Michigan Workers’ Compensation Board of Magistrates Implements Scheduling Order Effective January 2015

By: John W. Tomasik

One of the most common complaints regarding workers’ compensation litigation in Michigan is that it takes far too long for a case to resolve. It is not uncommon for a workers’ compensation matter to linger in litigation for two years or more. This opinion is shared by Magistrates, attorneys on both sides of the aisle as well as clients. However, beginning in January 2015, new administrative hearing rules were implemented to address this issue.

The new rules provide for mandatory scheduling conferences, status conferences, and time guidelines, which are similar to civil discovery rules, for all litigated matters. Magistrates will now issue a scheduling order at the pretrial hearing or within 30 days thereafter at a scheduling conference. All parties are required to attend the scheduling conference. The scheduling order includes deadlines for completion of certain activities as a case moves closer to trial, with a trial date scheduled to take place within 18 months of the date the order was issued. Magistrates around the state intend to enforce the scheduling orders as originally entered; however, they may be adjusted to meet the demands of the case, the parties or the Magistrate’s docket.

The new rules also require that a status conference be scheduled within 180 days of the scheduling conference. At the status conference, the attorneys will update the Magistrate on the progress of the matter and make any necessary adjustments to the previously entered scheduling order. It is important to note that the new rule does not prevent the Magistrate and/or the parties from scheduling status hearings before or after the 180 day status conference. In fact, many Magistrates have encouraged the parties to schedule status hearings at least once or twice before and after the 180 day mandatory status conference. The status hearing dates are vital for the Magistrate, as they allow progress of the claim and the disputed issues to be more easily monitored. Status hearings held every 60 to 90 days generally help keep the parties on a track to resolution, illuminate the issues in dispute and/or direct the claim to trial in a timely manner.

The aforementioned changes are significant for both Plaintiff and Defense attorneys. Previously, the Board of Magistrates did not enforce strict timelines regarding the exchange of information during the discovery process, require that Independent Medical and Vocational Evaluations and corresponding depositions be completed by a date certain, or set a firm trial date within the first six months of litigation. Generally, the parties were free to schedule their own Status and Control Dates in 30 to 60 day intervals provided that the Magistrate was available and discovery was largely unregulated. Of course, neither side scheduled medical or vocational evaluations, depositions or any other pretrial activity that would incur cost to their client until they were forced to do so by the Magistrate, which usually occurred 20-22 months after the case had been filed.

Another significant rule change is that the parties are required to attend the scheduling conference or risk summary disposition or dismissal. Previously, the Board of Magistrates did not have authority to dismiss or otherwise adjudicate a matter due to non-attendance in the early stages of litigation. This rule change is likely to resonate with Plaintiff attorneys, since they now must travel to the assigned bureau for the scheduling conference, which can be one to three hours away from their office. Previously, especially early on in a case, Plaintiff attorneys would simply phone in their appearance to the Magistrate or request that Defense counsel schedule the next hearing date on behalf of both parties.

The new Scheduling Order is likely to have the most profound effect upon Plaintiff attorneys. The previously mentioned mandatory hearing attendance provision as well as absolute deadlines for scheduling exams, depositions and trial, will force Plaintiff attorneys to analyze a case in a more thorough manner, since they will be required to spend a large volume of time attending hearings for which they may never see monetary gratification. Furthermore, the stringent deadlines regarding trial prep will force the Plaintiff attorney to spend a significant sum of money much earlier in the process on a matter that may only have “nominal” value. Therefore, it is anticipated that case filings may reflect a slight decrease in 2015 since Plaintiff attorneys may choose to not file suit on a worker’s compensation claim that carries with it only a “nuisance” or “nominal” value. Previously, Plaintiff attorneys would file numerous “nuisance” cases in hopes of the matters sitting on the Magistrate’s docket for upwards of 26 months without spending a dime on trial prep in anticipation of the Defense attorney simply offering to resolve the matter for the “nuisance” value rather than have the employer incur the cost of trial. Under the new rules, Plaintiff attorneys will likely be forced to analyze each worker’s compensation matter that comes across their desk searching only for meritorious claims.

Additionally, the newly implemented scheduling order will no doubt speed up the current timeline for trial since it will have a chilling effect on Plaintiff attorneys filing non-meritorious workers’ compensation lawsuits that currently clog the dockets of the Magistrates.

Regarding enforcement of the new rules, the more populated bureaus such as Pontiac and Detroit are anticipated to have a difficult time keeping the 18 month trial track. There have already been several successful attempts to modify scheduling orders entered less than 60 days prior. However, in less populated bureaus such as Grand Rapids, Kalamazoo, Gaylord, Traverse City, Saginaw and Dimondale, Magistrates are taking a hard line on enforcing the scheduling order as it was initially entered at the scheduling conference.

With the initial cases for which the new scheduling order was implemented in January of 2015, currently pending on firm trial dates in July and August of 2016, it will be quite some time before the effect of the new rules can be measured. However, no matter how the new scheduling order is received by the workers’ compensation community and applied to each case by the Magistrate, it is a major sign of progress to have such an order implemented in the traditionally static world of Michigan workers’ compensation.

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