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Attorney Column: New Mediation Regulations
By David Borneman, Esq.
The South Carolina Workers’ Compensation Commission recently voted unanimously to push forward with a proposed regulation to mandate mediation of certain claims. The proposal stems from an initiative of Commissioner Derrick Williams and a 24-attorney committee established last Fall. The mediation regulation has the stated purpose of resolving disputes without the necessity of a Hearing and allowing parties to resolve disputes in an efficient and cost-effective manner.

The mediation regulation gives a Commissioner the authority to require mediation in any case at their discretion. However, the regulation also makes mediation mandatory in all claims arising under: 1) §42-9-10 [total disability], 2) §42-9-30(21) [back injuries], occupational disease claims, 3) third-party lien reduction claims, 4) contested death claims, 5) mental/mental injury claims, and 6) cases of concurrent jurisdiction under the South Carolina Workers Compensation Act and the Federal Longshore and Harbor Workers’ Compensation Act. Except for the contested death claims, the mandatory mediation would only apply to cases where the employer/carrier admits compensability.

The regulation also targets claims involving multiple workers injured arising out of the same employment regardless of whether the claims are admitted or denied. This is designed to prevent an influx of cases when circumstances (i.e. a plant closing) can result in numerous claims being filed at once.

In addition to the classes of claims above, any party would be able to request mediation through submission of proper forms requesting a Hearing. The opposing party would still be able to object to mediation if the claim does not fit into one of the required classes.

If a claim is subject to mediation, the parties would have 10 days to select a mediator and must proceed with the mediation within 60 days unless the parties agree to a longer period. If the parties cannot agree on a mediator, the Commission will select one from its list of qualified mediators. Costs of mediation would be divided equally between the parties unless otherwise agreed upon or Ordered by the Commission. If the mediation is not successful, the Commissioner originally assigned the claim will maintain jurisdiction until a Hearing can take place on the original issues being mediated.

The mediation regulation is still in its early stages; however, it appears to be garnering support of both the Claimant’s and Defense Bars. The Commission will take comments and hold public forums regarding the regulation before submitting a final version to the Legislature in June 2012. The Legislature will then approve the regulation, deny it, or allow the regulation to take effect without action after 120 days.

The Workers’ Compensation Commission is not alone in moving to shift part of the judicial load to mediation. The South Carolina Supreme Court recently instituted a similar voluntary mediation pilot program to try to facilitate the resolution of issues on appeal from the Workers’ Compensation Commission as early as possible. The pilot program began in the Fall of 2011 and will extend until Fall 2014 when the Court will determine any further necessary action.