Utah Labor Commission’s Workers’ Compensation Mediation Program Why is the workers’ compensation mediation program successful? What elements contribute to a win win outcome?

Among the powers given to the Utah Labor Commission by the Legislature upon its creation on July 1, 1917 was: “... Promote the voluntary [italics added] arbitration, mediation, and conciliation of disputes between employers and employees.” [34A (9)] [34A (9)]

When did Mediation Begin at the Commission? Under the Direction of Commissioner Colleen Colton mediations were first conducted in anti-discrimination and wage claim disputes. The Commission, against substantial opposition, initiated workers’ compensation mediations on July 1, 1997.

Why Mediate Workers’ Compensation Disputes? Claimants, employers and carriers seen as benefiting from a win win outcome rather than a win lose outcome at a hearing. Claimants, employers and carriers seen as benefiting from a win win outcome rather than a win lose outcome at a hearing. Claimant & adjuster would be in control of outcome. Claimant & adjuster would be in control of outcome. Resolution of a dispute can occur in a more timely fashion usually before the claimants hearing date. Resolution of a dispute can occur in a more timely fashion usually before the claimants hearing date.

Results after 17 years of Mediations? Over 4,500 claims resolved with an 80% to 85% annual success rate. Over 4,500 claims resolved with an 80% to 85% annual success rate. From January through April 2014, 47 of 58 claims settled (81% resolution rate) with a total value of $1,364,000. From January through April 2014, 47 of 58 claims settled (81% resolution rate) with a total value of $1,364,000. Nature of disputes resolved range from simple medical disputes to complex permanent total disability claims. Nature of disputes resolved range from simple medical disputes to complex permanent total disability claims. Two full-time mediator and two contract mediators available. Two full-time mediator and two contract mediators available.

Mediator’s Obligation to Parties Mediations are conducted pursuant to provisions of Utah Uniform Mediation Act (Title 78B, Chapter 10). Mediations are conducted pursuant to provisions of Utah Uniform Mediation Act (Title 78B, Chapter 10). Strict neutrality is observed. Strict neutrality is observed. Communications are privileged without disclosure. Communications are privileged without disclosure. Any known factual information by mediator related to claim is disclosed. Any known factual information by mediator related to claim is disclosed. Assure the interests of both parties are represented. Assure the interests of both parties are represented. Lay foundation for good faith negotiations, and ownership of outcome. Lay foundation for good faith negotiations, and ownership of outcome.

Presentation of respective positions Claimant: Details surrounding injury, medical needs and indemnity issues. Claimant: Details surrounding injury, medical needs and indemnity issues. –Specific discussion of medical issues: use Form 302 to gather, at no cost, all relevant medical record; obtain bills supporting documentation from treating physician and web, etc. –Present accurate data: AWW, dependents and benefit rates; health insurance information (ERISA plan?); UI and STB/LTD; medicare / Medicaid liens, etc. –General overview of demand (i.e. indemnity and / or medicals). Respondent: Specific presentation of defenses. Respondent: Specific presentation of defenses. –Legal causation: supporting evidence of pre-existing medical conditions; detailed discussion of mechanism of injury; documentation of wages; modified work availability. –Medical causation: proof of temporary exacerbation vs. temporary aggravation; rationale for treatment denials.

The Caucus and Closure Development and presentation of reasonable demand. Development and presentation of reasonable demand. Begin a risk assessment of chances of prevailing at a hearing. Begin a risk assessment of chances of prevailing at a hearing. Negotiate to BATNA. Negotiate to BATNA. Discuss proposed settlement document and legal. Discuss proposed settlement document and legal.

Lincoln on Compromise “Discourage Litigation. Persuade your neighbors to compromise wherever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man.”* *