Teddy Snyder

Category: Settlement

  • How Did You Get To That Number?

    Case evaluation is part art and a lot of math. We’re not talking calculus; we’re talking arithmetic.

    A surprisingly large number of lawyers tell me they’re bad at math. They’re not alone. CNN anchor Chris Cuomo recently got his math corrected by his co-anchor Michaela Pereira while discussing Powerball lottery numbers.
     

    You can’t come up with a realistic evaluation of a Workers Compensation claim if you can’t quantify the component parts: Permanent Disability, Life Pension, and Medicare-eligible and non-Medicare-eligible Future Medical.

    In mediation caucus, when parties give me their offer or demand I often ask, “How did you come up with that number?” I want their best argument that will convince the other side. The first answer I get is often vague, like “We thought it would settle the case.” Workers compensation professionals often neglect running the numbers. Getting parties to see the same numbers moves them to settlement.

    I recently got a call about an offer in a personal injury case. I questioned the plaintiff’s attorney about what he thought this number represented. It didn’t sound right to me. “Did you ask them how they came up with that number?” No, he hadn’t. I suggested the attorney ask opposing counsel that question to allow movement forward toward settlement.

    Random demands and offers are unlikely to settle a claim. Before you assume the other side is being unreasonable or you respond, ask: How Did You Get To That Number?

  • 3 Signals It’s Time to Close the Claim

    Some Workers Compensation Claims seem to have a life of their own. Before you know it, years have passed since the Date of Injury. Here are 3 signals telling you to take a hard look at settling now.
    The Injured Workers is 61 years old.
    Once an injured worker reaches age 62½, any buy-out of future medical care must include a Medicare Set-Aside. (Buy-out of medical benefits for an injured worker already on Medicare also requires a Medicare Set-Aside.) This adds extra work and delay. Sometimes the MSA evaluation changes the parties’ view of the case. Stories abound about how the MSA process has torpedoed a settlement.

    Check your case inventory. If the injured worker is 61 years old, take steps now to close the claim before Medicare becomes a party to the proceedings.

    Litigation has become a way of life
    You’re in court every month. The number of claimed body parts keeps increasing; every treatment request is denied. Everyone mistrusts everyone else, including their own lawyers. Take a deep breath. Step back. This claim has a settlement value. The parties just need help figuring out what it is.

    Trial is Imminent
    Nothing makes people think about settlement more than an upcoming trial date. You’ve lived with these facts for a long time; how can you be sure the judge will see things your way in the limited time available to put on the case?  Often, a judge’s order is just the gateway to even more litigation.

    Going to trial is a risk.  Most people are uncomfortable with the lack of control. They are happier with a negotiated settlement reached through compromise. You won’t get everything your way, but you won’t lose on every issue either. Most importantly, litigation can end.

    Take the First Step
    Approach the other side about scheduling a mediation.  If communication has broken down, contact the mediator first, and let her work on bringing the parties together.

  • ‘Twas the Night before Mediation

    (c) Teddy Snyder SnyderMediations.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 Mediator Snyder 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!

     

  • Understanding Insurance Reserves

     

    Understanding insurance reserves can help settle a claim. A reserve is a pot of money set aside to pay for a specific expense category. Typically, there are separate pots for indemnity, medical and med-legal expenses.

    Sometimes a negotiator finds that a claim can be closed for an amount more than remains in the indemnity and medical reserves. However, part of the settlement can be classified as a med-legal expense. By spending the money from the med-legal reserve, settlement can be achieved while staying within current reserve limits.

  • Ghosts, Goblins and Mediators

    Halloween is just around the corner, a time when people love to be scared. It’s fun, because everyone knows there’s really nothing scary at all.

    Mediation isn’t scary. Yet some claim and legal professionals fear it.

    Fear of losing control
    Adjusters and attorneys know their jobs. They may bristle at the idea of someone else getting involved in the settlement process. Yet, they don’t hesitate to call in other experts.

    Claim and legal professionals retain control in mediation. Only the parties can choose an outcome. The mediator cannot order anyone to take any action. What the mediator can do is help parties define issues, resolve differences, and see new routes to settlement.

    Fear of looking bad
    Some professionals worry that calling in a mediator makes them look like they couldn’t do their job. On the contrary, professionals who use every tool in their arsenal look smart. Referring a claim for mediation can short-cut litigation, saving time and money. This makes you look like someone who knows how to get things done.

    What are you scared of?
    You don’t need a costume, and you don’t need a candy bucket to get started.  Treat yourself to mediation to move that difficult case forward.  Mediation can benefit all parties, and that’s no Halloween trick.

  • Get “In Pro Per” Claims Off The Books

    You know the claims I’m talking about: the really old claims where the Injured Worker is representing himself/herself. Let’s call them “in pro per”s.  Active in pro pers file one court paper after another, causing the insurer or self-insured employer to fund what seems like a never-ending stream of money to send a representative to the Board. The in pro per’s papers may not state a recognizable claim. Pressed for time, the Information and Assistance officer may give the in pro per short shrift.  Defense attorneys with varying degrees of patience usually do, too.

    But what if what the parties really need is a sort of an interpreter, a mediator.

    Mediating an in pro per’s claim demonstrates respect for the in pro per.  The feeling of lack of respect and inability to get heard is often what drives the in pro per to keep summoning the employer to court.

    “Why would I waste time and money on a worthless claim?” you may ask. Because you’re spending time and money now, and mediation is a way to end that endless cycle.

    Sometimes the in pro per has a bona fide complaint, but without professional assistance has not been able to communicate it. The neutral mediator is often able to re-state the concern in a way the parties can address and put past them. The mediator can help each party see the other side’s point of view.

  • HOW POLITICS DRIVES UP THE COST OF YOUR MSA

    For President George W. Bush and Congress to get Medicare Part D drug coverage passed in 2003, they had to make significant concessions to big business, including the drug industry. One of the law’s provisions forbids the government from setting rules for negotiating better drug prices. The “noninterference” section says:

    In order to promote competition . . . the Secretary [of Health and Human Services]:
    (1) may not interfere with the negotiations between drug manufacturers and pharmacies and PDP [Prescription Drug Plan] sponsors; and
    (2) may not require a particular formulary or institute a price structure for the reimbursement of covered part D drugs.
    42 USC 1395w-111(i)

    The result according to a new policy brief from the Carlton University School of Public Policy and Administration is that Medicare Part D plans pay on average 73% more than Medicaid and 80% more than the Veterans Health Administration for brand-name drugs. If Part D plans could negotiate drug costs the way Medicaid and the VA do, savings could reach $16 billion a year.

    The study shows that the average per capita expenditure by Americans for pharmaceuticals is more than double the average of 32 other industrialized nations. Contrary to their publicity, American drug companies do not devote the wealth gained from Part D on new research initiatives. Half of new medical research initiatives come from non-profit entities such as universities. Rather, drug companies have spent their millions in recent years on increased lobbying. If drugs costs decreased, Medicare beneficiaries could expect Part D premiums to also decrease.

    Although private insurers pay Part D medical expenses, workers compensation professionals are painfully aware that anticipated Part D-covered expenses must be included in a Medicare Set-Aside. The increased use and rising cost of pharmaceuticals has torpedoed many a proposed workers compensation buy-out. If the purpose of an MSA is to protect Medicare, why are Part D expenses which are paid by private insurers included in the allocation anyway?

    Casualty insurance companies and the American Association for Justice are big political players. With the 2016 election cycle coming up, now would seem to be the time for their lobbyists to twist some arms to modify the noninterference provision for the benefit of all Americans.

  • If you like it, then you have to put a ring on it.

    If you like it, then you have to put a ring on it. In the mediation context, that means documenting your agreement.


    It’s a good idea to bring a partially completed Compromise & Release form to the mediation.  The document can be completed and signed on the spot. This is efficient and forestalls buyer’s/seller’s remorse (subject to WCAB approval). This would be true for a Stipulation as well.

    Sometimes the parties’ agreement is more limited. Mediations can address narrow issues, such as whether a body part will be considered part of the industrial injury or what was the Average Weekly Wage.  Document that agreement with a Memorandum of Understanding. The mediator can help you make sure to cover all the issues.

  • WHAT TO EXPECT AT MEDIATION

    Mediation remains unfamiliar to most California Workers Compensation professionals. To succeed, you– and your client– need to know what to expect. While all mediations share some similarities, each mediator has a unique style. Here’s what you can expect at one of my mediations.
    We usually start in joint session. The discussion might be limited to the logistical: introductions, bathrooms, lunch, etc.  People get to look each other in the eye.The first real step will be for the Applicant to tell how the injury happened and how things are going now. The purpose of this is to allow catharsis and to build empathy and trust between the injured worker and the mediator. Usually this is in a separate session known as a “caucus,” but if the defense needs to hear this information or wants to ask questions, it might happen while the parties are still in joint session. If the defense has heard the Applicant’s story many times, I may have Applicant do the venting in caucus.

    I usually start negotiations with the Applicant’s side. If there were prior offers and demands, I will review those to make sure we are all at the same starting point. Then comes exploring the positions which support those offers and demands. The parties’ briefs should explain the issues; the more complicated the case, the more important the briefs. Defining issues for the mediator in the brief makes for a more efficient mediation. But the briefs do not limit the number of issues; sometimes new issues emerge in mediation.

    I might speak with one or more attorneys outside the hearing of their clients, for example, to discuss a point of law.  All parties might reconvene to brainstorm solutions to an issue.  If parties are disrespectful of one another, I will stop a joint session.
    In the give and take of numbers, issues will be discussed and swapped.  Cases do not settle without compromise.  Parties should expect give and take to finalize the settlement terms.
    Participants may be surprised by the amount of time spent in caucus with the other side.  As mediator, my job is to give all parties adequate time to express their concerns.   While there are certainly exceptions, a typical workers compensation mediation lasts three to five hours.