Mediation, arbitration, negotiation and other ways to secure
work injury benefits without going to court
If you work for a company that has more than 3 employees and are injured on the job in the state of Georgia, then you may have the right to medical treatment and indemnity benefits (lost wages). You also may have the right to a permanent partial impairment rating once you reach maximum medical improvement.
What you do NOT have a right to is a settlement of your workers’ compensation claim. However, working with an attorney can help an injured worker get a settlement for their injuries.
How workers’ comp settlements differ from personal injury
One common misconception about workers’ compensation is that the trials are the same as those on television shows, or like the ones we read about in the newspaper or online.
For example, there was a story regarding a jury in Columbus, Georgia that returned a $280 million verdict for a family that died as a result of an 18-wheeler trucking accident. There are also reports of states settling with pharmaceutical companies for billions of dollars per judge’s orders.
Judges in a workers’ compensation case, however, cannot award a settlement to an injured worker. In fact, administrative law judges in a workers’ compensation case can only award past due benefits to an injured worker, continuing benefits, recommencement of benefits, issues relating to medical care, and penalties or assessed attorney’s fees.
An example of this occurs when an insurance carrier attempts to force the injured worker to return to work in a light duty capacity. Prior to the return to work, the injured worker was receiving temporary total disability benefits because the authorized treating physician had either taken them totally out of work or the employer couldn’t accommodate their work restrictions. The authorized treating physician completes a WC-240(a) form and signs off on a specific light duty job.
At this point, the injured worker returns to work for 3 days but cannot continue because of the pain. By law, the insurance carrier is required to recommence benefits. Sometimes this happens as it should, but sometimes the carrier doesn’t commence benefits as they are supposed to.
If the insurer doesn’t recommence benefits, a hearing before an administrative law judge may be held. The administrative law judge cannot order a lump sum settlement of the claim. He or she can only order the insurance carrier to pay past due benefits, continuing benefits along with penalties. But once again, there can be no settlement of the claim.
A workers’ compensation claim can be resolved out of court, though.
How to resolve a workers’ comp claim out of court
Specific issues can be agreed to via a consent order, which is subsequently submitted to the court to be signed by a judge. This can contain topics such as who the authorized treating physician should be, and what the average weekly wage and workers’ compensation rate should be, among other things.
Additionally, a workers’ compensation case can be resolved via a settlement of all issues. This settlement can be for a lump sum of money. Typically, a settlement will resolve all issues in the claim, meaning that the injured worker will not receive any future medical treatment, indemnity benefits or a rating for a lump money. The settlement should take into account all of the above-mentioned items in reaching a conclusion. Both parties will weigh the risks and rewards of proceeding with the claim before reaching a resolution.
Most workers’ compensation claims are resolved by negotiation. These negotiations can take place between the injured party, their attorney and the insurance carrier (or their representative directly). If a case is resolved outside of court, the parties will go back and forth with numbers without a third-party being involved. Once the parties reach a conclusion via settlement, the insurance carrier’s attorney will send settlement documents to the injured worker or their attorney for signature.
Mediation is a chance for both parties to come together and attempt to resolve the claim without involving a judge. Typically, the injured worker and their attorney attend, along with a representative from the insurance company. There is typically a third-party neutral, whose job it is to facilitate the discussion with an eye towards resolution of the claim.
During mediation, the parties are split into separate rooms allowing for some privacy. The mediator sometimes encourages an opening statement where both sides present their position to each other. Subsequent to the opening statement, the parties enter separate rooms and the mediator travels back and forth relaying messages to each party. Sometimes numbers are exchanged, and sometimes information is exchanged in an attempt to reach a number to settle the case.
There are 2 very important aspects of mediation.
Firstly, anything said during a mediation cannot be used as evidence against either party. The fact that you agreed to a mediation cannot be used against you at any point during a hearing before a judge. This holds true for the representative of the insurance carrier, as well. Many times during a mediation, one side may concede a set of facts for the purposes of obtaining a settlement. However, if no settlement is reached, then those facts are once again in dispute if the side conceding them so chooses.
Secondly, the mediator is truly a neutral and cannot take sides or force either side to settle. The role of the mediator is to present arguments to both sides that are given to them. They should only be beholden to the deal. Achieving a resolution that both sides can agree with is their goal. Remember, if either side is not happy with the proposed settlement, they can walk away as mediation is voluntary and non-binding.
Settling your workers’ compensation claim can be confusing
Once a case is settled, the settlement documents have to be submitted to the State Board of Workers’ Compensation. This provides another layer of protection for the injured worker. Employers and/or insurance companies cannot have the injured workers waive their rights without submitting these documents to the State Board, who must approve all settlements. Documents must be attached to any settlement to demonstrate its “reasonableness.”
If you have any questions about the settlement process — including what rights you may be giving up via a settlement, or anything else relating to workers’ compensation — please don’t hesitate to contact the lawyers at Gerber & Holder Law.