Risk-Sharing Workers’ Compensation Dispute Resolution Workers’ compensation claims management seems to begin with a general negative tone. Something “bad” happened in order for an employee to be talking to our office – they got hurt. Although the incident and injury are unfortunate, the claims experience does not have to be. When a claim is investigated, we obtain information from the employer, employee, and medical provider(s). We may also request another medical opinion. It is our responsibility to determine whether the injury is compensable under South Dakota Workers’ Compensation statutes. There are times when disagreements are unavoidable. If a claim or portions thereof are denied, the employee has two years to file a Petition for Hearing. This is basically filing a lawsuit, which usually involves attorney representation. Predictably, this process takes a substantial amount of time to resolve issues and may be costly. There is an alternative to filing a petition — the employee may request mediation with the Department of Labor and Regulation. This is a telephone conference with Director Marsh, which may resolve the conflict. If it does not, the only other remedy for the employee is to file a Petition. On July 1, 2006 new law went into effect which is under SDCL 62-2-12 to 62-2-22. This offers a small claims option
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to resolve disputes over medical expenses only where the injury has already been determined to be compensable. An injured employee files the case with the Department of Labor and Regulation (as opposed to the magistrate) and most hearings will be handled telephonically. Like small claims cases in court, the system is designed to be more user-friendly so lawyers are not necessary. And, the process is limited to disputes involving $8,000 or less. The decisions can be appealed to the Secretary of the Department of Labor and Regulation and then to the Circuit and Supreme Courts. When the small claims process became an option in 2006, we weren’t sure what effect it may have on the overall claims handling process. While other employees and insurance carriers may be using this option, we have never been involved in the process so it has not had any impact on the claims handling for SDML WC Fund. More often, we are involved in the final available option to resolve a claim, short of litigating the Petition. This is mediation with an independent mediator. Mediation continues to be a reasonable option which may be requested by either party – the employee or Claims Associates. In nearly all of the cases, both parties are represented by legal counsel; both parties feel they have valid reasons for their positions; and all parties are agreeable to come to the table for a possible compromise. Not all mediations are successful and some claims continue through the hearing process with possible appeals to the South Dakota Supreme Court. Mediation isn’t admissible in court and therefore any discussion or offers for settlement cannot be called into evidence. This protects the process and allows both parties to make their best good faith effort to resolve the claim. Claims Associates, Inc works closely as a team to determine all options for dispute resolution with the assistance of outside legal counsel when necessary. Jennifer Andrisen Selzler SCLA AIC CSRP SDWCS Claims Supervisor, Claims Associates, Inc
SOUTH DAKOTA MUNICIPALITIES
