Settlement of Workers' Compensation Cases with Mediation
Jan. 10, 2022
It seems that every Christmas season (October 15 to December 15) is the time when many insurance companies decide to put on the “hard press” to settle many of their claims in workers’ compensation cases and automobile accident claims. These are the major areas I practice law, so I have many opportunities to settle my client cases during this time.
Settlement of a workers’ compensation case is much different from settling an automobile accident case. I will talk here about the workers’ compensation cases.
Here are some interesting observations:
My clients genuinely like to participate in settlement mediations. A mediation takes place on a designated day at which time the insurance lawyer (via Zoom or in person), an agreed upon lawyer mediator and my client and I appear. The goal is, of course, to settle my client’s claim finally and completely.
It is most important for my client to have finished with at least 90% of his/her medical treatment for their job injuries, leaving only some small amounts of physical therapy to complete their care and achieve MMI (maximum medical improvement).
I do try very hard to spend time with my clients preparing them in advance of the mediation for the event itself. My clients seem to feel that they have some control over the process and the outcome when they can participate with me throughout this mediation day.
They do get a chance to hear what the insurance company says about them and their case. While I do my best to tell my clients about everything that will happen at the settlement mediation, sometimes we hear a surprising view about an issue in their case that we were not expecting.
The key is a sense of control of the outcome that my clients feel. That only happens when you, as the lawyer, properly prepare your client for the event.
The mediator likes to stress that settlement means the client can control their own lives again and not be dependent on the insurance company for weekly payments and medical care. This is a good point!
A settlement mediation does require that my client focuses on their future after workers’ compensation benefits cease. Too many clients, no matter how independent they were before the job injury, seem to become dependent on the weekly benefits from the insurance company. Part of my job is to be a rational counselor. This requires me to explore with my client vocational options, tech schools, furthering their education to work a new job using their brains more than using their backs. I love doing this.
The settlement mediation is an event, the highpoint in one’s job injury case and claim. If there is proper preparation of the medical records, proper and well documented narrative reports from the treating physicians, a functional capacity evaluation that is confirmed by the treating physician that documents my client’s functional limitations, then you have a better opportunity to get a larger sum of money for your client.
Lastly, I do believe my client needs to be able to talk to the mediator, person to person. To let the mediator, know how the injury affected my client’s life, the losses my client has endured not just in money, but career opportunities and employment relationships. Practicing with my clients what they will say to the mediation gives them a genuine chance to affect the mediator and possibly the outcome of their case. While the mediator is a neutral party, if they have an ounce of compassion in their body, they will “feel the pain” of my client which will affect how they speak to the insurance company lawyer.
All in all, participation, presentation, freedom versus dependency, these are but some of the reasons my clients like meditations for the settlement of their workers’ compensation cases.