly to account for the deadlines applicable to our issuing a decision, but it would apply to any remaining deadlines.) Tenn. Comp. R. & Regs. 0800-02-22-.08(9).

Major changes

OK, all that was the easy stuff, and most of you probably don’t care about much of it. Pay attention to what’s next, though. These are the bigger changes.

First, what if there is a dispute about the contents of the record on appeal? If the dispute arises before the board has issued a docketing notice, either party may file a motion with the Court of Workers’ Compensation Claims, which will retain jurisdiction to rule on the motion. If the dispute arises after the board has issued a docketing notice, either party must file a motion with the board to remand the case to the Court of Workers’ Compensation Claims so the judge can address the dispute. Tenn. Comp. R. & Regs. 0800-02-22-.02(3).

An important note here: Once a notice of appeal is filed, the Court of Workers’ Compensation Claims loses jurisdiction to take most actions in a case. If you need to file a motion or settle your claim in the trial court, you must file a motion in the board seeking a remand. The clerk of the board and the clerk of the Court of Workers’ Compensation Claims are separate and should be treated that way.

Second, and perhaps the most significant of all revisions, the board has been given the authority in certain limited circumstances to summarily act on an appeal. If a party appeals an order addressing a motion for a continuance, a motion to amend a scheduling order, or an order entering a scheduling order, a party may file a motion “asking the appeals board to shorten or suspend any or all appeal deadlines and summarily act on the appeal through an abbreviated order.” This closes the loophole by which parties who’ve been denied a continuance are able to obtain a de facto continuance simply by filing a notice of appeal. Tenn. Comp. R. & Regs. 0800-02-22-.03(2).

Third, statements of the evidence are no longer required to be joint. The appealing party may submit a statement of the evidence summarizing the trial testimony to the trial judge for approval. The other party then has five business days to file any objections, amendments or alternative statements.

The trial judge is tasked with reviewing the statement(s) to determine whether one is “fair and accurate.” If the trial judge certifies a statement of the evidence as fair and accurate, it will be included in the record on appeal. Otherwise, the record will be forwarded to the board without the statement. This change addresses situations in which the parties cannot or will not cooperate with each other on a statement of the evidence and a transcript is, for whatever reason, not provided. Tenn. Comp. R. & Regs. 0800-02-22-.05(1), .06(1).

Fourth, if the board reverses or vacates an order of the Court of Workers’ Compensation Claims with instructions to enter a dispositive order on remand, a party who wants to appeal that dispositive order must first file a notice of appeal with the board. See Tenn. Code Ann. § 50-6-225(a)(1) (2023). (This is the result of a statutory change in mid-2023 that requires all appeals to be filed with the board first. Parties can no longer appeal directly to the Supreme Court.)

However, that party may then file a motion with the board asking that all record and briefing requirements be suspended and that the board summarily affirm the order and certify it as final for purposes of further appeal. (The board may also do this on its own initiative and in the interest of judicial economy.) Tenn. Comp. R. & Regs. 0800-02-22-.05(6).

Finally, the board may suspend any rule other than those related to the filing of a notice of appeal “in extraordinary circumstances when equity and justice so require.” Tenn. Comp. R. & Regs. 0800-02-22-.03(9).

The revised rules become effective on Dec. 21. We’ll post the entire set of rules with the revisions on the board website soon.

Elizabeth K. Vines is a Workers' Compensation Appeals Board staff attorney in the Tennessee Court of Workers' Compensation Claims, Cookeville. This entry is republished with permission from the court's blog.