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Mediating a workers’ compensation case

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By Brandon Osterbind

mediating_mainFor several years now, the Virginia Workers’ Compensation Commission has promoted mediation as another means of case resolution. The commission’s system relies on the expertise of the current sitting deputy commissioners who only hear workers’ compensation cases day in and day out.

Workers’ compensation cases are different from many civil suits because the commission quickly resolves initial questions such as whether an injury resulted from an “accident” that “arises out of and in the course of employment.” Once that question is answered affirmatively, then the question turns on what medical treatment is reasonable and necessary, and what work capacity the employee still has. The coemmission can award ongoing benefits such as lifetime medical treatment and limited wage replacement, paid for by the employer. These awards can be changed depending on what circumstances change, and when those changes occur. The parties can litigate these issues, or, at any time, they can decide to mediate them.

Mediation provides the parties the power to resolve their case and mitigate the risk of loss. In order to successfully resolve a workers’ compensation case in mediation, there are several things to consider:

1. What is going to happen in the future?
We are not expected to have a crystal ball. However, if the claimant is expecting a surgery or significant medical treatment in the future, perhaps a settlement is not the best option. Before you can answer that question, you have to consult the medical records and treating healthcare providers to determine future care.

I always tell my clients that I am not a doctor and it is ultimately up to the doctors to say what treatment is reasonably expected in the future. Without that, it is doubtful that the employer will add value to a claimant releasing a lifetime medical award. This should be done prior to any attempt at mediation and the information should be shared with the employer (possibly filed with the commission pursuant to Rule 4.2 of the Rules of the Commission).

When Medicare is involved, the entire process is much more cumbersome and technical. If there is any risk that that future treatment will be covered by Medicare, the attorneys have a duty to make sure that the government’s interest is considered. Without going into detail, you should consult the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide (version 2.9) published on Jan. 4, 2019, by the Centers for Medicare & Medicaid Services.

2. Know what your client is entitled to
In workers’ compensation cases, the damages calculation can be very mechanical. You have to understand the sophisticated nuances of a lifetime medical award, temporary total benefits, temporary partial benefits, permanent total benefits and permanent partial benefits. You also have to know how to account for future medical treatment, cost of living adjustments and what negative actions could limit your client’s future entitlements.

Calculating these items is often a matter of mathematics depending on the information you have to put into the equation. Once you add up all of your client’s past and future entitlements, that is the value of your case less any offsets, credits or risks of losing going forward.

It would be a mistake to not calculate these items prior to mediation. How do you know if you achieve a good result for your client if you do not know what she stands to gain by winning her case? In addition, usually, about halfway through a three-to-four hour mediation, the claim- ant’s attorney will be asked, how are you coming up with that number? If you are unable to substantiate the value behind the claim, then the employer will never cede to your demand.

3. Why settle at all?
Sometimes, a settlement guards against total loss in a case where compensability is contested. In those cases, settlement is always preferred to an adverse judgment. In order for a case like that to successfully resolve, each side has to be willing to guard against an adverse decision. Perhaps each side has good facts and bad facts, but each side has to recognize the possibility of receiving nothing. In those cases, settlement is a much better alternative to nothing.

In other cases, settlement may be facing a reality. For example, where a claimant has received an award and most treatment, the employer may continue to contest treatment, send for independent medical examinations, file motions to suspend benefits, etc. Some employers—knowing they will likely lose—see these rules as opportunities to beat a claimant into submission. Unfortunately, sometimes it works.

An employer may contest everything or little things here and there. Settling the case gives the claimant the opportunity to move on without the disruption of litigation perpetually hanging overhead. But it also puts real money in the claimant’s pocket that can be passed on to a spouse or children given the untimely death of the claimant. All of these are valuable reasons to consider in advising a claimant about a settlement offer.

4. Preparing your client is key
Explaining the workers’ compensation system in Virginia to your client is key. Many people think that non-economic damages are at play in a workers’ compensation mediation. Show your client how you calculate her case value and what the best case scenario is for her. I always advise that, if this is your best case scenario, then you have to be willing to accept less. Accepting less is not a bad thing. Rather, it is a realization of the risk of going forward and not getting everything you think you would win. I have yet to be involved in a case where I have won on every issue, on every point, at every turn.

The entire point of a mediation is to compromise. In order to compromise your position, you will have to give some. Sitting through a mediation, both the attorney and the client have to act like a sponge, taking in information, absorbing it and using it to make good decisions.

I have never feared a failed mediation. Rather, I fear concluding an unsuccessful mediation because either my client or I was unprepared. The best mediations happen as a result of meticulous preparation. Always be prepared.

osterbindBrandon Osterbind,
attorney and co-founder of Osterbind Law PLLC, was born and raised in Richmond. He grew up focused on the practice of law, which led to his attending Liberty University for his undergraduate degree and immediately continuing on to Liberty University School of Law, where he graduated first in his class. After law school, he clerked for the Honorable William G. Petty of the Court of Appeals of Virginia. Today, Osterbind focuses exclusively on helping clients maximize their financial recovery by helping them maximize their physical and emotional recovery after they’ve been injured. His personal injury law firm, which he founded with his wife Kelly, was created with the mission in mind to practice injury law the right way, by keeping the well-being of a client as the top priority.