Fist of all, if you’re at this point in your workers’ compensation claim where you have to answer this question, congratulations!  You have most likely already had your deposition taken and have been to multiple medical evaluations.  You are now at the settlement stage.  However, there are 2 types of settlement: Stipulations with a Request for Award (Stips) and Compromise and Release (C&R).

Stipulations (a fancy word for “agreements”) with a Request for Award is a settlement that allows for the future medical care associated with your work injuries to remain open.  In other words, the workers’ compensation insurance carrier still has to pay for your medical after you sign the settlement.  In fact, they will be on the hook for it as long as you need it (it’s lifetime medical, but only on the work injury).  However, they can still send treatment requests from your doctor through Utilization Review (UR), which is where they determine to reject or deny a particular treatment based on their determination of the treatment’s “medical necessity.”  In other words, even though the medical care is left open, they can still review it and deny it if they don’t think it’s necessary.  Also, with a Stip settlement you can re-open your case within 5 years from the date of injury if you feel that your work injury has gotten worse and has resulted in new and further disability since the settlement.

The Compromise and Release (C&R) is where the insurance company issues you a tax free lump sum check in exchange for being relieved of liability (taken off the hook) for future medical care associated with the work injury.  In other words, the benefit to you is that you receive all of the settlement money at once, while the benefit to the insurance company is that they no longer have to worry about paying your doctors.  The lump sum check often takes into account the benefits associated with your permanent disability, the estimated cost of your future medical care, and the value of giving up the right to reopen your case.  Lastly, if you are still working at the job you got injured at, the employer most likely will not be agreeable to settling by way of C&R.  The reason is because of you settle by C&R and go to work the next and injure the same body part, they are on the hook again for medical treatment of that body part.  It defeats the purpose of them agreeing to enter into that type of settlement; not having to be liable for the medical care in the future.

Which one you choose is of course ultimately your decision to make.  If you know that you are going to require a lot of medical treatment because of the injury and do not have any other type of insurance, you will probably lean toward leaving the future medical open.  If you do not get a lot of treatment or are getting by without it and don’t anticipate it being a problem in the future, you might want to settle with a C&R.

By RODMAN J MARTIN, esq

Only 11 1/2 More Hours…

You have been through endless medical treatments, been to a QME or AME evaluation, and then a reevaluation, sat through your two hour deposition, dealt with an endlessly frustrating insurance company (even months before you obtained an attorney), been to Oakland for a hearing(s), gone through maybe one or two surgeries and subsequent recoveries, and now you are finally at mediation, a mediation that can at times seem as drawn out and frustrating as all that has been outlined above.  However, don’t get discouraged.  Like anything else you will encounter in the workers’ compensation system, it is important to at least attempt to keep a positive attitude and to keep perspective.

If mediation is something that your attorney has suggested or believes would be a good idea given the facts and circumstances of your case, it’s typically for a good reason.  Sometimes the two sides (you and the insurance company) just cannot agree about anything.  The only thing you can agree on is that you need a third neutral party to come in and assist with communication and finding some common ground to work with.  This third neutral party is called a mediator, and they will be present at the mediation session.  The mediation session is designed to help facilitate settlement of your claim.  Needless to say, this can take hours, and by hours I mean many hours.  That is why it is important to come prepared, mainly for two reasons: 1) So you yourself don’t go crazy (there are only so many cups of coffee you can drink and texts you can send) and 2) So your attorney can effectively put pressure on the other side without major distractions.

If you have been to the Workers’ Comp Board in Oakland, you know how time consuming/boring it can be when attorney’s are negotiating.  Mediation can be like going to the Board, except longer and without the people watching in the lobby.  Like we often tell clients to bring a book or a magazine to the Board, the same goes for mediation.  Feel free to bring books, magazines, even a portable DVD player with headphones (you might get three movies in during a mediation).  If you want to bring snacks/drinks with you feel free to do that also.  And don’t forget to get someone to take care of your kids/pets on the day of mediation, since you could be gone for the day.

One of the reasons behind why the mediation can drag on so long is because the Defense Attorney could count on you getting tired or hungry, and use it leverage in negotiation, counting on you wanting to leave early and settling for a lesser amount than they ultimately would be willing to put on the table if they had to.  That and they bill by the hour, so the longer they are there, the more they get paid.  That’s not a bad thing, that’s just how Defense Attorney’s are compensated.

However, more often than not the mediation takes a long time to complete because there are simply fundamental areas of disagreement over certain issues of your claim that need to be creatively worked through, and that work takes time.  You are not at mediation because you have an easy case.  You are there because your claim is most likely complex or you also are pursuing a civil claim and are attempting what attorney’s call a global settlement.

The most important thing to remember out of all that is put forth above is: be prepared for a long day of mediation, after all, at the end of the day, your claim could very well be resolved, making those twelve hours spent in a conference room or office with your attorney worth it.

Rodman J. Martin