Tuesday, July 2, 2013

Mandatory Mediation is here! Are you ready?

SCWCC’s New Mediation Requirements in Effect June 28
While imposing Draconian curfews on me in high school (or so I thought), my parents relied
Post by Mikell Wyman
on an old saying:  “It’s midnight.  Do you know where your kids are?”  Well, the clock struck midnight on June 28, and the South Carolina Workers’ Compensation Commission’s new Mediation Regulation went into effect.  Do you know where your claims are?

The mediation regulation (SC Reg. 67-1801 through -1809) has long been in discussion, and if you’ve kept up with this blog you’ve been “in the know.”  The full text of the regulation can be found here. Everything you need to know about the evolution of this regulation is charted here.  Now the regulation is in full effect applying to any claims currently open with the Commission and any future claims.
By way of quick refresher, the regulation puts forth two ways your claims can get to a required mediation:
  1. It can be ordered in the discretion of a Commissioner; or,
  2. if the claim falls within a defined category requiring mandatory mediation. 
I won’t delve into the details of each of those categories, but I think it helpful to quote the language of the mandatory mediation provision for a list of those categories:
67-1802. Mediation Required with Certain Claims.

A. It is ordered by the Commission that claims arising under Section 42-9-10, or claiming permanent and total disability pursuant to Section 42-9-30 (21), occupational disease cases, third-party lien reduction claims, contested death claims, mental/mental injury claims, and cases of concurrent jurisdiction under the South Carolina Workers’ Compensation Act and the Federal Longshore and Harbor Workers’ Compensation Act must be mediated prior to a hearing.

There are important details and caveats throughout the mediation regulation, but examining those is not the purpose of this blog post.   Rather, this is a reminder that it’s time for all of us to take a look at our open claims and identify those that are required to go to mediation and to identify those that are likely to be ordered to mediation in the discretion of a Commissioner.  Posture those cases for mediation – look for any additional discovery that may be necessary, evaluate your exposure, consider settlement authority, make mediation arrangements for those that are required, reach out to the opposing party on those that may be ordered to mediation by a Commissioner.  There will likely be a rush on mediation dates through the end of the calendar year with all the claims in the Commission’s docket that need to be mediated before they can go to a hearing.  Get a jump on scheduling so that a hearing on your claim isn’t held up by a delay in mediation. 

Just as important, if not more so, take note that many of the Commission’s forms have been modified to take into account this new mediation regulation.  Use of the amended Forms 21, 30, 50, 51, 52, 53, 54, 55, and 58 is now required.  Additionally, the Commission has created a Form 22, Claimant’s Answer to Employer’s Request for Hearing, and a Form 70, Mediator’s Report.  If you operate from an internal database of forms, be sure to update that database.  You can find copies of those amended forms on the Commission’s website here.

Collins & Lacy is pleased to offer workers’ compensation parties the certified and experienced mediating skills of Stan Lacy, Ellen Adams and Jack Griffeth.  Feel free to email Stan, Ellen or Jack directly for your mediation needs. 

If you have questions on either discretionary or mandatory mediations, give us a call at Collins & Lacy.  We’re happy to discuss your open claims and help you decide how to posture them if mediation is a possibility or a requirement.

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