NOTE: This is a guest article written by James “Jay” Hicks, an ombudsman attorney with the Tennessee Bureau of Workers’ Compensation. Abbie Hudgens requested he leverage his expertise on the complicated subject of self-represented injured workers to share insights on the process, trends, and best practices.
Imagine that you got hurt on the job. You are unable to work because of the pain in your lower back. Now your benefits have been terminated, and you do not understand why. The insurance company says that the doctor they provided you does not believe that your injuries are “work related.” Without an income, bills start piling up and your rent or mortgage payment is overdue. You tried to hire an attorney, but they said your case is not worth enough for them to represent you. You’ve never had any legal training or any experience with the workers’ compensation system, but you have no choice but to represent yourself. After your attempts to reach a compromise with the insurance company failed, you reluctantly filed a lawsuit. Shortly after your filing, an attorney for the insurance company mails you documents. They say “Employer’s First Set of Interrogatories and Requests for Production” at the top of the page. An attached letter says you have thirty days to respond to them, and you have no idea where to begin.
Now picture yourself in a courtroom. You may not even be sure where you are supposed to stand when addressing the judge or questioning a witness. Everything going on in the courtroom feels foreign and confusing to you. The attorney representing your employer and their insurance carrier is sitting at the table next to yours. When you testify, the attorney stands up and makes objections based on rules you do not understand. When you offer a document to prove part of your case, another objection is raised. You do not feel that you are being treated fairly. Are you stressed out yet?
This could be you if you were injured on the job and had to represent yourself. If you were to sit down and talk with someone going through one of these ordeals, you would hear the worry in their voice. Eventually, the conversation would transition from the injured worker’s immediate economic and medical concerns to a discussion of whether “the system” is fair. A substantial number of self-represented injured workers feel that the system unfairly favors the employer. Finding the right balance between the interests of employers and their insurance carriers and fairness to self-represented injured workers is hardly a new issue, but it is a persistent one. Debate over it continues more than a century after the first workers’ compensation laws were passed in the United States with the intent of creating a self-executing system of disability and medical benefit payments to injured workers that would eliminate the need for costly litigation. In practice, litigation from the early days of workers’ compensation systems has continued.
Today, the courtroom is where you are most likely to find a public display of the difficulties faced by self-represented injured workers. Unable to hire legal counsel, self-represented injured workers are required to do the same work and observe the same rules as licensed attorneys. This presents multiple opportunities for error that may and probably will negatively affect the outcome of a case.
While most would agree that disputes over workers’ compensations benefits should be resolved in an efficient, fair, and impartial manner, there is disagreement on what it takes to be “efficient, fair, and impartial.” One of the cornerstones of courtroom practice is the application of rules of evidence. These rules are intended to ensure that case outcomes are based upon reliable information. Fairness dictates that those rules should apply equally to both parties. This line of thinking, all things being equal, would be logical, but all things are not equal. A self-represented injured worker will have difficulty following those rules because they are complex and require highly specialized knowledge to navigate. Outcomes will be negatively affected for them by legal technicalities and maneuvering rather than the merits of their case. So how do we reconcile the tension between equally applying court rules to both parties and the fact that injured workers are at a disadvantage because they do not have equal access to legal counsel?
Employers and insurance carriers absolutely have the right to do their due diligence in preparing for trial through discovery requests made by their attorneys, and objections made in the courtroom are inherent to litigation. It is possible to accept this reality and still acknowledge that it represents an imbalance of power and knowledge between the parties to a lawsuit when the injured worker is unrepresented. Addressing this problem, the Tennessee Supreme Court’s Access to Justice Commission observed the following about General Sessions Courts:
There is a growing and accepted school of thought that a judge must be pro-active in seeking and adopting policies and procedures that are friendly to all parties, including those represented by counsel and those representing themselves. Many authorities now recognize, as does the Tennessee Supreme Court, that for a judge to do nothing to address the needs or problems faced by self-represented litigants actually advances injustice and contributes to the loss of respect for the judicial system by a substantial portion of the public.[1]
Their analysis also applies to workers’ compensation systems. If we intend to advance justice and contribute to the public’s confidence in our systems, we should consider whether adequate resources are in place to allow self-represented injured workers to participate in workers’ compensation disputes on a level playing field.
Several states have created “ombudsman programs” to address the needs of self-represented injured workers. Ombudsman programs in Virginia, Tennessee, and Texas represent a spectrum of increasing levels of free assistance to self-represented injured workers. Virginia ombudsmen primarily assist unrepresented parties by providing legal information. This includes explanations of basic workers’ compensation legal terms and principles, the burden of proof required to win at a hearing, and how to obtain medical evidence. Virginia ombudsmen can also help by explaining an unrepresented party’s options and discussing their pros and cons. However, Virginia ombudsman are prohibited from providing legal advice to self-represented parties.
Tennessee’s ombudsman program aids injured workers through a hybrid approach. Prior to filing a lawsuit injured workers can access four non-attorney ombudsmen primarily through a toll-free phoneline or in-person appointment. These non-attorney ombudsmen, like Virginia, provide much-needed help by providing legal information. What distinguishes Tennessee’s program from Virginia’s is that it also includes three “ombudsman attorneys” who are authorized to provide “limited legal advice” to self-represented injured workers without providing representation. This allows Tennessee ombudsman attorneys to help prepare self-represented injured workers for hearings by explaining how they are conducted, what constitutes admissible evidence, and the process for admitting evidence during the hearing. However, ombudsman attorneys are not able to make court appearances with or on behalf of injured workers, communicate with opposing counsel, or advise the injured worker to settle their case.
The Texas Office of Injured Employee Counsel (OIEC) is an excellent example of an ombudsman program that takes the next step into actual courtroom assistance to self-represented injured workers. OIEC’s ombudsmen assist unrepresented injured workers prior to and during proceedings before the Texas Division of Workers’ Compensation (DWC). This function often includes requesting supporting documentation, ensuring all issues are identified, and if possible, helping reach agreements prior to a proceeding. Proceedings at the DWC include mediation, contested case hearings before Administrative Law Judges, and any appeals to the DWC’s Appeals Panel. This closely resembles the role of an advocate as Texas ombudsmen routinely make opening statements, introduce exhibits, conduct direct and redirect examination of the injured worker, and make closing arguments. However, they do not provide legal representation or legal advice because Texas ombudsmen are not licensed attorneys.
States like Virginia, Tennessee, and Texas began these programs because they acknowledged the need to provide more assistance to self-represented injured workers. They also demonstrate that there is no “one size fits all” approach, and we should feel encouraged by the fact that there are a variety of ways to make the system more equitable. Sadly, these states find themselves in the minority as less than half of all states currently operate workers’ compensation specific ombudsman programs.
Before the widespread adoption of workers’ compensation legislation in the United States, President Theodore Roosevelt once said, “The practice of putting the entire burden of loss to life or limb upon the victim or the victim’s family is a form of social injustice . . .” These words are as true today as they were when Roosevelt spoke them. The question that needs to be answered now is whether the failure to provide assistance in a system that requires legal expertise to obtain fair outcomes is putting too much of a burden on the injured workers who have to represent themselves. There is no easy answer. It’s complicated.
James “Jay” Hicks is an ombudsman attorney with the Tennessee Bureau of Workers’ Compensation. He lives in middle Tennessee with his wife, Rachel, and their dog, Tully. You can contact him by email at james.hicks@tn.gov.
[1] “Meeting the Challenges of Self-Represented Litigants: A Bench Book for General Sessions Judges of the State of Tennessee.” 2013, www.tncourts.gov/sites/default/files/docs/final_pro_se_benchbook_-_may_2013.pdf, p. 2.
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