In the April 2023 issue of Lex & Verum, Judge Thomas Wyatt from Tennessee raises the question of applying (or not applying) the rules of evidence in workers’ compensation proceedings. In this Essay, we broaden and build on Judge Wyatt’s comments and ask whether one could construct a set of model evidentiary rules specifically for the workers’ compensation context. We offer some general thoughts on what these model rules might look like as well as some next steps for such a project.
Traditionally, most workers’ compensation courts have not applied the rules of evidence to their proceedings. A number of jurisdictions, however, have chosen to impose the rules of evidence, often with modification, including Alabama, Colorado, Georgia, Montana, Rhode Island, and Tennessee, among others.
The problem with imposing the traditional rules of evidence (even if modified) in the workers’ compensation setting is that they are not a particularly good fit. First, workers’ compensation hearings are bench trials, whereas traditional evidence rules involve admissibility rules. Admissibility rules presume a bifurcated system with a gatekeeper (the judge), who screens the evidence, and a factfinder (the jury), which weighs only the screened evidence. In a workers’ compensation hearing, however, the judge occupies both gatekeeper and factfinder roles, making admissibility rules somewhat anomalous. Logically, “there is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate for himself.” And practically speaking, psychological studies have shown consistently that humans have trouble “unringing the bell” after hearing inadmissible evidence. A fused gatekeeper-factfinder situation thus ideally requires a different approach.
Second, traditional evidence rules are complex, in part because they were designed for use by trained attorneys, not laypersons. By contrast, as Judge Wyatt notes, in a significant number of workers’ compensation hearings the claimants are self-represented. Unrepresented claimants typically struggle with complex evidentiary rules, creating a barrier to access as well as administration problems for judges.
The conventional alternative to the rules of evidence, which is a system of “free proof” with little or no evidentiary restrictions, does not necessarily fare any better. As psychological researchers have long shown us, human decision making is fallible, and even the most experienced and well-intentioned decision makers can still benefit from evidentiary strictures. Evidentiary rules also promote consistency across adjudicators, contributing to fairness and the rule of law.
Workers’ compensation courts therefore face something of a “Goldilocks” problem. The traditional rules of evidence are ill-fitting and unrealistic for the forum. Yet, abandoning the rules arguably takes things too far. Is there some practical middle ground? Could we, for example, tailor a set of evidentiary rules specifically for the workers’ compensation context? And if so, what would those rules look like?
A Preliminary Proposal
In a discussion this past January, Tennessee judges showed interest in developing (or at least thinking about) a set of model evidentiary rules for workers’ compensation proceedings. We would like to broaden this conversation and open a discussion among the workers’ compensation judiciary across jurisdictions. The three of us are evidence professors, each bringing a different perspective on the project to the table. Ed Cheng has long worked with the Tennessee Court of Workers Compensation Claims on evidentiary issues, which in part prompted this project. Much of his scholarly work is on expert evidence, which is an important and contentious part of evidentiary practice in workers’ compensation cases. Henry Wang’s prior scholarship focuses on modifying evidentiary rules for contexts outside jury trials, such as bench trials and arbitration: and Heidi Liu has experience and expertise in conducting psychological studies to test the effect of evidentiary rule changes.
We would like to propose an informal working group on this topic where we can meet and connect with interested judges, get feedback on the project, understand judicial concerns and priorities, and assess what changes might be administratively or legislatively feasible. An introductory session could be done either in-person or over Zoom.
Some issues that the working group might ultimately consider include:
- Rule simplification. If one were to take the traditional rules of evidence as the baseline, what key modifications or simplifications should be made to adapt them for the workers’ compensation context?
- Starting over. Instead of tweaking the rules of evidence, if one were to start with a blank slate, what evidentiary rules might be desirable?
- Procedural changes. Are there recommended procedures that would help workers’ compensation judges deal with evidentiary issues? For example, since the rules of evidence assume bifurcation between the roles of gatekeeper (judge) and factfinder (jury), can one create an analogous structure in the bench trial context? Have some courts already created such structures?
- Pro se adjustments. What modifications to the rules, if any, should be made with respect to pro se claimants?
- Inference rules. The traditional rules of evidence focus on admissibility, arguably to preserve the decisional autonomy of the jury. In other words, the rules only control what the jury hears, not how the jury thinks. In a bench trial context, should we de-emphasize such admissibility rules in favor of inference rules? Inference rules – much like the damage’s tables used in workers’ compensation – would ensure greater consistency among cases.
Regardless of what direction the working group takes (and there are many possibilities), any implementation effort should carefully measure outcomes before, during and after implementation of the evidentiary changes. A first step would involve direct observation or data collection by court administrators or researchers on the prevalence and frequency of different evidence practices in proceedings. This data collection could use existing practices and processes, such as court transcripts or recordings. Feedback from judges and clerks would also be valuable in laying the groundwork for any evidentiary recommendations.
More broadly, collecting data allows researchers and judges to ensure that any evidentiary modifications advance the desired objectives, such as predictability, simplicity, or fairness. It could also reveal unintended consequences.
How evidentiary rules are formed and sustained in workers’ compensation courts deserves further study and reflection, and we hope that this can be the beginning of an important and fruitful conversation!
 Hess Professor of Law, Vanderbilt University.
 Associate Professor of Law, George Washington University.
 Visiting Professor, Indiana University (Bloomington), Maurer School of Law; Tallahassee Alumni Professor of Law, Florida State University College of Law (starting Summer 2023).
 See 3 Modern Workers Compensation § 306:2 n.6 (listing jurisdictions); see also, e.g., Cal. Lab. Code § 5709 (West) (“No order, decision, award, or rule shall be invalidated because of the admission into the record, and use as proof of any fact in dispute, of any evidence not admissible under the common law or statutory rules of evidence and procedure.”).
 Terry A. Moore, Alabama Workers’ Compensation § 25:7 (2d ed.) (2022) (“[T]he rules of evidence generally applicable to civil actions operate equally in workers’ compensation cases.”).
 Colo. Rev. Stat. Ann. § 8-43-210 (2007).
 Ga. Code Ann. § 34-9-102(e) (2013) (“The rules of evidence pertaining to the trial of civil nonjury cases in the superior courts of Georgia shall be followed unless otherwise provided in this chapter.”).
 Mont. Code Ann. § 39-71-2903 (1987) (“The workers’ compensation judge is bound by common law and statutory rules of evidence.”).
 Rhode Island Workers Compensation Court, Rules of Practice § 2.21 (2013) (“The testimony of all parties and witnesses before a Judge shall be given under oath or affirmation and governed by the Rhode Island Rules of Evidence except as modified by these Rules.”).
 Tenn. Code Ann. § 50-6-239(c)(1) (2022) (“The Tennessee Rules of Evidence and the Tennessee Rules of Civil Procedure shall govern proceedings at all hearings before a workers’ compensation judge unless an alternate procedural or evidentiary rule has been adopted by the administrator.”).
 See Henry Z. Wang, Rethinking Evidentiary Rules in an Age of Bench Trials, 13 U.C. Irvine L. Rev. 263 (2022).
 United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005).
 See Andrew C. Budzinski, Overhauling Rules of Evidence in Pro Se Courts, 56 U. Rich. L. Rev. 1075, 1076 (2022) (“The American civil court is designed for two competing adversaries to face off against one another.”).