critter
Junior Member
Posts: 7
Joined: Oct 2004
|
Wednesday May 18, 2005 11:58 PM
|
|
From A Memo for "Insurance Company Defense Attorneys"
"Case Settlement Negotiation Strategies"
Prepared by San Francisco Workers' Compensation Defense Attorneys
Finnegan, Marks and Hampton, July 1995.
Worker's Compensation litigation and case settlement negotiations can be likened to a high stakes game of stud poker. A Worker's Compensation claim is won or lost by combining and manipulating the three proven motivators of the human spirit: fear, hatred and greed.
The initial step in defending or negotiating any workers compensation claim is to arm yourself for the fracas. Nothing can replace comprehensive preparation and knowledge of your file material when preparing for the trial or settlement. It is absolutely imperative that each litigated file have a comprehensive chronological receipt, review and analysis letter with specific goals listed therein. Failure to provide a chronological case summary will result in weakness as you will be always wondering whether the opposing party understands and profits from issues you may have missed.
Every malingering injured worker lives in fear of the truth. The truth only reigns supreme if you are able to prove disputed facts through the subpoena of past employment, litigation and medical records. Receipt and chronological summarization of all past records forms a critical part of the defense bulwark as you then possess hard documentation to refute later misrepresentations by the applicant. Of course, your review of all subpoenaed records will concentrate not only on inconsistencies as presented to the medical providers, but also for signs of personal debt, marital strfie, sickness or criminal activity. Your records review should be almost predatory in nature as you want to uncover any potential weakness of the opposing party while at the same time increasing your strength through knowledge.
The subpoena and summarization of records should be followed by an intensive deposition of the allegedly injured worker. Particular attention should be paid to uncovering applicant's complete past medical, employment, and litigation history. Special attention should be paid to having the applicant specifically define physical restrictions emanating from the injury. Nothing assists the defense posture more than an applicant who lies under oath regarding their past employment history or current physical restrictions.
Subpoena of records and deposition of the injured worker should be followed by sub-rosa investigation if the applicant exhibited malingering streaks at the deposition. Investigation should be supplemented with an interview of any and all alleged witnesses to the accident. Again, you are trying to create a chain of events establishing applicant to lack the inherent honesty most people possess. In effect, you want to create a factual basis for the evaluating physicians to completely discount applicant's subjective complaints.
The final step in preparing your case for trial or resolution is the solicitation of a medical/legal report. The medical referral letter is the cornerstone of any successful defense case. You must not assume that the physicians will take the time to read any of the enclosed medical records. It is imperative that the claims examiner provide the physician with a chronological presentation of the case that blends together all of the medical records, deposition testimony and sub-rosa investigation. The medical referral letter should emphasize any deceit exhibited by the applicant, symptom magnifications or contradictions between subjective complaints of pain and the lack of objective markers of disability as exhibited in the sub-rosa film. Of course, a healthy history of worker's compensation litigation will cause many physicians to discount an applicant's complaints of pain.
Contrary to public opinion, most applicant's attorneys are rather well heeled lawyers who do not enjoy dirtying their hands with deceitful and disgusting clients. One of my goals in defending any workers' compensation claim is to engender dislike of the applicant by opposing counsel. Nothing pleases me more that to watch a major rift develop between an injured worker and the opposing attorney because of my presence in the case. I will first start off by gently reminding opposing counsel that his client is either abusing drugs, using alcohol to excess or abusing his kids or wife. Of course excellent sub-rosa videotape directly contradicting applicant's deposition testimony can serve to undermine the confidence of an applicant's attorney. I always remind opposing counsel of their client's loathsome habits such as inability to hold a job, marital infidelity or disgusting medical problems.
I next desire to create a fear of the injured worker in the mind of opposing counsel. It is imperative that you continually make opposing counsel work and meet with his client. I enjoy filing petitions for change of physician, requests for formal and informal rehabilitation conferences and request for pre-trial conferences. I want as many time-sensitive deadlines to exist as possible in the hope that the opposing counsel will miss a filing deadline. I then remind opposing counsel in no uncertain terms that his client is a highly litigious individual who will be suing him next. Nothing resolves a case faster than a fear of malpractice, The actual negotiation of a claim becomes rather simple once you have comprehensively prepared your case. Opposing counsel should be softened up to the point that the following negotiating tips will result in a beneficial resolution:
Commence settlement negotiations at the lowest possible dollar value. I am never reasonable with opposing counsel. I always start my settlement negotiations based solely on the defense position. To start negotiations at the "mid-point" is to assume that you have a weak case.
Wound your opponent. Do everything legally possible to terminate all sources of income to the injured worker. I do not wish to appear cruel, however a fraudulent workers' compensation applicant is entitled to no sympathy. You must create hunger on the part of the applicant in order to push forward a defense oriented settlement. Accordingly you should notify any employer or self-funded disability carrier that applicant is no longer disabled. You should also make sure that the State Disability benefits are terminated through the provision of defense medical reports to the EDD.
Increase financial pressure on the applicant. Nothing facilitates a settlement more than a whole herd of bill collectors pounding on the applicant's door. Liability for payment of all medical bills should be terminated as soon as legally possible. The provider should then be advised of the termination and advised that they can always turn to the injured worker for payment.
Use vocational rehabilitation as a sword. Many injured workers realize that they can "win the battle and lose the war" if they litigate their claim to the point that they are found a qualified injured worker entitled to vocational rehabilitation. Nothing chills the ardor of an employed applicant more than the prospect of finding himself put in a vocational rehabilitation plan with the goal of becoming a burger flipper. Emphasize the value of their current employment.
Make opposing counsel trade and negotiate for every issue. I suggest inserting copious amounts of boiler plate into your compromise and release that can be traded away.
Always let opposing counsel "see the light at the end of the tunnel" by reminding him or her that a global settlement will enrich them while disposing of a client who is utilizing an inordinate amount of time and effort. You do not want opposing counsel to be so frustrated with the settlement negotiations that he or she simply throws up his or her hands and resorts to trial.
Offer to avoid engaging in a scorched earth policy in exchange for a beneficial settlement. Many applicants are frequently running personal liability, social security disability or state disability claims. Many of these tangential claims can be seriously compromised by the defendants if they choose to send all defense medical reports to the provider of benefits. Defense silence can be worth money.
Utilize present value calculations when calculating compromise and release settlements. Applicants' attorneys are frequently mathematically ignorant and a slow explanation of the theory of present value can result in a significant reduction in payment.
Limit your offer to a specific period of time.
Offer to change the "shape" of money inorder to facilitate recovery of benefits from another source. Injured workers will frequently apply for Social Security Disability income. Social Security will credit any permanent disability recovery that an applicant receives. The law enables you to characterize benefits as payment for settlement of future medical treatment rights and thereby avoid subjecting applicant to the Social Security offset.
Utilize structured settlements.
Keep your eye on vocational rehabilitation. If you are compromising and releasing a claim with an applicant who is enrolled in vocational rehabilitation, you may want to pay some thought to providing 50 percent of this settlement upon issuance of the order approving compromise and release and 50 percent after succesful completion of rehabilitation.
Subsequent Injuries Fund relief. Any case that presents potential permanent disability liability of 70 percent or more must be approached in light of the Subsequent Injuries Fund (S.I.F.). The S.I.F. then contributes to payments to industrially injured workers who came to the work force with a pre-existing disability. This law was passed to encourage employment of disabled individuals. The S.I.F. will only come into play if the combined disability is 70 percent or more and also meets one of the following criteria:
The first disability must have affected a hand, arm, foot, leg, or eye, and the second injury must have affected the opposite member and must rate five percent or more without adjustment for age or occupation or......
Permanent disability from the industrial injury must be 35 percent or more without adjustment of rating for age or occupation.
If we assume that an injured worker's overall permanent disability (combining both pre-existing disability from any source whatsoever and the subsequent industrial injury) rates 90 percent, and the amount attributable to the industrial injury is 40 percent, the Subsequent Injury Fund would pay 50 percent standard disability and would be liable for the life pension. The S.I.F. relief should always come into play in any large loss case.
Copyright ﾩ 2004, California Injured Workers Coalition, Inc. All rights reserved.
-------------------------
ca injured
|
|
