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CHAPTER 4-200 - INFORMAL CONFERENCES

1. Purpose and Scope. This Chapter establishes guidelines and procedures for scheduling and conducting informal conferences for the purpose of resolving contested issues. The Claims Examiner Informal Conference Skills Self Study Guide, also provides guidance on conducting informal conferences.

2. Authority. Section 702.311 of the regulations, 20 C.F.R. section 702.311, empowers the DD, or their designees (CEs), to resolve disputes with respect to claims in a manner designed to protect the rights of the parties and also to resolve such disputes at the earliest practicable date through informal conferences. In addition, sections 702.312 to .316 of the regulations establish certain rules for the conduct of informal conferences.

3. Applicability. It has been determined that the holding of an informal conference is discretionary on the part of the DD, Matthews v. Jeffboat, Inc., 18 BRBS 185 (1986). Informal conferences are held in contested cases which cannot be resolved on the basis of the written record, or through phone calls or letters. The purpose of a conference is to amicably dispose of controversies whenever possible, to narrow the outstanding issues, and to simplify subsequent proceedings. Informal conferences have proven successful in resolving the large majority of contested cases, and, even in those instances where all the issues have not been resolved, they have established their value by narrowing the issues, thus simplifying the formal hearing procedure. However, when the DD determines that a conference will not assist in the informal resolution of disputed issues or would not help in narrowing the issues, a case may be referred to the OALJ without the holding of a conference.

4. Parties Involved. The DD or CE, the claimant, the claimant's representative, and the representative of the EC constitute the parties present at an informal conference. Except in unusual circumstances, all parties in interest should be present and have the authority to resolve the outstanding issues. No other parties should be present at the conference unless the DD or CE considers their presence essential to the proceedings. Members of the DO claims examining staff may be present for training purposes. Any ex parte discussion, interview, telephone call, or other communication does not constitute an informal conference and should not be counted as such for statistical purposes.

5. Scheduling Informal Conferences.

a. How and When Scheduled.

(1) Informal conferences should be scheduled with at least ten days notice to all parties in interest.

(2) Notice is given to the parties in writing by Form LS-141, Notice of Informal Conference (Exhibit 13, PM 10-200). The original of this form is always retained in the case file. Sections 702.313 and 702.321(b)(1)(i) of the regulations require the issues to be listed on this form. Therefore, Form LS-141, or a brief cover letter accompanying it, must identify the issues to be discussed. The parties should also be advised to notify each other and the DO if additional issues are to be discussed at the conference. Form LS-141 should also identify any additional evidence needed to resolve the issues listed.

(3) Conferences may be scheduled with less than ten days notice if, prior to the scheduling, the parties agree.

(4) Conferences may be rescheduled at the request of one or both parties for good cause; however, rescheduling as a practice should be discouraged and should be kept to an absolute minimum.

(5) If permanency or death is to be an issue at the conference, care should be taken in scheduling the conference since a complete section 8(f) application must be submitted at that time. In such cases the DD or CE should allow sufficient time for the EC to gather the information necessary for a complete application. (See PM 6-201.5.)

(6) The receipt of the conference request and the scheduling of a conference, as well as any rescheduling, are required Diary Actions. If a conference request is received and the case is not in posture for a conference, the request should not be entered in the LCMS. The request should be clearly marked to show that the case is not in posture and this is the reason for not entering it in the LCMS. If the request is entered in error, the request code may simply be deleted or code cnfp (Conference postponed/cancelled) can be entered to stop the 45-day clock while developing the case. However, the file must be documented to show that the code is being entered to correct the initial mistake in entering the conference request.

Once development has been completed, the claims examiner can schedule the conference and document the file that the case is now in posture and therefore it is being scheduled. The rcqr code (Request for conference received) would be entered at this time. It is also proper for a claims examiner to schedule an informal conference without a formal request from any of the parties if the facts justify the scheduling. The claims examiner should enter the rcqr code and document the file to show why the conference was being scheduled. During accountability reviews, the reviewers will look for explanations in the file to determine if a deficiency has occurred. Deficiencies may be avoided by proper posting of the file. The LCMS can also be used to generate Form LS-141.

b. Priority in Scheduling.

(1) Generally, conferences should be scheduled as soon as possible after receiving a request from one or both of the parties in interest, but no later than thirty days after receipt of such a request, except when travel restrictions make such scheduling impossible. Controverted cases should be scheduled within thirty days of the receipt of Form LS-207, Notice of Controversion (Exhibit 20, PM 10-200).

(2) Priority in scheduling conferences should be given to those cases in which there exists an immediate need for medical treatment and/or compensation. Often requests for immediate conferences are received via a telephone call from the claimant or the claimant's representative. The DD or CE should attempt to schedule a conference as soon as the DO's schedule permits, and at a time convenient to all of the parties. In such cases, scheduling can be accomplished by telephone followed by the mailing of Form LS-141.

(3) In cases involving final disposition of schedule losses under section 8(c)(1)-(20) of the Act, a conference may be scheduled up to ninety days after receipt of a request from one of the parties, thus allowing more time for maximum medical improvement to be reached.

(4) In cases involving a claim for benefits under section 8(c)(21) of the Act, it is advisable to wait until the claimant has reached maximum medical improvement, has completed vocational rehabilitation, and is seeking work or has actually returned to work for some period of time. In cases in which the claimant has not returned to work, a conference should be scheduled within thirty days of receipt of a request or when the DD or CE determines a conference would be productive.

(5) Conferences requested in cases subject to section 8(c)(23) of the Act should not be scheduled until the claimant has reached maximum medical improvement and sufficient factual and medical evidence have been submitted to allow a recommendation to be made. (See PM 2-203.)

(6) Conferences on death cases should be scheduled within sixty days of receipt of a request or of the controversion of the claim. They may be scheduled sooner, but only if it is recognized that an earlier conference will be productive.

6. Preparing for Informal Conferences.

a. Pre-Conference Preparation.

(1) Prior to the conference, the DD or CE should review and become familiar with the compensation case file and the issues to be resolved. In complicated cases, it is usually desirable to outline the issues to be discussed, questions to be asked, or specific areas to be developed. The files must be properly documented to show what attempts were made to dispose of issues through telephone calls, correspondence, or personal interviews prior to the conference being scheduled. It is only required that reasonable, not excessive, case development be done. For example, it is reasonable to request medical reports and other relevant information prior to a conference so that the conference will produce a meaningful result. The parties should also be encouraged to exchange information. Telephone calls to the parties under some, but not all, circumstances may also be appropriate. It is recognized that there are situations where some parties will not meet or discuss the matter prior to a conference. If this situation exists, it should be noted in the file so that it can be taken into consideration during an accountability review. If an office is not able to produce meaningful recommendations after a conference, or if multiple conferences are being scheduled on the same issues, better pre-conference development should be considered.

(2) On the day prior to the conference, it is often desirable to call the parties to remind them of the conference the following day. The parties may have forgotten that a conference is scheduled, or they may not have received Form LS-141.

(3) In reviewing the compensation case file prior to the conference, it should be determined if the imposition of any penalties under sections 14 or 30 or interest on late payments may be appropriate at the time of discussion of the other issues at the conference.

b. Optional Pre-Conference Preparation. The following optional procedure may be used by the DO, and may be effective in reducing an excessive number of informal conferences:

(1) With the mailing of Form LS-141, a request for the parties' position on the issues of the case may also be made. This can be done in a short narrative letter sent with Form LS-141. The EC should be advised that if permanency is known or at issue, a section 8(f) application is due on the date of the informal conference.

(2) This letter should accompany the notice of conference when the claimant is represented. Although the claimant may not be represented, the letter may still be sent to the EC.

(3) This procedure is designed to induce the parties to focus on the issues, to identify those issues on which there is agreement or disagreement, and to summarize their positions. The EC should be asked to summarize payments made to the date of submission of the form. If a conference is necessary, the use of this optional procedure insures that the parties are fully acquainted with, and prepared to discuss the issues, thus reducing the time required to hold the conference.

(4) The DO can take one or more of the following actions upon receipt of the completed form or statement:

(a) Issue a recommendation.

(b) Refer the injured employee for an impartial medical evaluation.

(c) Issue a formal compensation order based on the stipulations of all parties or at the request of one of the parties. (For additional information on the issuance of compensation orders, see PM 4-400.12.)

(d) Request additional information that will be necessary to resolve the dispute.

(e) Hold the informal conference as scheduled.

7. Conducting Informal Conferences.

a. Conferences should be kept informal, and shall not be stenographically recorded nor shall sworn testimony be taken. It is the responsibility of the DD or CE conducting the conference to guide the discussion toward achieving the ultimate purpose of such a conference which is to amicably resolve the issues in dispute. The DD or CE conducting the conference should also provide the parties in interest with the benefit of the DD's or CE's special knowledge, experience, and expertise.

b. Conferences should be kept as short as possible, consistent with the goal of narrowing and resolving the issues in controversy. This can be achieved by directing the initial phase of the conference, immediately after the parties have stated their positions, toward those areas which are not in issue and by obtaining oral or written stipulations. Attention can then be focused on the areas in controversy.

c. If the claimant is unrepresented, care should be taken to insure that the claimant's rights are fully protected. If indicated, the purpose of the proceeding should be fully explained and any questions the claimant may have should be answered. The claimant should not be permitted to leave the conference until he or she fully understands what has transpired and what will happen next, e.g., a compensation order will be issued, a recommendation will be issued, or a formal hearing will be necessary, etc. However, the DD or CE is an adjudicator and not the claimant's legal advisor. If the facts of a particular case are such that it is obvious that the claimant needs legal assistance, the claimant may be referred to the local bar association or legal aid society or may be given a list of the attorneys the district office maintains who represent claimants in the district office's jurisdiction. Nevertheless, it is the responsibility of the DD or CE to explain the portions of the Act relevant to the case in question.

d. If a Claimant, who was previously unrepresented, appears with an attorney or other representative, he or she should be requested to comply with the provisions of 20 C.F.R. section 702.131, by filing a notice of representation. The attorney or other representative should be instructed that any fee request must be submitted for approval pursuant to 20 C.F.R. section 702.132. (See LHWCA MEMO 40, July 25, 1975.)

e. At the conclusion of a conference, the DD or CE may advise the parties that additional time will be allowed, not to exceed thirty days, for the submission of additional reports or document and that if no additional reports or documents are received, a recommendation will be issued based upon the evidence contained in the administrative file. The due date for the section 8(f) application should be established if permanency was not previously known or at issue.

f. In evaluating the evidence to make a recommendation the DD or CE must apply the presumptions contained in section 20 of the Act, where appropriate.

g. The Diary Action must be updated to reflect the action taken to resolve the conference request, i.e., conference held, conference postponed/canceled, conference rescheduled, or conference request resolved without conference.

8. Memorandum of Informal Conference.

a. At the conclusion of an informal conference, the DD or CE shall prepare and release a memorandum of informal conference. Form LS-280, Memorandum of Conference (Exhibit 37, PM 10-200) shall be used unless a narrative format is necessary because of unusual circumstances or for extended comments.

b. The memorandum of informal conference must be released within ten calendar days after the conclusion. However, there may be circumstances where recommendations cannot be issued within ten days. Such cases may include those in which additional information is required following some unforeseen developments at the conference, or when an impartial medical examination is required. In such cases, an interim memorandum of conference is to be released within ten calendar days which specifies the action(s) to be taken. A call-up should be placed on the case file for a period not to exceed three weeks, by which time the additional evidence or information should have been received, allowing a final recommendation to be issued. In extraordinary circumstances, more time may be allowed for the submission of evidence or information. In such cases, a brief narrative letter should be released advising the parties of the day by which the additional evidence must be submitted. The parties should also be advised that if no additional evidence is submitted, a recommendation will be released based upon the evidence contained in the administrative file.

c. The original Form LS-280 or narrative conference memorandum should be retained in the compensation file. Copies should be sent by regular mail to all parties in interest. Form LS-280 is to be typed.

d. When the LS-280 is sent to the parties, the LCMS Diary Action is to be updated.

e. The recommendation must address all the issues raised at the informal conference. It must cite the evidence of record and/or the case law which forms the basis of the recommendation.

f. If payments were delayed or late, the conference memorandum must include a recommendation for any additional compensation due under section 14(e) of the Act, and interest at the rate specified by 28 U.S.C. section 1961. (See PM 8-201 for more information on interest.)

9. Conclusion With Agreement.

a. Agreement. If, after the informal conference, all parties in interest agree to dispose of the disputed issues and the agreed disposition is deemed equitable by the DD or CE, Form LS-280 or narrative memorandum shall be released embodying the agreed disposition.

b. Compensation Order Requested. If any party in interest requests that the agreed disposition be embodied in a compensation order, the order should be prepared, within thirty days of the agreement, for signature by the DD.

c. Copy Distribution. The DD serves copies of the signed order on all parties, via certified mail, on the same day the order is filed. To fulfill the requirement for proof of service, Form LS-19a, Certificate of Filing and Service (Exhibit 7, PM 10-200) will accompany the compensation order.

d. Call-Up Following Order. All cases in which a compensation order is entered should be placed on a twenty-one day call-up for the purpose of determining if payment was made within the time limitations imposed by section 14(f) of the Act. If payment was not received within ten calendar days of the date the order was filed and served, the case must be referred to the DD for the imposition of the 20% additional compensation as required by section 14(f). (See PM 8-203.)

e. Call-Up Following Agreement. If disposition was made by way of an informal recommendation, the case should be placed on a twenty day call-up to await submission of Form LS-206, Payment of Compensation Without Award (Exhibit 19, PM 10-200) or Form LS-208, Notice of Final Payment or Suspension of Compensation Payments (Exhibit 21, PM 10-200). If the EC begins paying compensation, the LCMS should be updated to reflect that the case is in compensation status.

f. Penalty - Section 14(e). If payment is not received within fourteen days following the release of the conference memorandum, a determination must be made regarding the imposition of a 10% penalty pursuant to section 14(e) of the Act. Payment of this additional amount, if appropriate, may be directed by the CE. (See PM 8-202.)

10. Conclusion Without Agreement.

a. Issues Not Resolved. When it becomes apparent that the conference will not result in the resolution of all issues, the conference should be promptly concluded.

b. Records. A memorandum of conference should be prepared utilizing Form LS-280 (Exhibit 37, PM 10-200) unless a narrative format is essential. Notwithstanding the disagreement of the parties, it should conclude with an affirmative recommendation on all issues raised at the conference. The recommendation should not suggest that the parties get together to explore an agreed settlement.

c. Distribution. A copy of the memorandum of conference should be sent to all parties via certified mail, retaining the original in the administrative file. The parties should be advised that they have fourteen calendar days to accept or reject the recommendation. Form LS-18, Pre-Hearing Statement (Exhibit 5, PM 10-200) should be enclosed so that the parties can request a formal hearing.

d. Call-Up. Following the issuance of the memorandum of conference, a three week call-up is placed on the file. If the recommendation is accepted, this will allow sufficient time for the submission of Forms LS-206, LS-208, or (if the recommendation is rejected) Form LS-207, Notice of Controversion or its equivalent (Exhibits 19, 21, 20, PM 10-200).

e. Referral for Formal Hearing. If the recommendation is rejected in full or in part by any of the parties and the DD determines that further conferences would be unproductive, the case should be referred to the Office of Administrative Law Judges (OALJ) for a formal hearing. Please refer to PM 4-600 for instructions on the proper procedure for the referral to the OALJ.

11. Telephone Conferences (Optional). Informal conferences may also be held by telephone at the discretion of the claims examiner. The following guidelines are provided to determine whether a telephone conference should be scheduled:

a. The claims examiner should usually approve a telephone conference when:

(1) Both parties request or agree to the conference by telephone.

(2) Travel is an issue for the injured worker, e.g., cost, transportation, disability, other.

(3) Time sensitive or critical issues are at stake, e.g., modification of award, medical issues.

(4) Travel will significantly interrupt the claimant's treatment, training, or work schedule.

b. The claims examiner should usually disapprove a telephone conference when:

(1) Either party requests a face-to-face meeting.

(2) Continued entitlement is questioned, e.g., signature verification is needed on an LS-200 or LS-267.

(3) Anyone expresses concerns regarding privacy in the telephone conference format, i.e., no way to know who is listening in.

(4) Either party has a history or abusing the informal conference process (especially in the telephonic format).

The above guidelines may be changed in individual cases based on previous experience. The claims examiner may also consider other variables in evaluating a request for a telephone conference and may also schedule a conference on his/her own volition.

Pattern of abuses of informal conferences process should be reported to National Office.