On Monday, the South Carolina General Assembly approved new mediation regulations for workers' compensation cases, which will take effect after publication in the State Register. It is anticipated the regulations will become effective on or about June 28, 2013.
The new regulations are mandatory under certain circumstances, spelled out in the regulations, and may be used at the discretion of the parties, or by order of the Commission, in all cases. First, a single Commissioner may order mediation in any case he or she deems appropriate. Under Regulation 67-1801.B, the Commissioner has discretion to order mediation and pick the mediator in any claim. If the Commissioner orders mediation, he or she retains jurisdiction until the issues are resolved, or until the case is ready for trial. The single Commissioner also has discretion to retain jurisdiction of the claim until it is finally closed by the Claims Department.
Second, the parties may request mediation in any case. Under Regulation 67-1803, either party may request mediation when filing for a hearing or in a responsive pleading. If the opposing party objects, the case will be set for a regular hearing and the moving party may request a mediation order at the time of the hearing.
Under Regulation 67-1802.A, mediation is mandatory for all admitted cases involving total disability or lifetime benefits under §42-9-10, and admitted claims alleging total disability for a 50 percent or greater loss of the back under §42-9-30(21). Admitted claims involving occupational diseases, third-party lien reductions, mental/mental injuries* and cases of concurrent jurisdiction with the Federal Longshore and Harbor Workers' Act must also be mediated before a hearing will be set. Further, any contested death claim and any claim involving a mass injury to multiple employees, whether admitted or denied, must be mediated. Finally, pro se claimants are never required to mediate unless they request a mediation order or are specifically ordered to do so by the Commissioner.
*A "mental/mental injury" is a mental or psychiatric injury with no accompanying physical injury.
The parties may choose their own mediator. In the event that the parties cannot agree on a mediator, the Commission will appoint one. The costs of mediation are normally split equally by the parties. It is required that a representative of the carrier, third-party administrator or self-insurer, with authority to mediate or settle the claim, be present during the entire mediation, either in person or telephonically. Mediators/neutrals must be certified and accredited by the South Carolina Bar.
The regulation also lays out time frames for selecting the mediator (within 10 days after all pleadings are filed) and completing the mediation process (within 60 days after all pleadings are filed). The parties may mutually agree to extend the 60-day period for good cause. Any statements or communications made during the mediation are confidential and cannot be disclosed or used as evidence by any party at a subsequent proceeding. Finally, any party required to mediate under the regulation and who fails to do so in good faith may be subject to penalties and fines up to the costs of the entire mediation.