Tag Archive for: negotiation

Making Sure Your C&R Is Approved: Itemize Offers to Assure Adequacy

“Let’s see,” I said to the employer’s representative. “After deducting PDAs, the MSA, and attorney fees from this offer, the injured worker will end up owing you money.”

It happens more often than you might imagine. Usually it’s because the defense has forgotten the attorney’s fee. Then they wonder why the offer was rejected. Unless parties are in mediation, negotiation often stops.

Why You Need Adequacy
A settlement must be adequate. A recent case on the issue of settlement adequacy, Alvarenga v. Scope Industries, caught some workers compensation professionals off-guard. The court reversed approval of the settlement because after allowing for attorney fees it was inadequate to fund the MSA. Whether CMS approval of the MSA was sought was irrelevant.

California regulations mandate adequacy:
“The Workers’ Compensation Appeals Board shall inquire into the adequacy of all compromise and release agreements and stipulations with request for award, and may set the matter for hearing to take evidence when necessary to determine whether the agreement should be approved or disapproved, or issue findings and awards.”
8 CCR § 10882 Action on Settlement Agreement

Written Itemization Promotes Settlement
Itemized offers and demands help settle cases. When the PDAs, MSA and attorney fees are itemized in an offer, everyone can see how funds will be disbursed.California law favors written settlement offers. Attorneys must show clients written settlement offers and demands, California Rule of Professional Conduct For Attorneys 3-510, but need only convey oral offers if the attorney thinks the offer is “significant.” Written offers let the recipient easily and accurately convey the information to the ultimate decision-maker.Preparing an offer or demand requires review of indemnity issues, Medicare-eligible expenses, and non-Medicare-eligible expenses. Calculating the settlement parts separately can be an eye-opening exercise. Itemizing can show why the offer or demand is reasonable.

5 Best Benefits of Workers Compensation Mediation

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.

Cannibal Negotiation

Cannibal negotiation refers to a deal where parties figure out how to get money from an entity not at the table.

The term originates from an arrangement where OldCo paid NewCo to keep NewCo’s cheaper, competing product off the market. NewCo is paid for not selling anything. The buyers who need that product have to pay OldCo’s high price. The buyers are being cannibalized.

Honest disagreement can thwart parties’ good intentions to reach a workers compensation settlement. Cannibal negotiations can ethically resolve disputes over the value of future medical benefits.

The first place a true cannibal negotiator should turn is Medi-Cal. Medi-Cal can fill the gap between parties’ valuations and provide a safety net to pay for the injured worker’s health care at no cost to any party. A special needs trust or structured settlement may be needed to keep an applicant eligible for traditional Medi-Cal. Under expanded Medi-Cal, the applicant can receive a settlement of any size without losing eligibility so long as Modified Adjusted Gross Income is under the limit. Caution: home health care and non-emergency medical transportation are not included in expanded Medi-Cal. 

Medicare is the next source a cannibal should think of for a funding entity not at the negotiating table. Medicare is different from Medi-Cal in that the injured worker had to contribute the required number of quarters to achieve eligibility. Also, a Medicare Set-Aside must be depleted before additional funds can be tapped to pay for a claim-related Medicare-eligible expense.

Lastly, the parties may be able to use part of the settlement to fund health insurance premiums for the injured worker. A health insurance agent can provide a quote for Affordable Care Act coverage regardless of the injured worker’s pre-existing condition. A (cannibalized) subsidy may indeed keep the premium cost affordable.

Cannibal negotiators can “prey” on more than one source. Some applicants are “Medi-Medi”, enrolled in both Medicare and Medi-Cal. MSAs should not be tapped until the applicant is eligible for Medicare; for the period up to 30 months before then, Affordable Care Act insurance can provide coverage.

‘Twas the Night before Mediation

(c) Teddy Snyder WCMediator.com

‘Twas the night before mediation
And all through the firm
Not a creature was stirring,
Not even a worm

But then one lawyer
Asleep on a couch
Shot up, hit his head
And said with an “Ouch”

Oh my, I’ve got
That mediation tomorrow
I didn’t do a brief
Much, much to my sorrow

Then what to his exhausted eyes should appear
But WCMediator with news of good cheer

You don’t need it fancy
You don’t need it long
Just give me some clues
So the time’s not spent wrong

Just send me an “e”
It’s all confidential
Tell me the issues
What’s the dollar potential?

With that she was gone
The lawyer banged out a brief
He’d be ready tomorrow
Oh what a relief.

This holiday season
When your time seems too short
Turn to mediation
And stay out of court.

Happy Holidays!

 

Tactics vs. Strategy

Tactics are steps you take to win short term goals on the way to achieving your strategic objective. Sometimes tactical skirmishes distract workers compensation professionals from pursuit of their strategic goal. On the other hand, you can’t reach your strategic objective without well-thought-out tactics.

The Disputed Doctor’s Deposition
Take the case where an attorney insisted that the deposition of the doctor who provided the most recent report had to precede settlement discussions. The problem was that by the time that could happen, all the permanent disability would be paid out. After providing for future medical expense, that would leave no cash for the applicant or the attorney fees, jeopardizing the chance of a future Compromise & Release. When I pointed this out, the parties realized that a tactical victory could prevent achieving the strategic goal. The case C&R’d.

The Tale of the Two Interpreters
I arrived at a recent mediation to find the attorneys at loggerheads because both had ordered an interpreter. Both interpreters were court-certified. I convinced one of the attorneys that agreeing to dismiss the interpreter that attorney’s office had ordered would create a negotiating advantage. In the give-and-take of negotiation, opposing counsel might well feel beholden to make the next concession. Conceding the interpreter battle demonstrated the attorney’s reasonableness and set the stage for a productive mediation. The case C&R’d.

A litigation plan should be more than a checklist. Every tactic should further the effort to achieve the strategic goal.

WHY YOUR WORKERS COMP CLAIM EVALUATION IS WRONG

Contradictory dynamics involving life expectancy affect your large-exposure workers compensation claim evaluations. The industrial injury plus co-morbidities may decrease the injured worker’s life expectancy. But medical advances and heredity may mean your estimate of the injured worker’s life expectancy is too low.
The Mortality Table Isn’t the Whole Story
Parties typically use a mortality table to compute the likely cost of future medical care over an injured worker’s lifetime. Several entities publish summaries of life expectancy data. The longer a person lives, the longer their life expectancy. A table might predict that the average 35-year old black male will not live past his 72nd birthday. But once that same man survives to his 55th birthday, the table extends that prediction to 76. The life expectancy prediction is a moving target, growing longer as the injured worker ages. Workers compensation professionals who rely solely on a mortality table to project life expectancy may be making a mistake.Why the Life Expectancy Estimate Is Too Low
Many circumstances can affect how an individual’s life expectancy compares to the average. An important factor is heredity, but many workers compensation professionals do not ask about this issue. How old are the injured worker’s parents, or how old were they when they died? 

Then there’s this interesting phenomenon. A study showed that for adults over 40 years old, receipt of a periodic payment such as a bi-weekly disability check increased their life expectancy. People literally lived for the check. An injured worker may be on the long end of the life expectancy bell-shaped curve.

Add to all of this advances in medical science. People are living longer, and some mortality tables are out-of-date.

These factors require workers compensation professionals to think twice before assuming the injured worker’s life expectancy is shorter than normal. To avoid stair-step reserving, one needs to approach the issue cautiously.

Why the Life Expectancy Estimate Is Too High
On the other hand, an injured worker by definition has some disability, and it might shorten life expectancy. An orthopedic injury in itself may not shorten life expectancy, but pain medication can. A holistic evaluation of lifetime medical care should consider co-morbidities as well as the industrial injury.

One More Thing to Talk About
In settlement negotiations parties may differ about how an injured worker’s life expectancy projection affects case evaluation. Add this to the list of issues to be discussed at mediation.