State News : Pennsylvania

MEDIATING THE PENNSYLVANIA WORKERS’ COMPENSATION CLAIM

By Kevin L. Connors, Esquire

Recently attending the ABA Workers’ Compensation Mid-Winter Seminar and Conference, in Chicago, over St. Patrick’s Day no less, and having been a presenter on the panel that addressed “Negotiation and Mediation Techniques:  The Latest Advice, The Latest Literature”, chaired and moderated by the Honorable David Torrey, a Pennsylvania Workers’ Compensation Judge in Pittsburgh, Pennsylvania, of infamous renown to all Pennsylvania Workers’ Compensation practitioners as being a veritable encyclopedia of knowledge concerning workers’ compensation practices, procedures, and training, both nationally and locally, this article will review practical lessons from the ABA panel’s presentation.

Before doing so, it should be noted that this pre-eminent panel consisted of three Workers’ Compensation Judges, the Honorable David Torrey, a Pennsylvania Workers’ Compensation Judge, the Honorable Ellen Lorenzen, a Workers’ Compensation Judge in Tampa, Florida, and Chairman Mike Alvey, chairing the Kentucky Workers’ Compensation Appeal Board.

Claimants were represented on the panel by Richard Johnson, a Workers’ Compensation Practitioner in Chicago, Illinois.

The panel, consisting of veterans of their workers’ compensation systems, provided advice with regard to the successful negotiation of workers’ compensation claims, to include the process of mediating workers’ compensation claims, as well as critiquing the latest thoughts and trends on mediation techniques.

As Pennsylvania practitioners will recognize, mediation has had a growing influence in Pennsylvania since the 1996 adoption of Act 57, allowing parties to settle workers’ compensation claims under Compromise and Release Agreements.

In 2006, the Workers’ Compensation Act was amended, to include provisions for Mandatory Mediation, resulting in mediations being required in all litigated workers’ compensation claims, with the Workers’ Compensation Judge presiding over a litigated workers’ compensation claim being required to refer the Petition being litigated to another Workers’ Compensation Judge, for the Petition to then be mediated, absent the parties proving to the presiding Workers’ Compensation Judge that mediation would be “futile”, with there apparently being some super-secret coded directive issued by authorities reviling disclosure, that “futility”, is/will not be an adequate reason to be excused from Mandatory Mediation.

Obviously, voluntary mediations have also been “in play” since the enactment of Act 57 in 1996, again allowing parties to settle workers’ compensation claims, although voluntary mediations have fallen in disfavor, given the costs associated with the same, with the nascent advent of free mandatory mediations, post-2006, through Bureau dictate.

In the course of enforcing mandatory mediations, the Bureau, in its infinite wisdom, has required all Workers’ Compensation Judges to undergo preliminary training in the skills necessary to mediate workers’ compensation claims, with some degree of success and failure being evidenced across Pennsylvania workers’ compensation judicial benches, as mediations have been embraced by some, and reluctantly undertaken by others.

No less true, mediating litigated cases, whether in the workers’ compensation system, or in any other system, requires a special skill set, and not all possess those skills equally.

As for the panel’s discussion regarding mediating workers’ compensation claims at the ABA Mid-Winter Seminar Conference, there was general agreement among the panel that there are several keys to successful mediations, to include the following:

·         First, both parties must be in agreement that mediation is worthwhile;

·         The litigated claim must be ripe for mediation;

·         The parties must have adequately exchanged sufficient information, through discovery or actual fact-finding, to have a clear understanding as to the issues in dispute, and the issues that would need to be resolved, in order to engage in a successful resolution of the workers’ compensation claim;

·         The parties must remain flexible in the course of attempting to resolve their disputed issues;

·         The parties must be prepared to understand the position held by the opposing party, without engaging in umbrage and incivility;

·         The parties must be clear in their objectives in the course of mediating the workers’ compensation claim;

·         The parties must be clear about their expectations and goals before and during the mediation process;

·         The parties must practice intelligent listening, as well as being internally honest as to the stakes involved;

·         Whether in confidence, or other, both parties must be honest with the mediator, in terms of the procedural, factual, legal, and medical issues involved in the claim;

·         Both parties must be prepared to think about compromise, eliminating unrealistic expectation, as well as the necessity of thinking that the purpose of the mediation is to vanquish the opponent;

·         Both parties must also leave emotions at the mediation door, as it is of no value whatsoever in the throes of mediation; and,

·         No less true, it is critical to “trust” not only the power of the mediation process, but to also revel in the candor and credibility of the mediator as an “agent of reality” to quote the Honorable Susan Cercone, a Workers’ Compensation Judge in Allegheny and Beaver Counties, Pennsylvania.

Privileged to have been a panel presenter with the Honorable David Torrey, we strongly encourage our clients to consider the advantages of mediation, as a testament to risk aversion and claim finality.

ConnorsLaw LLP

Trust us, we just get it!  It is trust well spent!

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.