YOU CAN’T SETTLE IF YOU DON’T KNOW THE ISSUES

HOW MANY PIECES ARE THERE TO THE SETTLEMENT PUZZLE?  
Answer:  Probably more than you think.

The more issues there are in a negotiation, the greater the opportunity for give and take across issues. This adds flexibility for parties to shape a settlement acceptable to all. Trading across issues in negotiation is called “logrolling.”Every case has its own unique issues. Here is a partial list, some obvious, some I have seen people miss.

INCOME ISSUES
  • Disability percentage, including whether the disability is caused by an industrial injury
  • Apportionment
  • Applicable Date of Injury
  • Past payments- when were Permanent Disability payments supposed to start? Was the right rate used? Were past payments properly characterized as PD- or should they have been TD, Temporary Disability. Is there a TD overpayment?
  • If Life Pension payments will be due, when should they start?
  • Average Weekly Wage- Have you taken into account overtime and the value of non-cash compensation?
  • Ability to perform future work
  • Return to Work issues- will the employer provide modified work?
  • What about training? Check the new California law about computer purchases.
  • Liens
  • Penalties
MEDICAL ISSUES
  • What are the accepted body parts?
  • What expenses are reasonable and necessary? This can include issues about support services.
  • What is the appropriate medical specialty?
  • Is the treatment the Applicant wants compensable?
  • Is the Applicant’s over-all medical condition likely to shorten life expectancy?

 

5 BEST BENEFITS OF WORKERS COMPENSATION MEDIATION

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1) Mediation Works.  In one study, 61 percent of workers compensation mediations resulted in total resolution of the disputed issues.
2) Mediation is fast- no waiting for a hearing date on an overcrowded court schedule.
3) Take as much time as you need- no rush to finish within a half-day window at the WCAB.
4) Mediation saves time and money compared to numerous, futile court appearances.
5) Presence of the neutral can help preserve the attorney-client relationship and inject a dose of reality.

Settlement Ethics

Ethics are the moral principles that govern behavior. Every workers compensation professional has ethical rules to follow. For attorneys, these are spelled out in Codes of Professional Responsibility, statutes and sometimes case law. Despite some differences among the states, the basic principles governing settlement ethics are mostly the same

Duty to Communicate to the Client
Lawyers must keep clients reasonably informed about significant developments (CA Rule of Professional Conduct 3-500). CA Rule 3-510 tells lawyers to promptly communicate the specifics of a written settlement offer. In other words, a California lawyer need only pass along a verbal settlement offer if the lawyer deems the offer significant. The lesson for negotiators is to make all settlement offers in writing to ensure the client learns about them. The bonus: a written offer avoids confusion about the offer’s terms.

In an unpublished Texas case, Grillo v. Harris Hospital, a former client sued for legal malpractice damages for the alleged failure to communicate a settlement offer. The suit claimed that the attorney’s failure to convey a structured settlement offer resulted in the plaintiff’s loss of public benefits worth millions of dollars. The law firm paid a $1.6M settlement.

Duty of Competence
A lawyer must be competent, defined as having the diligence, learning and skill, and mental, emotional and physical ability to practice (CA Rule of Professional Conduct 3-110). That means the lawyer should be conversant with all the factors impacting settlement, including access to public benefits and tax. If the lawyer is not expert in a subject, the lawyer can notify the client to obtain such an expert.

Duty of Honesty
Lawyers must act honestly in litigation, including settlement negotiations. California Business and Professions Code Section 6068(d) requires an attorney to “employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth…“ Business & Professions Code 6128 imposes misdemeanor criminal liability on a lawyer who intends “to deceive the court or any party.” The maximum penalty is a six-month jail sentence, a fine up to $2,500 or both.

Six Biggest Mediation Misconceptions

The Mediator might rule against me.

Mediators do not make any rulings. The role of the mediator is to help the parties resolve the issues.

If I go to mediation, I will have to give up something.
Negotiation is about compromise. Each side usually gives up something. You won’t give up anything unless you, and only you, make the choice to negotiate a deal.
 
Mediation is too expensive.
Mediation is cheaper than litigation. It is efficient and eliminates other procedures which use up time and money.
 
Mediation is a waste of time.
Mediation has been shown repeatedly to be effective in resolving all issues. But even if you don’t conclude your case at the mediation, mediation typically allows parties to learn more about their opponent’s case—and their own. Issues are narrowed, setting the stage for further negotiation or more efficient litigation.
 
There is no reason to mediate—our case is a sure winner.
Mediation might be a place to test that hypothesis—or convince the other side. Presumably you wouldn’t be in litigation if there weren’t two sides to the story. If there is counsel on both sides, your opponent is spending time, money and effort for a reason. Applicants representing themselves might just need a forum to tell their story. Litigation is always uncertain. Settlement is the only way to retain control over the outcome, rather than let a judge impose a resolution on you.

We look like push-overs by suggesting mediation.
Mediation is the rule rather than the exception in most areas of law in the United States. The fact is that most cases settle at some point. Smart claims professionals and lawyers use every tool at their disposal to conclude cases as early as possible.

Understanding Public Income and Medical Benefits after the Affordable Care Act

acaThere’s a lot more to the Affordable Care Act than buying private health insurance through an exchange marketplace like www.CoveredCA.com.

Four kinds of public benefits can help people get the medical care they need:

  1. Subsidized premiums and co-pays for private health insurance purchased through an exchange.  Commercial insurers issue these policies, not the government.
  2. Medicare, for people who have contributed the necessary number of quarters during their years of employment. Medicare Set-Asides are required when a Medicare beneficiary settles a claim for future medical care.
  3. Expanded Medi-Cal for people with low income; there is no asset limit, no requirement for a set-aside
  4. Traditional Medi-Cal for the indigent; there are income and asset limits, no requirement for a set-aside

These types of benefits are frequently confused, especially because the names are so similar.  For optimal settlement of a Workers Compensation case, you need to know the injured worker’s eligibility for these plans.

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The Elephant in the Room

Sometimes the issues the lawyers and adjusters are discussing are not what is most important to the Applicant.

Recently, in a pretty small case, the professionals told me the disagreements were about what had been paid and what was still due. The injured worker told me his biggest concern was that, although he had returned to modified duty, the employer had told him there was no more work for someone with his disability. The injured worker was terrified that he would be out of a job with no ability to get another one, but that is not what the lawyers were discussing.

Many times, the injured worker’s biggest issue is not one that is dispositive of any issue in the case, but, in fact, is the driver for the injured worker’s decisions– the proverbial elephant in the room the negotiators are trying to ignore.

Because these are often personal matters, the injured worker may not share these concerns with the employer’s side– or even the injured worker’s own lawyer.

  • The woman with a sick teen-aged son who desperately wanted to control her own industrial medical care, but was afraid that if she C&R’d her case, the lump sum payment would result in the family’s loss of Medi-Cal which provided care for the son.
  • The man  suffering from non-industrial cancer whose biggest concern was leaving an estate to support his wife.
  • The injured worker who wanted to return to his home country, but feared that expressing that desire would diminish the value of the claim.
These issues can often be discovered and resolved through mediation. Parties can express their concerns to the mediator confidentially. Once the mediator knows the real issue,  the mediator can often re-frame the issues to allow the parties to reach resolution– all without breaching confidentiality.
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How Mediation Saves Time, Money and Stress

How Mediation Saves Time, Money and Stress

Mediation of Workers Compensation claims is commonplace in some states and mandatory in some. Elsewhere, such as in California, claims professionals and attorneys are still starting to catch on to the benefits of mediation.

Multiple Appearances With Judge Can Accomplish Little

Budget cutbacks and increasing caseloads mean less time for cases to be heard by a workers compensation judge.  The result is multiple appearances which accomplish little.  This costs the employer money for the defense attorney’s fees and consequential costs from the inability to get a ruling.  For the injured worker’s attorney who typically will receive a fixed percentage contingent fee, each appearance without resolution decreases the attorney’s hourly rate of compensation.  The injured worker shares the employer’s frustration with the inability to get a ruling, with consequent stress and depression.  Sometimes this frustration causes the injured worker to seek new counsel with instructions to “be more aggressive.”

In contrast, mediation is as fast and efficient as the parties want it to be.  Mediations can be scheduled for a time and place of the parties’ convenience.   As much time as is necessary can be allocated for the mediation.  The issues to be resolved can be as narrow as definition of the industrial injury or as broad as conclusion of all indemnity, medical and penalty claims.

Mediation Facilitates Communication and Settlement

Mediation focuses the parties’ attention.  This contrasts with a court appearance where an attorney may be juggling appearances in multiple courtrooms.

Mediation can result in settlement when the parties are unable to negotiate a settlement on their own.  The presence of the neutral can facilitate communication.  Typically, parties will be together for some of the mediation and sometimes in separate sessions.  Separate sessions, known as caucuses, allow the mediator to exercise shuttle diplomacy.  Settlement can result even when the parties or attorneys are hostile.

The mediation may be the only opportunity the injured worker gets to tell the story of the injury and treatment.  For many injured workers, relating the narrative allows them to put it in the past and move on, a good result for all concerned.