(A) Optional Mediation. The Administrator may, at its sole discretion, require that a disputed determination made by the Administrator be subject to mediation prior to a hearing before the Appeal Board (which is the “independent tribunal” required by Section 12.6(a)(2) of the Compact). Mediation is binding only upon all parties executing a written agreement. The Administrator shall appoint an independent mediator for this purpose.

(B) Request for Appeal Board Hearing. Any employee or dependent who disagrees with a determination made by the Administrator may request a hearing before the Appeal Board. Any employee or dependent must request a hearing before the Appeal Board within fifteen (15) days of receipt of the written decision. Failure of any employee or dependent or request a hearing within the time specified herein renders the Administrator’s decision final and it cannot be heard before the Appeal Board.

(C) Effect of a Request for an Appeal Board Hearing. During the pendency of the action, the employee or dependent shall continue to receive all benefits approved by the Administrator in its original written decision, but shall not receive any new benefits claimed before the Appeal Board. Payments made to claimant during the pendency of the action may not be recouped or recovered by the Administrator or the Tribe, except in cases of fraud.

(D) Hearing Before Appeal Board. If a request for a hearing is made within fifteen (15) days, and the matter is not resolved pursuant to subsection (A) of this section, the matter will be scheduled for a hearing before the full Appeal Board within ninety (90) days of receipt of the request for a hearing from the employee or dependent. The employee or dependent may request in writing one (1) extension of the initial hearing date of up to ninety (90) days, which must be granted by the Appeal Board.

(E) Written Notice of Hearing Date. The Appeal Board shall send a written notice to each party informing them of the hearing date a minimum of thirty (30) days prior to the hearing.

(F) Appointment of Appeal Board. The Tribal Council will appoint three (3) individuals or will designate a third-party independent agency or contractor to act as an Appeal Board to hear any disputes arising under this article and make any necessary final determination relative to compensability of a work injury, medical care or charges, extent of disability, dependency, or any other issue that may arise under this article. The Appeal Board will hear the issue(s) de novo.

(G) Appointment of Karuk Tribal Court as the Appeal Board. Notwithstanding subsection (F) of this section, the Tribal Council may, at its sole discretion, designate the Karuk Tribal Court as the Appeal Board to hear a dispute arising under this article with the same authority as set out in subsection (F) of this section. This designation will be considered on a case-by-case basis to ensure that the Karuk Tribal Court has the capacity to hear these matters. When sitting as the Appeal Board, the Karuk Tribal Court may utilize its own rules of procedure and evidence, except for those areas of procedure and evidence specifically set out in this article, in which instance the procedures and evidence rules of this article will govern.

(H) Conduct of Hearing. The Appeal Board will consider evidence, hear witnesses and receive exhibits in keeping with its goal of making a just final determination.

(I) Standard of Proof. The Appeal Board will weigh the evidence, testimony of witnesses, and exhibits and will make its decision on the basis of the preponderance of evidence and credibility of the evidence and witnesses.

(J) Burden of Proof. The burden of proof in any hearing before the Appeal Board will be on the employee or dependent. A dependent shall at any time upon request furnish the Administrator with proof satisfactory to the Administrator of the nature, amount and extent of the contribution by the employee for such dependent’s support and shall have the burden of proof on such issue in any hearing before the Appeal Board.

(K) Right to Counsel. The employee or dependent may have legal representation at any hearing before the Appeal Board. The cost of representation will be borne by the employee or dependent.

(L) Discovery.

(M) Law to Apply. Any claim brought under this article shall be determined in accordance with Tribal law. California case law may be used as a nonbinding source of guidance, if the Appeal Board so desires. The use of federal or California case law as a source for guidance shall not be deemed or construed as a waiver of the Tribe’s sovereign immunity.

(N) Procedural Rules. The Appeal Board shall comply with any procedural rules governing the adjudication of contested matters arising under this article, which are approved by the Tribe, or if the Tribe has not approved applicable procedural rules, the Appeal Board may apply procedural rules consistent with this article.

(O) Final Decision. A final decision of the Appeal Board shall be made by a majority vote of all Board members. An Appeal Board decision must be issued in writing and copies must be mailed to all interested parties. The written decision shall generally review the evidence and testimony and may compare the merits and evidence or testimony of the opposing parties. The written decision shall state the final determination of the Appeal Board on all issues before it. All written decisions of the Appeal Board are final. No attorney’s fees, costs or punitive damages shall be awarded against the Tribe in such action. There shall be no right to appeal of a final written decision of the Appeal Board. If any party refuses to abide by the final written decision, the other party is authorized to seek enforcement of the written decision in the United States District Court for the Northern District of California or, if the District Court dismisses for lack of jurisdiction, in the courts of the state of California; provided, that the Tribe’s limited consent is strictly restricted and extends only to the jurisdiction of the District Court and the California courts to enforce the terms of the written decision, and shall not extend to any court the jurisdiction to modify or invalidate any of said terms in any manner, or any independent review of the written decision or the underlying dispute. [Res. 19-R-083 § 17, 7/18/2019.]