Monday, November 13, 2006

Articles On Passage of Act 147

Articles on the passage of Act 147 include a release by the Pennsylvania Chamber of Business and Industry and general information. The Chamber release states the changes will speed up the system and reduce the cost of litigation. The legislation will do this primarily by requiring scheduling orders and mediation, tools we have been using effectively in this area for some time.

The mediation provisions of the Act will speed up litigation in areas where mediation was not available before, but in workers' compensation the parties typically have to litigate to gain discovery of the facts of a case. There is no formal pre-hearing discovery procedure.

The parties can mediate at any time, but it is effective only when the parties understand what the evidence, and thus the value, will be. The Act does not require the mandatory mediation conference to be scheduled until thirty days prior to the date closing submissions are due.

I recently mediated a case not yet in litigation. The Employer had a favorable IME they did not act upon. The Claimant requested the mediation to see if the Employer would give a reasonable settlement offer before the Claimant was due to become Medicare eligible in a few months.

The case did not settle. The Claimant did not really consider the risk of termination from the IME because the Employer hadn't filed after receiving the report. The carrier did not want to pay a premium amount, because it had a favorable report in hand. We did not know what the Claimant's treating physician would say.

I brought them within $15k of each other, and the case may settle, but I would be concerned it would be an unjust settlement. Unjust to the Employer, under the present facts (remember, I read the IME). Then again, I didn't see anything from the treating physician.

The bottom line, however, is that there will be more mediation because it works. The parties should expect it and get prepared to request the mediation conference they are entitled to at the earliest reasonable opportunity.

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