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.
jigsaw bigger

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

venn settlement colors
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.