(11) Child support issues
If you have a client who has back child support which is the subject of a judgment, you have stepped into a legal minefield by representing that client. There is an Attorney General’s opinion which is attached hereto as Appendix “C” which sets out the general rules. If there has been a contract entered into with an attorney, which provides for attorney’s fees and costs, then the attorney may assert a lien which is superior to the child support department. If there has been a pre-contract seizure of the asset directly with the insurance company then you are at the mercy of the child support division for fees or expenses. The DCS does not have to agree to allow an attorney to collect any fees or recover any costs out of the work comp settlement or judgment.
I suggest to you that this is a flawed statute and an unintended consequence of a law that was passed to benefit children. There is a complete disincentive with no fee or reimbursement of expenses to do anything except withdraw. The client gets $0. Child support gets $0. This is a lose – lose situation.
There is no real solution to this if the attorney general with whom you are dealing takes an unrealistic position. I mention this problem because you need to be aware that as part of the initial file intake, you should ask about any child support liens, arrearages, or anything that could possibly defeat your attorney’s fee and claim for costs. Be sure that your written contract is in front of any type of seizure notification to the insurance company which should then permit your attorney fees and costs and advise your client about all of the unpleasant ramifications of being behind on child support which includes not receiving any of the proceeds although the proceeds will be applied to reduce the past due arrearage. If the arrearage is paid in full, the excess would be paid to the client.
(12) Appeal and Enforcement of Medical Benefits under T.C.A. 50-6-204
As you know, the attorney can obtain attorney’s fees and full costs for enforcement of a court order or Department of Labor order under T.C.A. 50-6-204(b)(2). However, under what circumstances do you have to have a Department of Labor RFA before you can go into court? And can you go to court at all?
Under T.C.A. 50-6-204(g)(2)(A) whether there has been a judgment or decree entered by a court or an approval by the Department of Labor either may request the assistance of a workers’ compensation specialist to determine whether medical care and treatment will be ordered under the RFA process.
(13) Subparagraph 50-6-204(g)(2)(B)
Under T.C.A. 50-6-204(g)(2)(B) a workers’ compensation specialist may also order attorney’s fees and reasonable costs. Under 50-6-204(g)(2)(D)(i) if there has been a request for assistance pursuant to a court judgment or a decree following a trial, the appeal of the specialist order may be to the original court that issued the judgment or decree. The order of the specialist is attached to pleadings but then the original court reviews the order “de novo”.
(ii) if the request for assistance involved a request for medical care under a settlement in court or with the Department of Labor the specialist order may be appealed through the administrative review process pursuant to T.C.A. 50-6-238(b) which is in Chancery Court in Davidson County under the “substantial evidence” test which is much more difficult than a “de novo” review.
The way to avoid taking depositions and then not really having a forum to hear the case (i.e. a trial) is to simply file with a court of competent jurisdiction to enforce the medicals and bypass the Department of Labor. It is not mandatory to go through a RFA in the Department of Labor for medical enforcement as indicated by the word “may” as set out in T.C.A. 50-6-204(g)(2)(A). That statute is attached for reference as Appendix “D”.
(14) Changes to requests for admissions
The rules pertaining to requests for admissions have changed in that requests for admissions now include expert opinions. If you have medical bills generated by five different treating physicians and you are attempting to prove the medical bills in a contested case where the medical bills were not paid, you can ask that the reasonableness and necessity of the medical bills be established through requests for admissions. I suggest separate requests for admissions for each of the bills. You can also request authenticity of business records and/or medical charts through using requests for admissions which will eliminate a lot of subpoenas. In the instance of medical expenses, you can eliminate having to take multiple depositions of surgeons in perhaps two or three separate hospitals to prove medical expenses. Many times you can have a record review to have someone review expenses to comment upon reasonableness and necessity. Sometimes this simply does not work depending upon the complexities of the case. The Requests for Admissions are now the vehicle to take care of that expensive and time consuming problem. It will streamline your proof and save your client thousands of dollarGood luck and best wishes in the upcoming year. Keep the faith. Keep litigating those cases which need to interpret the new laws. Look for novel approaches. If something obviously is wrong with a statute, have it declared void in Court or call your legislator.