Teddy Snyder

Category: Workers Compensation

  • Workers Comp Litigation Guidelines Should Define These Four Settlement Triggers

    Civil litigators tend to observe certain guideposts as mediation triggers, such as the closing of discovery, setting of a trial date, or an order from the court to use mediation.  Because about 95% of civil cases settle before trial, mediation is the norm for almost every area of civil litigation.

    In contrast, many California workers compensation attorneys don’t mediate their cases and are pretty unfamiliar with mediation. Moreover, because a workers compensation case can last literally for the life of the claimant, some practitioners feel no urgency to settle, even though that ratchets up the case value and expenses.

    Instead, certain events should automatically trigger parties to actively pursue settlement.

    The injured worker is 61 years old. Once the injured worker turns 62½, any buy-out of future medical care must include a Medicare Set-Aside.  That MSA could make this case more difficult to settle. It might increase the evaluation more than any party anticipated and for sure will cause delay. Plus, with professional administration, money is no longer under the injured worker’s control. Settle before Medicare becomes a party.

    Indemnity payments reach 70% of the expected total.  Once all the indemnity is paid, there is no reserve to fund any part of the settlement beyond future medical.  This often puts the employer’s side in the position of paying more than they think the case is worth to achieve closure. As for the injured worker, there is little incentive to give up guaranteed medical treatment for life if there is no compensation beyond a sum which may not fully fund future medical needs.  Better practice is to monitor the indemnity payout and aggressively move to settlement before the indemnity reserve is depleted.

    The Date of Injury was more than three years ago.  The employer’s side has many reasons to want to get claims off the books.  This is particularly true for private (non-governmental), self-insured employers who are legally required to pay a bond while the claim is open.  “Old Dog” claims, those that are more than three years from Date Of Injury, deserve special attention.  Widows and widowers receiving death benefits may welcome the opportunity to receive a large cash payment; sometimes they don’t even realize this is an option.  In Pro Per claimants may also favorably respond to a settlement outreach.

    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 communicate?  Going to trial is a risk.  Most people are uncomfortable with the lack of control.  They are happier with a negotiated settlement.

    Time to Call the Mediator
    When events pull one of these triggers, it’s time to get serious about settlement. A mediator can help parties define the pertinent facts and law and efficiently bring the case to resolution.

  • Quarantine Settlements

    You have an opportunity. Right now. While you are working from home. While you are most likely to be able to reach people by telephone and actually engage in a discussion about pending claims.
     

    Look over your file inventory. Which are the claims with high monthly expenses?  What about the old dog claims that have been around forever? Would you like to close that in pro per claim?

    Reach out to parties about settling pending claims. Offer to participate in a remote mediation. Video mediation lets parties negotiate jointly and also in separate caucus rooms without physically leaving their homes.

    In mediation, people need not retreat from their stated negotiation positions, yet confidentially discuss a route to resolution with the mediator.

    Claims are down, right? High unemployment means there are fewer people working and fewer people getting hurt. There are fewer cars on the road. Essential workers must still commute, but the rest of the population is mostly sheltering in place. But then there are those COVID-19 claims. Sickened workers are entitled to coverage. Small businesses are making claims on their business interruption policies. Open roads have encouraged reckless driving, which worsens the outcomes of the inevitable collisions.

    Eventually, there is going to be an uptick in claims. The time to reduce the pending claims inventory is now.

  • The Importance of Facts

    A big part of a mediator’s job is to elicit and isolate relevant facts. Then we can determine points of agreement and disagreement.

    Mediations come in two basic types:
    – Parties agree on the facts but disagree on how to interpret them
    – Parties disagree on the facts

    Facts

    Model 1: We Agree on the Facts, But. . .
    In this common situation, parties may disagree on issues such as:
    – the degree of disability the facts describe
    – the effect of facts pointing to a possible non-industrial cause of disability (apportionment)
    – whether the injured worker could have returned to work under these facts
    For example, in a recent mediation, the injured worker’s attorney obtained a last-minute vocational report to show the injured worker was 100% disabled. But that wasn’t the issue. The employer agreed the injured worker was completely disabled, but contended that the disability was largely caused by non-industrial factors. Mediation was the place to correctly define the issue.

    After isolating the pivotal issues, we can define the maximum and minimum values for each side’s interpretation. Compromise mostly then comes down to narrowing the gap between the dollar demand and offer.

    Model 2: Those Aren’t My Facts!
    When parties are operating on different sets of facts, it’s almost impossible to settle. This situation can arise when parties are not communicating, often due to animosity built up over years. Examples include:
    – Injured Worker has been treating the claimed injury with treaters unknown to the adjuster
    – Injured Worker has treated for conditions which may or may not be related to the claimed injury
    – Injured Worker has made another claim, consideration of which is relevant to resolution of this claim, such as a third-party liability claim for this injury or body part.

    Facts exist, no matter how unfair it may seem to have to learn about them at a late date. In fact, for example, some treater recommended and provided treatment. In fact, a bill remains unpaid for such treatment. The employer can claim that the treatment was not reasonable and necessary or was not for the industrial injury, but the fact is still stubbornly out there.

    Sometimes, revelation of these facts prompts adjournment of the mediation to allow time for collection and sharing of relevant documents. The mediation resumes at a later date. Once mediation participants recognize that a fact exists, they can readjust their viewpoint to see the case as Model 1.

  • Held Hostage by a Torturous Claim? How to Escape

    Do you feel like you and your clients are hostage to a claim that goes on and on? Every treatment request triggers a new round of litigation. The injury happened decades ago, and the disability percentage still has not finalized. The parties are at each other’s throats.

    You can use tips from professional hostage negotiators to free the prisoners of that claim.

    Keep Everyone Calm 
    By definition, kidnappers are making unreasonable demands. The negotiator’s job is to keep everyone calm to work through the process without anyone taking sudden destructive action. 

    Your opponent is a jerk, and your client has a knee-jerk negative reaction to every proposed alternative. Claim litigation can be stressful. The lawyer needs to walk a line between assuring the client of zealous advocacy and being a voice of reason. Near-hysteria can be contagious. So is calm.

    In mediation among contentious parties, the mediator can separate them into separate areas, called caucuses, to block confrontation. The mediator channels messages between parties in a calm, reasoned way.

    Active Listening
    Hostage negotiators are trained to pay attention to the kidnapper, show respect for the kidnapper’s statements, acknowledge receipt of the message, and even read between the lines to figure out the best way to proceed to resolution. You need a mediator who knows how to do these things and can help you do them, too.

    Keep Talking
    Whether people are trying to defuse a hostage situation or settle an injury claim, as long as everyone is still talking, things will keep moving toward resolution. Prepare yourself and other participants coming with you to be patient. Bring snacks and something to do while the mediator is caucusing with other groups. Do not bring children. Confirm no one is carrying a weapon.

    Continue to explore every path toward resolution. More often than you might imagine, an issue emerges that parties were previously unaware of.

    At last. . . 
    The most fraught situations can end in peace when participants control emotions and continue to communicate their needs.

  • Is Mediation Effective in Workers’ Comp?

    Babe Ruth’s lifetime batting average was .342. Studies in states with a history of workers’ compensation mediation suggest your success rate with it is likely to be a whole lot better.

    In Florida, parties must mediate workers’ compensation claims within 130 days of the filing of a petition for benefits. Results for the fiscal year ended June 30, 2013, showed a 74% success rate, defined as partial or complete resolution of the issues.

    The Minnesota Department of Labor and Industry reported that the state’s mediation resolution success rate between June 2007 and September 2008 was never less than 60%. The success rate was 100% in four of those months.

    The Maryland Judiciary’s Mediation and Conflict Resolution Office conducted a study where half of Baltimore’s workers’ compensation filings were referred to mediation. The 2002 report details the results. Measured at various points in the litigation process, the mediated cases were consistently found to conclude more quickly and with less discovery than the control group. For example, 83% of cases in the workers’ compensation mediation group were disposed of before their scheduled trial date, compared with 70% in the control group.

    In 1992, the Dallas Mediation Project reviewed 981 mediated cases. Workers’ compensation, contract disputes and collection cases showed the highest level of resolution—87% of these workers’ compensation cases settled through mediation. Motor vehicle claims settled 85% of the time, and other personal injury claims settled 77% of the time.

    Don’t be afraid to step up to the mediation plate. You might hit a home run.

  • How to Write a Workers Compensation Mediation Brief

    Why do so many advocates stumble when it comes to preparing for mediation? Perhaps the most important thing a lawyer can do to prepare for mediation is to write a brief. Done properly, the process forces the writer to focus and get ready to negotiate. But many people do it wrong, mostly by providing irrelevant and obsolete information and not providing the data necessary to evaluate the claim. This problem is so common, I now instruct parties in my confirmation letter what to include.

    The brief doesn’t have to be fancy. I don’t care if there’s a caption. An email message is fine. What would be helpful would be sub-headings for the categories shown below.

    Transmit the brief at least 7 days in advance of the mediation. This helps everyone prepare, including the mediator. Your brief may prompt a request for a document. Showing up with your brief at mediation wastes participants’ time and money as the mediator reads the brief. Late preparation can raise new questions and sometimes leads to adjournment and a second session to allow time for everyone to get answers.

    Claims professionals, you know the mediation is coming up. Ask your lawyer to provide you a copy of the brief at the same time it is sent to the mediator. This assures you and your advocate are on the same page. You can also monitor the timeliness of the preparation.

    Facts

    The brief should briefly (that’s why it’s called a brief) recite facts such as the dates of injury, affected body parts, and the injured worker’s date of birth.

    Indemnity
    State specifically if indemnity is open. If it is open, what do you think is the correct percentage and dollar amount? If less than 100%, what are the Permanent Disability Advances to date? At what rate are they being paid? Is there any argument about apportionment, overpayments or retro? Do the parties agree on the DOI? If parties disagree on an issue, spell out your position. What does the other party say?

    Medical
    Copies of narrative medical reports (AME, QME, PTP) from the last two years will be very helpful as well as a print-out of medical expense payments for that period.

    Medicare Status
    Is there a current (within the last year) MSA? If so, attach a copy to your brief. If the injured worker is a Medicare enrollee or is at least 62 1/2 years old, get a current MSA report and attach it to your brief. If you are not obtaining an MSA because the injured worker is undocumented or is otherwise ineligible for Medicare, say so in your brief. If you have obtained CMS approval, provide a copy.

    Other Issues
    Are there any other issues to be resolved? Mediations are most successful when parties are able to prepare for negotiation and do not encounter surprise issues.

    Confidentiality
    Indicate if the brief is confidential or is being shared with the other party. You may choose to create two briefs, one for exchange and one confidential.

  • Flavors of Workplace Injuries

    Workplace injury benefits come in many “flavors.” Most California workers are covered by workers compensation, administered by the state. However, federal law provides workplace injury benefits to others.

    A narrow definition, subject to many refinements, of these groups includes:

    • Jones Act- maritime workers
    • Longshore Act- dockworkers
    • Defense Base Act – civilian employees working abroad on a U.S. military base or under contract with the U.S. government for public works or national defense
    • Federal Employers Liability Act- railroad workers

    There are important differences among these laws, including what triggers compensation and available benefits. All workplace injury claims, however, can be resolved through mediation.

  • FOBO Paralysis

    Most of us have seen, and maybe used, the acronym FOMO. It means Fear of Missing Out. FOMO is the fear of making the wrong decision about how to spend your time, particularly after you’ve seen internet stories about others doing better. 

    Negotiation FOBO
    The related condition in negotiation is FOBO, Fear Of Better Options. Fear that there may be a better option prevents negotiators from choosing any option. Seeing reports of great results in other cases, unlikely to be identical, contributes to the situation.

    Some people are “maximizers”; they think they must have the perfect resolution. So they need to consider every single option. The trouble is, too many options leads to indecision. Maximizers include the attorneys who want to pursue every avenue of inquiry regardless of the expense in relation to the likely effect on evaluation of the claim.

    Happier, more successful people are “satisficers”; they know how to recognize an acceptable deal and move on. Satificers aren’t pushovers. They do their homework.  In mediation, they’re the people who have evaluated the claim based on historic data, expert reports, and their own experience. They present cogent, coherent arguments in their mediation brief. They have considered the downside of walking away from a deal though they might consider it barely acceptable.

    To avoid FOBO, negotiators need to prioritize their needs and wants. For most mediation participants, the highest priority is closing the claim with an acceptable outcome. Continuing to litigate means months or years of additional expense and stress. Well-prepared negotiators know the status of the case today and realize that things could get worse in the future.

  • A Mediation Story

    The claim was decades old; indemnity was supposedly fully paid. The carrier hadn’t paid a medical bill in years. The applicant had dismissed her attorney, but continued to pursue the claim.

    The carrier wanted the claim off the books, so they called me. Without prompting, the adjuster disclosed his authority limit to me in an email.

    The applicant, the carrier’s hearing rep, and I met for mediation.

    While there was no question the applicant was disabled, the dispute was whether the disability was industrial. Thankfully, the applicant had a very good alternate form of medical insurance which had been providing and continued to provide full coverage.

    I spent time with the parties separately, allowing each of them to vent about how they had been taken advantage of by the other. Issues were raised, demands and offers exchanged. While remaining neutral, I empathized with both parties, discussing pros and cons. Finally, the hearing rep made what he said was an offer of his full authority.  I showed him my print-out of the email which showed authority for an additional $15,000. 

    He stared at me.  “I have to make a call.” 

    “Let’s make it together,” I said.

    We got on the phone to the adjuster who said the hearing rep was correct. “Mike” (not the real name), I said, “Are you able to take a look at your email to me of [the email date]?”

    “Yes, I see it.”

    “That says your authority is $15,000 more.”

    “Oh, I didn’t have that authority. I never had that authority.” 

    I did NOT say, “Then why did you tell me that’s what you had?”

    Instead, I went to the room where the applicant was waiting and put the hearing rep’s offer on the table.

    “I have to call my spouse.” I left the room to give her some privacy.

    After a little while, the applicant told me her spouse said the offer was an absolute non-starter.

    The hearing rep stated he had to leave for another commitment, and the mediation adjourned without resolution.

    A few days later, the applicant called me to ask if the offer was still open.  I said I would check.

    The case settled by Compromise & Release for the amount of the hearing rep’s offer.

    The Lesson

    Parties sometimes need time to process everything that happened at mediation. They may have learned about new issues or gained new insights about the basis for the opponent’s position. People often have a negative kneejerk reaction to a demand or offer. After some time to cool down, they may be able to understand a different point of view, even if they don’t agree with it.

    Think about why this case settled. What did the applicant gain by being able to talk about the claim with the mediator? What do you think happened between her and her spouse once she got home? What can you conclude about pre-mediation communication between the adjuster and the hearing rep, between the adjuster and the applicant?

    How important is it to have everyone who will participate in making the settlement decision attend the mediation?