The mediation may involve the ultimate settlement of the workers’ compensation case or it may be limited to a particular issue such as medical treatment for a torn rotator cuff, surgery on a back claim, or even mileage reimbursement.   At the State Board of Workers’ Compensation, the mediation settlement conference is free of charge to the participants.  Generally, the parties will begin with an opening statement.  Subsequently, the parties will be separated into their respective “caucus.”  The mediator will then shuffle between the parties providing neutral insight to both parties as well as delivering messages.   The information exchanged at the mediation should remain confidential.

At the Ramos Law Firm, we have successfully mediated hundreds of claims and reached favorable results for our clients.

From the Employer/Insurer’s side, it is strictly a business decision. From the injured workers’ perspective, it may be more complicated as he or she may be giving up future medical treatment, employment, and future benefits. Therefore, careful consideration must be given to settling a case. Consideration of “real life” circumstances must be addressed. Many clients “need” the money as soon as practicable so that they can save their house, car, or pay for their kids schooling. Insurance companies understand this and they may use it to drive a “better bargain” for their stockholders. Also, the injured workers must consider how they will pay for future medical treatment once the case closes. Generally, the Employer/Insurer will insist that all future medical treatment be the responsibility of the injured worker.

For more information, call us today at 404-355-3431.

First, it is important to consider the injured workers’ medical status.  If the employee is facing surgery or is not close to maximum medical improvement (MMI), then the case should not settle.  The rationale behind this rests in the fact that potential medical expenses may exceed the settlement proceeds.  In other words, there is no point in settling a a case for $25,000 when the potential medical expenses may cost $40,000. It is more sound to settle the case after the injured employee’s medical condition has improved or has stablized.  Therefore, the injured worker must carefully consider the value of his or her future medical expenses as it relates to the industrial accident.

Assuming the employee’s medical status is plateaued, the next consideration is whether the claimant is physically able to return to work in some capacity.  The ability to return to work does not necessarily mean returning to “regular” or “normal” duty work.  Whether the injured worker can return to work for any employer influences the overall value of the case.  If the claimant cannot return to work in any capacity or is totally disabled, the value of the claim generally increases.

Moreover, if the injury is severe, the injured worker’s permanent impairment may be significant.  Georgia law provides another formula for compensating the employee for the permanent loss of use as it relates to the occupational injury.  The formula considers the claimant’s weekly compensation rate, the affected body party, and the level of impairment.  This rating is very specific and incorporates the American Medical Association’s Guides to Impairment (5th Edition).

As you can see, there are many factors to consider how much a workers’ compensation claim may be “worth.” However, the actual value of the case depends on what the insurance company will pay and how much or little the injured worker will take.  No two claims are the same and it is important to consult a workers’ compensation expert like the attorneys at the Ramos Law Firm to navigate the complex work comp law.

When considering resolution of your comp claim, you should consult with  your workers’ compensation  attorney in addition to speaking with your medical providers.  Specifically,  we recommend you determine the following:

• what future medical treatment will be necessary;
• what is the cost of future treatment; and
• whether you will be able to return to gainful employment.

An attorney at the Ramos Law Firm I can assist in evaluating a claim to determine how  a  settlement will impact your ability to seek future medical treatment, return to work, and qualify for Medicare or Social Security Disability.

In some instances, it may be a good idea to secure a Functional Capacity Evaluation or an Independent Medical Evaluation (second opinion) to assist you with determining your future medical care.   A Functional Capacity Evaluation (FCE) consists of a comprehensive set of performance based tests, which are used to determine ability to work, ability to carry out daily living activities and ability to engage in leisure activities.  Whereas, an Independent Medical Evaluation (IME) is an exam by an independent medical doctor who will determine whether you can return to work, are fit for full or light duty work, or if there is an impairment rating.  Often times, an FCE or IME, will assist in projecting the settlement value of the claim.

Remember, there is no exact formula to calculating the value of a claim.  However, the settlement value of a claim may be maximized by working with an attorney and medical providers who are familiar with the evaluation of workers’ compensation claims.

The aforementioned retirement benefits are considered contractual benefits which fall outside the scope of the Georgia Workers’ Compensation Act. Workers’ compensation attorneys will explain to their clients at the inception of a claim that several additional claims may arise out of a workers ‘ compensation claim, such as violations of ERISA or COBRA.  Often times ERISA or COBRA violations are tangentially related to a claim for compensation and will not be handled by a workers ‘ compensation attorney.

For example, an employee may be confronted with a violation of ERISA or the Employee Retirement Income Security Act of 1974 with regards to an employer denying the employee access to health benefits.  ERISA was enacted to ensure that Employers uphold their legal obligations to their employees with regards to health insurance plans.  Most employee health plans are covered by ERISA and require that employers provide participants or beneficiaries (employees and their  dependents) with access to plan information.  Additionally, ERISA also requires employers uphold their fiduciary responsibility to their employees by ensuring employers properly manage and oversee plans with the best interest of the employees in mind.

In the context of a workers’ compensation claim, an employee must be mindful of possible ERISA related issues that may arise either during the handling of their claim or during settlement. ERISA claims are often very complex and although your workers’ compensation attorney can identify an ERISA violation, the claim will probably be referred to an ERISA attorney.

It is important that employees take full responsibility for discussing and/or bringing concerns about related issues to their workers’ compensation attorney.  At the Ramos Law Firm, our attorneys specialize in workers’ compensation, however, we work with our clients to ensure their rights are protected under the Georgia Workers’ Compensation Act and will refer our clients to experienced attorneys if an issue outside of the employee’s workers’ compensation claim arises.

The relevant statute provides for an assessment of a 20% penalty for failure to pay a stipulation within 20 days (O.C.G.A. Section 34-9-221(b)). The statute also provides that payments mailed from within the State of Georgia are considered timely made if they are mailed on the 20th day after the approval. Payments made from outside the state of Georgia are considered timely made if they are “mailed no later than three days prior to the due date to the address specified by the employee or the address of record according to the Board.”

The code used to read that the payment had to be received on the 20th day. The state legislature has since shanged that. The language of the statute was explored in Liberty National Life Insurance Co. v. Coley, 201 Ga. App. 203 (1991). In that case the Court compared the difference in the language of the statute and emphasized the fact that the revised language makes quite clear that a payment is “considered paid when mailed.” So if a payment is not received on the 20th day, it is not necessarily late.

The first thing the worker should take into consideration is whether he/she believes that a return to work is possible. Obviously, there is a broad range of injuries that can occur at work.  Sometimes, they are quite minor and clearly will not affect any future employment.  On the other end of the spectrum, obviously some injuries can be so severe that as a practical matter, no future employment will be possible.  The employee must consider then whether the settlement is enough, considering the future employment potential.  Obviously, if the worker has another job lined up already, then a smaller settlement amount may suffice.

Another thing the worker must take into account is the fact that they will have to resign.  Very few employers will allow a workers’ compensation settlement without insisting on a resignation. Remember, though that a resignation is not just a surrendering of a position at the company.  It is surrendering benefits as well.  It is a good idea for the worker to consider all of the costs that will exist upon the resignation, such as health and dental insurance. The resignation will normally qualify the worker for COBRA coverage, but as anyone who has opted for this before will know, that can be extremely expensive.  It is also limited in time span such that once the COBRA expires, the worker is left to seek other insurance if new employment with benefits has not been obtained.  The resignation can also have great affects on a retirement plan.

Taking these factors under consideration are often steps that a worker is hesitant, or even unable, to take. The lawyers with the Ramos Law Firm will help you think through all of the ramifications of your workers’ compensation claim.  We can help connect you with financial planners and other professionals to get the best possible understanding of your financial status.  Having all of the proper information can help ease a worker’s mind about settlement and what the future may hold.

There are three principal types of ADR that are commonly used.  Mediations are commonly used for smaller claims such as car accidents or workers’ compensation claims.  The mediators help the people involved come to an agreement to settle a case by evaluating the facts. Arbitrations are more commonly used when there is a business transaction involved.  In binding arbitration, an arbitrator hears the case and then renders a decision or award.  Special master appointments are commonly used for complex cases.  In these situations, a special master may hear a case for months.

ADR became popular when the typical case took longer and longer to resolve.  On average, a typical case takes about 2-3 years to resolve. Parties have gotten smarter.  People do not want to live their lawsuit for years instead of their real life.  Why wait 3 years for someone else to resolve the case if we have enough information so we can resolve the case now?  ADR is a way to avoid the time, trouble, and expense of the “angst of the litigation process”.  It is a way to eliminate the hidden costs of litigation which can include deposition expenses and hours on the phone with your attorney.

In this economy, it is predicted that ADR will become even more popular as litigation budgets are reduced.

At the Ramos Law Firm, our attorneys regulary participate in mediation settlement conferences where we have negotiated complex settlements.

1) Know the Law – That seems simple, but if the attorney appears at a mediation and does not have a strong understanding of the controlling law, then the attorney will certainly fail to convince the other side to soften their position.

2) Know the Facts – Again, it seems very simple, but it is difficult to be convincing if you do not have a command of the facts of the case. Why would an Employer/Insurer offer more money if they are unconvinced that opposing counsel could make a strong presentation at a hearing?

3) Know the Value - So many times a claimant, with no understanding of the law, appears for a mediation and has unreasonable expectations about the value of a claim. Conversely, the Employer/Insurer should be well informed about the value of a claim so that there are no surprises during the negotiation process.

Developing a Medicare Set-Aside makes it easy for insurers to consider Medicare’s interests during workers’ compensation negotiations. Federal law requires that employers, group health plans, and insurance companies, consider the Centers for Medicare and Medicaid Services’ (CMS) interests during the settlement of workers’ compensation claims. There are several ways the parties may consider CMS’s interests during settlement, but the most common way is to establish a Medicare Set-Aside (MSA).

An MSA is, in effect, a fund developed to provide for future medical expenses. Insurers should consider using an MSA whenever a claimant’s injury is work-related; there are future medical expenses; and Medicare could possibly be responsible for paying for treatment. Medicare considers itself a possible payer whenever a claimant is a Medicare beneficiary and the workers’ compensation settlement amount is greater than $25,000. It also considers itself a possible payer when the settlement amount exceeds $250,000 and the claimant can reasonably expect to become a Medicare beneficiary within thirty months of settlement.

Insurers wishing to develop an MSA should use legal and medical experts to evaluate the claimant’s medical reports and cost analysis tables to determine the future cost of treating the work-related injury. Legal experts can then take this cost and cross-reference it with Medicare’s statutory guidelines to determine which aspects of treatment Medicare will cover. Once an amount is determined the insurer and the claimant should agree on this amount and earmark it in the settlement agreement to fund the MSA. After the resolution of the claim the insurer must disburse the agreed upon amount directly to the claimant or a third party financial administrator. After disbursement the claimant, or administrator, is responsible for depositing and managing the trust account funds.