Alternatives offered ...Mediation resolves workers' comp disputes

by Russell Greenhagen

for the Business Journal

Workers' compensation is a historical compromise designed to benefit injured workers and employers. The compromise is designed to assist injured workers, regardless of who was at fault.

In this compromise, employers gave up their right to defend an injury claim based on the employee's contributory negligence or assumption of risk. Also, employees gave up the right to get punitive damages and compensation for pain and suffering in certain cases.

The system was designed to be informal, fast and fair. The design was good. However, the process became choked with delay, conflict and controversy. Employers felt the burden of escalating costs. Fraud and abuse led some employers to question legitimate injuries and illnesses.

Employees legitimately disabled by an injury at work sometimes felt neglected by their employers. Employees complained of being lost in the system, or inadequately compensated for their pain and inability to support themselves, or manipulated and cheated by insurance companies.

In response to these problems, the Missouri General Assembly enacted reforms in the 1992 and 1993 sessions that led to the current Dispute Management Unit within the Division of Workers' Compensation.

The statute requires the division to maintain an 800 number for "employees injured on the job to provide information regarding employees' rights." Mo. Rev. Stat. 287.126 (1992). Three information specialists answer an 800 information-request line for employees. Employees may call 800-775-2667 to speak with an information specialist.

Also the division has established a toll-free help line, 888-837-6069, for employers with questions relating to their rights and responsibilities.

The information lines receive more than 3,000 calls per month. Approximately 50 percent of these calls relate to a specific work injury. The information specialists identify some of these calls for referral to the mediators.

In 1993, Senate Bill 251 called upon the division to implement mediation as an alternative dispute resolution process. Mo Rev. Stat. S287.460 (1993). As a result, a mediation unit was established within the central office of the division in January 1995.

This alternative dispute resolution program was developed to mediate disputes arising soon after workplace injuries occurred. The mediators and information specialists are now organized as the Dispute Management Unit.

Also, during that year, the division's adjudication offices included a mediation component in its docketing procedures. The adjudication office mediations are a final attempt to resolve disputes prior to costly depositions and formal hearings.

In the Dispute Management Unit, three attorney mediators provide "a process in which a neutral third party facilitates communications between the parties to promote settlement. A mediator may not impose his own judgment on the issues for that of the parties." Missouri Supreme Court Rule 17.01 (b)(3).

The focus of the unit is early dispute resolution, which includes mediations on medical treatment, temporary benefits and return-to-work issues. Early mediation of compensibility issues is also possible at this stage. Assistance is sometimes provided to division adjudication offices for conference dockets and complex cases.

The process begins with a request from one of the parties. The Dispute Management Unit receives requests for a mediation conference by referral from the information specialists and the division offices. Written requests from employees, employers, insurers and attorneys are also received.

The first step in the mediation process is contact from a mediator, explaining

the process and obtaining scheduling information. Since the process is voluntary, the second step is to contact the other party, explain the process and obtain consent to schedule a mediation. Either a telephone or in-person mediation may be scheduled.

Early in the case, most mediation conferences are conducted by telephone. This has proved to be economical and convenient for parties in diverse geographic locations. It is not necessary for the parties to hire attorneys for these informal and confidential mediation discussions.

If one of the parties does not consent to mediation, the written request for a mediation conference is referred to the appropriate division office for mediation conference docketing with a legal advisor or administrative law judge.

Once a mediation conference call is scheduled, a confirmation letter is sent to all parties. Included with the letter is an Agreement to Mediate form. This agreement ensures the confidentiality of the mediation by providing that neither the mediator nor the participants can be compelled to testify about the mediation or produce any records made during the mediation. The parties are asked to sign the agreement and return it prior to the time of a telemediation.

The usual agenda at the time of the mediation is to begin with a joint session. Each party will make a complete, uninterrupted statement of the issues. Sometimes the dispute is resolved during the opening session. If not, meetings or caucuses with the parties are the next step.

The mediator shuttles back and forth between the caucuses, carrying information and questions, until the issues are resolved. When agreement is reached, the parties sign a Memorandum of Understanding or a proposed Stipulation for Compromise Settlement, depending on the circumstances.

Mediation has proven to be a successful method to resolve differences. By participating in a risk-free environment for airing concerns and addressing expectations, the parties realize time and cost savings. Employee and employer relations improve through this process of focused and confidential exploration of potential risks and resolution options.

The fiscal year 1997 statistics illustrate the typical flow of cases coming to the unit since 1995. In almost one-half of the cases, one party did not consent to the voluntary mediation process. Those cases were referred to the adjudication offices for further proceedings.

Of the mediation and premediation discussions conducted, the parties successfully resolved 95 percent of the issues with mediator assistance. This system has proven highly effective in facilitating communications between the injured worker and the employer.

As Gov. Mel Carnahan stated in his keynote speech to the Labor/Management Conference June 30, 1997, "These resolutions are decreasing the likelihood of an employee filing a claim and are leading to a quicker resolution of disputes in workers' compensation cases."

(The preceding article by Russell Greenhagen, senior mediator, was provided by the Missouri Bar Association.)

INSET CAPTION:

'These resolutions

are decreasing

the likelihood of

an employee filing

a claim.'

Gov. Mel Carnahan[[In-content Ad]]