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Industry Insights

Rosil: A Glance at Alternative Dispute Resolution Programs

  • State: California

Labor Code 3201.5 allows for collective bargaining agreements between private employer(s)/labor unions and employees that establish alternative dispute resolution programs that replace parts of the typical workers’ compensation system.

Stephanie Rosil

Stephanie Rosil

Alternative dispute resolution (ADR) programs are designed to deliver benefits to injured workers and resolve disputes more efficiently than if the dispute were to be handled through the Workers’ Compensations Appeals Board. These programs were first allowed in 1993 and have since become increasingly popular in the union sector.

A collective bargaining agreement is advantageous for both injured workers and employers. It limits litigation, ensures prompt medical care, encourages safety and helps facilitate return to work for the employee.

Participants in alternative dispute resolution programs are typically afforded the benefits of an ombudsperson who is trained to assist in managing the workers’ compensation system and the specifics of the particular program. The ombudsperson is an impartial case administrator who assists in filing claims, working out issues with opposing parties, securing medical treatment, settlements and facilitating mediations and arbitrations when necessary. The ombudsperson also serves as the point of contact for both sides of the claim when it is handled under an ADR carve-out agreement. They often ensure that the claims move along without unnecessary delay and to the satisfaction of all the parties involved.

Currently, ADR programs are fully authorized in 10 states: California, Hawaii, Florida, Maryland, Kentucky, Maine, New York, Massachusetts, Minnesota and Pennsylvania. If a case that is subject to ADR is improperly filed at the WCAB, the defendant must get the case dismissed, as the WCAB lacks jurisdiction over a claim falling under an ADR program. In order to do so, you must submit a petition for dismissal with the following documents:

  • A copy of the ADR agreement.
  • A letter of eligibility from the administrative director of the Division of Workers’ Compensation.
  • A copy of the memorandum of understanding.

Once the case is dismissed at the WCAB, all parties must work within the ADR program to administer and resolve the claims. Every ADR program has its own rules, forms, agreed providers and personnel. In order to successfully handle an ADR claim, it is just as important to understand the carve-out program as it would be to understand the Labor Code when handling a workers’ compensation claim.

In my experience, parties communicate much more frequently and openly when a claim is handled under an ADR program versus at the WCAB. Open communication allows for faster resolution of issues than in traditional workers’ compensation claims. Typically, the time to resolve these claims is much less than the time it takes to handle them through the traditional workers’ compensation system. Becoming familiar and knowledgeable with these fast-paced systems can minimize frivolously litigated claims and result in more beneficial resolutions for all parties.

Stephanie Rosil is a partner at Bradford & Barthel’s Ontario office. This entry from Bradford & Barthel's blog appears with permission.

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