Date: November 24, 2003
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.
In an effort to streamline the conciliation process and shorten the time for a resolution of the disputed issues, the Board announced by Subject No. 046-112 dated December 13, 2002, an initiative whereby if the parties could not come to an agreement at a conciliation meeting, the unsuccessful conciliation meeting would be immediately transitioned into a pre-hearing conference. At that time and with the parties present, the Senior Attorney/Conciliator would ascertain what evidence would be presented on the disputed issue(s), determine if witnesses and testimony were necessary, and schedule the case for a hearing or trial or direct depositions, whichever was appropriate. Transitioning immediately from a meeting into a pre-hearing conference has effectively shortened the time for the resolution of dispute issues.
At this time, the Board is pleased to announce another change in the conciliation meeting procedures: the opportunity to finalize the conciliation decision at the meeting, thereby eliminating the waiting period.
When the parties appear at a conciliation 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). Section 25(2-b) and Board Rule 312.5 provide for a waiting period of thirty days following the issuing of a Proposed Decision during which any of the parties may object to it. If such objection is received in a timely manner, the Proposed Decision is withdrawn and the case continued in a manner appropriate to resolve the outstanding issues.
While Board Rule 312.5(a) allows for finalization of the proposed conciliation decision with the passage of thirty days, it also allows for finalization by signing the proposed decision in the presence of the Senior Attorney/Conciliator: "[I]f the claimant is represented by an attorney or licensed representative, the proposed conciliation decision will become final … when signed in the presence of the conciliator …." If so signed, the decision "shall constitute an award of the board …."
Accordingly, in accordance with Rule 312.5(a), effective July 14, 2003, Senior Attorneys/Conciliators will be able to issue final conciliation decisions without the waiting period in such cases where the claimant is represented by an attorney or licensed representative and where all parties sign the proposed agreement in his/her presence. The parties may use the Board's stipulation form, C-300.5, to record the agreement, or may sign the Senior Attorney/Conciliator's worksheet to indicate agreement.
Consistent with this new procedure, the Board's "Notice of Conciliation Meeting/Pre-Hearing Conference" will contain language indicating that the thirty day waiting period may not apply in claims where written agreements are reached in accordance with Board Rule 312.5(a). For those claims where the agreement is signed, the Board will issue a Notice of Decision (ECB-1). This new Notice of Decision will indicate that the Decision is a result of a written agreement of the parties and that it is final as of the day it is filed by the Board.
The goal of the finalization initiative is to allow the prompt resolution of issues when the parties are in agreement. Such finalization will give each party confidence that the decision is final and will result in the faster payment of the awards and benefits to injured workers. The Board continues to encourage the parties to utilize the conciliation procedure as an effective and efficient means to resolve issues through an informal process.
Jeffrey R. Sweet