A Handbook for Mediation
The Honorable Julie Y. John
Approximately four years ago, the State Board of Workers' Compensation (the "Board") determined that a number of issues that were scheduled for litigation could possibly be resolved between the parties if they had the opportunity to sit across from each other and actually discuss the issues. As is the case with all other courts, the hearing calendars of the Administrative Law Judges were overloaded and backlogged. Mediation of certain issues would not only help the parties resolve the issues between themselves, it would also lessen the load on the judges. Consequently, in the amendments to the Workers' Compensation Act effective, July 1, 1994, an Alternative Dispute Resolution Unit (the "ADR Unit") was established to attempt to resolve certain types of disputes without a hearing.
Over the past few years, the response to mediation has been overwhelming. Currently, the ADR Unit has six (6) full time administrative attorneys/mediators. Additionally, all of the Administrative Law Judges at the Board are trained mediators, as well as other staff from outside the Legal Division.
Why has mediation been so successful? Mediation is an alternative way to resolve disputes without the necessity of a hearing. Mediation is different from litigation and thus, it is not a "you win-you lose" process. Mediation allows the parties to maintain decision making control over a particular dispute and affords the parties an opportunity to resolve a dispute in a way that offers both sides "something" instead of having a judge decide the dispute resulting in a situation where one party wins and the other party loses.
The success of mediation often turns on whether the parties are prepared to mediate. Preparation for the mediation conference involves gathering documents such as medical records, narrative reports, wage information, rehabilitation reports, deposition testimony, etc. and then organizing the information so that it is readily accessible to the parties and mediator during the mediation conference. Although mediation is not a formal hearing and thus, it is not necessary to introduce documentary evidence, documentary evidence can be provided at a mediation as a tool to support your contentions and as an aid to convincing the other side to accept your position on a particular issue. The goal of mediation is to reach a resolution that meets the needs of and addresses the interests of all parties. Consequently, the preparation work done by adjusters and legal counsel can directly lead to the ultimate resolution of the claim.
The purpose of this paper is to provide a resource for use when preparing for and participating in a mediation conference.
A. ISSUES THE BOARD WILL MEDIATE
The Board will generally schedule the following types of issues for mediation:
The common thread in each category is that the claim has been deemed compensable, either by an acceptance of the claim as compensable by the employer/insurer or by the determination of compensability after a full evidentiary hearing. If the claim has not been deemed compensable, any issue which may arise in that claim, including settlement, cannot be mediated at the Board. Additionally, if a medical bill or any medical treatment has been controverted by the employer/insurer, those medical issues cannot be mediated, but instead, must be scheduled for an evidentiary hearing.
B. REQUESTING MEDIATION
There are certain issues where mediation is mandatory and those cases are being automatically sent to the ADR Unit, regardless of what Board forms have been filed. In addition, an issue can be scheduled for mediation by filing a WC-14, by filing a motion for an interlocutory order and requesting mediation, or by filing for a request for a change in physician or additional treatment. When requesting mediation, whatever the method used, an attorney fee contract, similar to Form WC-108 must be filed with the Board prior to the request for mediation or simultaneously with the request. Without an attorney fee contract on file, verifying representation, the matter will not be set for a mediation conference, nor will any other action on the request be taken by the Board.
Below are the recommended forms and procedures to use in requesting mediation for the issues the Board will mediate:
1. Change in Physician or Additional Treatment Request: Complete a Form WC-200(b) providing the name of the current authorized treating physician and the name of the physician to whom a change is requested or with whom additional treatment is requested. Additionally, you must provide a reason(s) for the change of physician. Board Rule 200(b)(1). Do not just submit a WC-200(b) without any documentation to support the request or the objection. Instead, if the argument in support of the request is based on testimony, then attach an affidavit to the WC-200(b) as required by Board Rule 200. Additionally, if the argument refers to documents, medical records or referrals, then ttach a copy of the documents. Board Rule 200(b)(1). Without the documentation, the party requesting the change will not provide a sufficient basis to grant a change or to help the other side understand that a change in treating physician is even necessary.
A copy of the WC-200(b) and the documents attached thereto, must be filed with the Board and a copy served on all parties or their counsel. Board Rule 200(b)(1). Any party objecting to the request for a change in physician shall file an objection on Form WC-200(b) with the Board within 15 days of the date of the certificate of service on the request for change in physician, serving a copy on all parties and their counsel. Again, affidavits and documents must be attached to the objection as specified above. Board Rule 200(b)(1). If there is no hearing pending in a case where a change in physician or additional treatment is requested and the additional treatment has not been controverted, the matter will generally be set for mediation.
In a change of physician mediation, the parties are required to bring certain information to the mediation. First, the employer/insurer must bring a copy of the posted panel of physicians. Second, all of the parties must bring the names of at least three (3) physicians to consider as alternate physicians.
2. Medical Issues: There are generally two methods you can use when requesting the payment of a medical bill: (1) file a WC-14; or (2) file a motion on WC-102(g). The issue of an unpaid medical bill will be sent to the ADR Unit for mediation unless the particular bill(s) has been controverted by the employer/insurer. If the bill(s) has been controverted, a WC-14 must be filed and the case will be sent to the appropriate administrative law judge for an evidentiary hearing.
If the bill(s) has not been controverted you can complete a WC-14 listing the medical bill(s) that remain unpaid and the amounts outstanding. The WC-14 should list the names of the parties and be served on all parties or their counsel. If the medical bills were not attached to the WC-14, a copy should be provided at the mediation for the parties to review.
The second method to use when requesting the payment of outstanding medical bills is to file a Motion on Form WC-102(g) requesting the payment of the medical bill(s) at issue. A copy of the Motion with all supporting documentation must be served on all parties or their counsel. The other party will have 15 days to file a response on Form WC-102(g), again attaching any relevant documentation. The Motion and the response will then be forwarded to the ADR Unit for disposition.
Again, the documentation is crucial at the mediation. It is important to provide a copy of the unpaid medical bill(s) at the mediation. If the parties have copies of the unpaid medical bills, they can be reviewed to determine if the employer/insurer received the bill, if the medical provider failed to properly credit a payment or other circumstances. The employer/insurer should have a print-out of all bills received and paid to date or copies of or check stubs showing payment of all medical bills received to date at the mediation. Usually, with the appropriate documentation, the issue of unpaid medical bills will resolve at mediation. By providing a copy of the unpaid bill(s) and a print-out of all payments, the parties may realize that there was simply a mistake and the issue will resolve.
3. Suitable Employment Issues: There are also two methods to get this issue to mediation. The first method is to complete and file with the Board a WC-14 requesting a hearing for the refusal of the employee to accept suitable light duty employment. The WC-14 should list the names of the parties and their counsel and be served on all parties. The second method is to file a Motion on Form WC-102(g) on the issue of refusal of suitable employment and check the designated space requesting mediation. In either case, the issue will be sent to the ADR Unit for mediation unless a hearing is already pending. If a hearing is already pending on other issues, the file will be sent to that particular administrative law judge.
If the documents supporting your request have not been attached to the WC-14 or the WC-102(g), the documents should be provided at the mediation. The documentation that you would need to prepare for the mediation would include the light duty release signed by the authorized treating physician, a copy of the light duty job description signed by the authorized treating physician, a copy of the job offer to the employer or his attorney and a copy of the WC-240, if one was filed. Additionally, if the employee attempted to return to work, you need to provide the dates the employee returned to work. If the employee is contending he cannot perform the job, you need to supply medical records to support this contention, if possible, or any evidence that the job offered was actually beyond the light duty restrictions.
4. Attorneys' Fees Disputes: The ADR Unit will mediate attorneys' fees disputes only if the parties agree that an attorneys' fee is owing pursuant to O.C.G.A. § 34-9-108 and thus, the only issue is the amount of the fee owing. In this instance, complete and file a WC-14 with the Board, serving all parties or their counsel.
In preparation for the mediation, have a list of the hours worked and the services performed on the particular issue for which attorneys' fee are requested as well as any evidence of unreasonableness. This will provide the parties and the mediator with documentary evidence of the work performed and if that work was necessary and related to the issue.
5. Settlements: Complete a WC-14 stating in the "other" section that a settlement mediation is requested. Make a specific statement on the WC-14 that all parties are in agreement or attach a cover letter stating that all parties are in agreement for Board involvement in the mediation of a settlement of the claim. Without documentation showing that all parties agree to the mediation, the mediation will not be scheduled. Also, the claim must be at least one (1) year old or the mediation cannot be scheduled. The WC-14 should be filed with the Board and served on all parties.
In preparation for the mediation, provide a copy of all documents which will support your respective positions on settlement. The documents could include medical records, life care plans, rehabilitation reports, present value calculations, wage statements, etc. For instance, if the attorney is basing his settlement demand on the reports from the doctor(s) stating that the employee will not be able to return to work, provide a copy of those medical records. This may help the other side understand your position and will also assist the mediator in determining the relative positions and goals of the parties. A case is much more likely to settle if the parties can support their settlement demands with objective documentation.
6. Average Weekly Wage Calculation: Complete a WC-14 indicating that the dispute involves the calculation of the employee's average weekly wage. The WC-14 must be filed with the Board and a copy served on all parties or their counsel.
For use in the mediation, you should gather and provide copies of documentation, such as check stubs, invoices, wage statements, etc. which support your calculation of the correct average weekly wage. That information will be reviewed in the mediation to help establish the correct AWW.
7. Permanent Partial Disability: Complete a WC-14 indicating that the dispute is the amount of PPD owing to the employee. File the WC-14 with the Board and serve a copy on all parties or their counsel.
For use at the mediation conference, provide a copy of the documents such as medical records and medical narratives from the authorized treating physician or other doctors who have treated the employee or evaluated the employee for disability and which support your contention as to the correct PPD rating. Without this documentation, there is no basis to determine what amount, if any, is owing in permanent partial disability benefits.
8. Issues in Catastrophic Claims: Complete a WC-14 indicating all issues that need to be addressed. For example, if there is an issue of housing or attendant care, specifically list the issues. The WC-14 must be filed with the Board and served on all parties or their counsel.
At the mediation, it is crucial to bring all documentation supporting your request or which supports any objection that you may have to a particular issue. In catastrophic cases, the documentation will usually include medical reports, rehabilitation reports, estimates for housing or transportation needs, etc. Also, make arrangements to have all necessary parties in attendance, rehabilitation suppliers or case managers, family, etc.
Since mediation is not ligation, you are not required to submit documentary evidence as suggested above. However, the parties who are prepared and provide relevant documents at the mediation in support of their position are more likely to achieve a positive result from mediation. You will be much more likely to help the other party understand your position and adequately address the interests and needs of your client if you have objective evidence that supports your contentions.
C. THE MEDIATION PROCEDURE
Once it is determined that an issue can be mediated, a Notice of Mediation will be sent to the parties of record, setting forth the date, time and location of the mediation and the issue(s) to be mediated. Board Rule 100(c) gives the ADR Unit and the Board the power to direct parties to attend mediation. Board Rule 100(e) requires the employee and a representative for the employer/insurer, who has authority to resolve all pending issues, to attend the mediation conference. It is not sufficient to have present only legal counsel. Exceptions to the attendance requirement may be granted by the administrative law judge or his/her designee, prior to the scheduled mediation. Failure to attend a noticed mediation could result in the imposition of civil fines and penalties against the party who does not attend. Board Rule 100(f).
One continuance of a scheduled mediation will be granted for cause if all parties agree. The party requesting the continuance must contact the ADR Unit by 4:30 p.m. the day before the scheduled mediation or the continuance will not be granted. Board Rule 100(f). Additionally, if the issues in dispute have been resolved prior to the mediation, the parties must contact the ADR Unit prior to the scheduled mediation date. Any subsequent continuances will be granted only after a conference call with the Judge and will be granted only on strict legal grounds.
All parties of record and their counsel are allowed to participate in the mediation conference. During the mediation conference, the parties will present their respective positions on each issue scheduled for mediation. The mediator is a neutral third party whose role is to facilitate the process, keep the parties focused on the issues, and give the Board's perspective on the law and policy, with the goal of helping the parties reach a resolution. The mediator has no authority to resolve the dispute. In mediation, it is the job of the parties to frame the issues and resolve the dispute.
If the mediation is successful and a resolution is reached, the agreement has the full effect of a notice of award issued subsequent to a full evidentiary hearing. Board Rule 100(c). As such, all parties are expected to be bound by the agreement reached through mediation.
D. POST MEDIATION
Not all mediations will result in a resolution. If there is no resolution, the unresolved issue(s) will be sent to an administrative law judge for a full evidentiary hearing or ruling on a motion. If the mediation involved a request for a change in physician only, the issue will be decided by an administrative law judge without a hearing.
Since issues not resolved by the parties in mediation will be decided by an administrative law judge, it is imperative that all discussions by the parties during the mediation process remain confidential. Discussions in mediation are not admissible as evidence at any subsequent hearing of the case. Thus, any comments made by the parties during the mediation shall not appear in any subsequent communications with an administrative law judge, in a rehabilitation report, letter, brief, subsequent deposition, or as testimony at a hearing.
Although mediation is not litigation, it still requires preparation by the parties for it to be successful. It is important to complete the appropriate forms so that issues can be scheduled for mediation expeditiously. Also, it is extremely important to come to mediation prepared. Proper preparation is the best way, not only to assure success in resolving disputes without the need for litigation, but also to assure that your clients' needs are met quickly and effectively.
Julie Y. John is an administrative law judge for the State Board of Workers'
Compensation. Ms. John received a Bachelor of Science in Business Administration with
high honors from the University of Tennessee. She is a cum laude graduate of the
Cumberland School of Law where she was a member of the Cumberland Law Review and
Chairman of the Cumberland Research Board.