Current through Register Vol. 35, No. 18, September 24, 2024
A. Mediation of
complaints:
(1) The director's designee, a
mediator, shall evaluate all initial complaints in new cases.
(2) The mediator shall evaluate and mediate
the merits of the complaint for jurisdiction, proper parties, compensability,
the nature and extent of any benefits due the worker, and the strength or
availability of any defenses. A mediator may also evaluate the compliance of
the parties with the mediation rules.
B. Mandatory production:
(1) The purpose of mandatory production is to
ensure that the parties and the mediator have access to all pertinent
information regarding the issues disputed in the complaint.
(2) No later than five days before the
mediation, the parties shall exchange all of the following within the parties'
possession:
(a) medical records, including
unpaid bills;
(b) payroll records,
including average weekly wage calculations;
(c) job description;
(d) witness statements;
(e) documents and correspondence regarding
the initial selection of HCP;
(f)
indemnity and payment ledgers; and
(g) any other documents related to a claim or
defense.
(3) The
documents outlined above need not be produced if they are unrelated to a claim
or defense, were previously produced, or if there is a good faith objection or
privilege.
(4) Parties shall
deliver mandatory production and an exhibits list directly to the mediation
bureau no less than five days before the scheduled mediation conference.
Mandatory production delivered to the mediation bureau shall not be part of the
case record, although parties may file a notice with the clerk indicating
compliance with the rule. Mandatory production shall be destroyed by the WCA
following issuance of the recommended resolution.
C. Mediation conferences:
(1) Responses:
(a) Respondent shall file an informal
response to the complaint not less than five days prior to the mediation
conference.
(b) The response shall
include a statement of facts and affirmative defenses together with a short
summary of reasons for denials of any benefits claimed.
(c) Respondent may file an answer as set
forth in this rule, in lieu of an informal response.
(2) By agreement, and subject to the
mediation bureau calendar, the parties may reschedule a mediation conference to
occur within 75 days of filing the complaint. In doing so, the parties
stipulate to waiving the 60-day requirement for the WCA to issue a recommended
resolution. Requests by the parties to reschedule a conference that is set in
less than five days will only be granted upon demonstration of good cause shown
as determined by the mediation bureau chief.
(3) Mediation conferences shall be held using
an online web platform and/or telephonic conferencing. At least five days
before the scheduled conference, any party may request an in-person mediation
conference. All parties must agree to an in-person mediation conference, or it
must be approved by the director or director's designee. If the mediation
conference is held through an online web platform, the parties will enable and
use video, if available. Recording of mediation conferences is
prohibited.
(4) The mediator may
recommend an amendment to the caption of the complaint to correct an improperly
named party or to reflect the joining of appropriate parties who otherwise have
notice or attended the mediation conference.
(5) Purposes of mediation conferences and
duties of the mediator:
(a) to bring the
parties together and attempt to negotiate or settle disputed issues by
discussing the facts and applicable law pertaining to the complaint and by
suggesting compromises using mediation and other dispute resolution
techniques;
(b) to define,
evaluate, and make recommendations on all issues remaining in
dispute;
(c) to state an opinion of
the strength of any argument or position, and the possible results if the
complaint is tried by a judge;
(d)
to issue a recommended resolution within 60 days of the filing of the complaint
unless waived by the parties;
(e)
to identify all potential parties;
(f) to make a recommendation regarding
attorney's fees; and
(g) to refer
any violation of these rules or the act to the enforcement bureau for
administrative investigation and enforcement, if appropriate.
(6) Parties are encouraged to
communicate before the mediation conference and, if possible, reach a
stipulated agreement, of terms to resolve the complaint. When submitting their
proposed stipulated agreement to the mediation bureau the parties should
utilize the stipulated recommended resolution form provided on the WCA website.
If the stipulated agreement is provided before the mediation conference and is
adopted by the assigned mediator, the mediation conference will be vacated, and
the stipulated recommended resolution will be filed with the clerk of the
court. A scheduled mediation conference can only be vacated at the direction of
the assigned mediator or mediation bureau chief.
(7) Conduct of mediation conferences:
(a) Mediation conferences shall be in the
control of the mediator.
(b) Each
party shall come to the mediation conference prepared to discuss settlement of
the case. Parties will ensure that they are available for the entirety of the
time scheduled for the mediation conference and will ensure that if they are
participating through an online web platform or telephonically that there are
no background distractions.
(c) The
mediator shall be addressed in a courteous and respectful manner by all
parties.
(d) Mediation conferences
are informal meetings with no transcript of the proceedings. No motions
practice shall be allowed. Conferences shall be conducted in a civil, orderly
manner, with all presentation geared towards discussion and negotiation of
disputed issues. Attorneys and other representatives of the parties shall be
attired in an appropriate manner, suitable to a court proceeding.
(e) Employer and attorney, or a
representative if no attorney has entered an appearance, and worker and
attorney, if any, shall attend the mediation conference. If a party fails to
attend a scheduled mediation conference without a reasonable excuse as
determined by the mediator, the mediator may still file a recommended
resolution based upon the information provided by the attending party and
applicable workers' compensation law. If the non-attending party rejects the
recommendation, the assigned workers' compensation judge in the interest of
justice may refer the matter back to mediation.
(f) Appearances by a legal assistant,
paralegal, or other agent or employee of the attorney, in lieu of a personal
appearance by an attorney, are prohibited. This rule does not prohibit the
appearance of an employer through an adjuster or third-party administrator, nor
does it prohibit a worker from attending a mediation conference with the
assistance of an unpaid assistant. The attendance and level of participation of
any other person at the mediation conference is subject to the discretion of
the mediator.
(g) All issues may be
considered at the discretion of the mediator when consistent with the goals of
economy and fairness, and when an opportunity can be granted for additional
response.
(h) The parties are
encouraged to prepare written narratives and summaries to assist the
mediator.
D.
Recommended resolutions:
(1) The mediator
shall file the recommended resolution within 60 days of the filing of the
complaint unless the parties have stipulated to a waiver of the 60-day
requirement and the mediator approves. The mediator may allow additional time
to supplement the file prior to issuance of the recommended
resolution.
(2) The clerk shall
serve a copy of the recommended resolution on parties.
(3) Service on an unregistered party by
certified mail domestic return receipt with a signature and date of receipt
shall create a presumption of receipt of the recommended resolution on the
indicated date. Service through My E-File shall create a presumption of receipt
upon transmission.
(4) An
acceptance or rejection of the recommended resolution must be filed with the
WCA clerk on or before the 30th day after receipt of the recommended
resolution. A rejection shall contain a statement of the party's reasons for
rejecting the recommended resolution.
(5) Effect of recommended resolution:
(a) The recommended resolution and its terms
are not binding and do not reflect an agreement between the parties until all
parties have accepted the recommendation or fail to timely reject the
recommended resolution.
(b) A
rejection in whole or in part of a recommended resolution shall result in
assignment to a judge for a determination of all issues in a formal
hearing.
(c) Once a party has filed
an acceptance or a rejection of a recommended resolution, the party is bound to
the acceptance or rejection, unless permitted to withdraw it by written order
of the director. The party requesting leave to withdraw a previously filed
acceptance or rejection shall submit a written application and proposed order
to the director, reciting good cause, within 30 days following receipt by that
party of the recommended resolution. The clerk may cancel any judge assignment
when a rejection is withdrawn.
(d)
If a rejection appears to be untimely, the clerk shall notify the parties of
the untimeliness. A party requesting that a rejection be considered timely
shall submit a written application to the director and proposed order within 60
days of receipt of the recommended resolution. The application shall state the
grounds to support a finding of excusable neglect.
E. Penalties:
(1) Willful failure or refusal to participate
in the mediation process shall not preclude the issuance of a recommended
resolution, and may constitute bad faith or unfair claims processing.
(2) The assigned mediator, or any party, may
refer any such violation for administrative investigation and enforcement by
the enforcement bureau.
(3) Failure
to comply with the mediation rules, including those requiring mandatory
production of evidence and submission of an informal response five (5) days
prior to the mediation conference, may subject a party or party's
representative to penalties as provided in the Act or the rules of the
WCA.
F. Amendment of
recommended resolution: The recommended resolution may be amended by a mediator
or by the agreement of the parties within the time allowed for acceptance or
rejection of a recommended resolution, which time shall not be expanded or
modified in any way by the issuance of an amended recommended
resolution.
G. A mediator's notes
taken in conducting a mediation conference are confidential, not subject to
discovery, and shall not be admissible as evidence in any legal proceeding. A
mediator may not be called to testify in a workers' compensation or other
proceeding regarding a mediation conference they facilitated.