To: Insurance Carriers and Self-Insured Employers Providing Benefits Under the Workers' Compensation Law, Volunteer Firefighters' Benefit Law and Volunteer Ambulance Workers' Benefit Law; Attorneys and Licensed Representatives Practicing before the Board
Date: December 13, 2002
Workers' Compensation Law § 25(2-b) creates the conciliation process as a way for compensation claims to be handled on a more expeditious and informal basis. Consistent with the provisions of WCL 25(2-b), the Workers' Compensation Board refers claims with disputed issues where the expected duration of benefits is fifty-two weeks or less to the conciliation process. Additionally, claims with disputed medical bills can be referred regardless of the expected duration of benefits.
Upon referral of the claim to the conciliation process, the Board's Senior Attorneys/Conciliators mediate the dispute with the parties in an effort to obtain an agreement resolving the claim. Many times, claim resolution through this process can be accomplished on the documents forwarded by the parties to the Board. In some situations, however, it is necessary to schedule a meeting with the parties to discuss the unresolved issues at one of the Board's hearing locations.
When the parties appear at the scheduled meeting, the Senior Attorney/Conciliator identifies the disputed issues and tries to mediate a resolution. If he/she is successful, the claim is resolved and a decision rendered as provided in WCL 25(2-b). However, if the parties cannot come to an agreement on the disputed issues, the case is referred to the formal hearing calendar for resolution by a Workers' Compensation Law Judge.
The scheduling of the hearing, by necessity, will take a number of weeks. When the case comes before a WCL Judge, the judge will attempt to move the case to resolution, and most often this will require a rescheduling of the case for another hearing for the purpose of collecting evidence which would include the testimony/deposition of various witnesses that are identified by the parties. The rescheduling for that purpose will again require a number of weeks, sometimes subject to the availability of certain witnesses.
In an effort to streamline the process and shorten the time for a resolution of the disputed issues, effective December 23, 2002, the Senior Attorney/Conciliator will no longer simply end the conciliation meeting and refer the case for a hearing when the disputed issues cannot be resolved. Instead, when the parties cannot come to an agreement, the unsuccessful conciliation meeting will be immediately transitioned into a pre-hearing conference. At that time and with the parties still present, the Senior Attorney/Conciliator will ascertain what evidence will be presented on the disputed issue(s), will determine if witnesses and testimony are necessary, and will schedule the case for a hearing or trial or direct depositions, whichever is appropriate. Proceeding in this manner saves valuable time and moves the case more quickly toward a resolution because it eliminates the necessity of these preliminary steps at the first formal hearing in the case.
Consistent with this new procedure, the Board's "Notice of Conciliation Meeting" will be changed to read "Notice of Conciliation Meeting/Pre-Hearing Conference." The new notice, along with explaining the proposed decision process (ECB-2) if the parties reach agreement on all disputed issues, will also advise the parties that "[i]f an agreement cannot be reached on all the outstanding issues, the meeting will be converted to a pre-hearing conference subject to Rule 300.33. At that time, the parties must be prepared to advise the Board of any remaining outstanding issues and witnesses along with their availability." Since a case referred to the conciliation process is not a controverted (C-7) case, a pre-hearing conference statement is not required; however, once the transition is made from a conciliation meeting to the pre-hearing conference, all stipulations concerning any outstanding issues will need to be made in writing. After the pre-hearing conference, the Board will issue its Notice of Decision (EC-23), recording any stipulations and its orders and directions for the resolution of the remaining disputed issues.
The goal of this initiative is to move quickly and seamlessly from the unsuccessful conciliation meeting to the pre-hearing conference so that the time to the resolution of the disputed issue(s) is diminished and the time without benefits to the deserving injured worker is reduced. This can only be done if all parties come to the conciliation meeting fully prepared to delineate issues and work toward a resolution. If a resolution is not forthcoming, then the parties should be fully prepared to proceed with the pre-hearing conference.
Robert R. Snashall