Mediation – Sometimes, the insurance company will suggest that a case should be mediated. There are a few reasons why the insurance company might do this, and these reasons are always to benefit the insurance company, not the injured worker. The insurance company may think you have a really good case and they want to get out of it as soon as possible with the least amount spent. The insurance company may think you have a horrible case and they want to get out of it as soon as possible with the least amount spent.
The insurance company might think you are being unreasonable they want to get out of it as soon as possible with the least amount spent. The insurance company’s attorney might think his adjuster is being unreasonable and he wants to get out of it gracefully. Sometimes, the insurance company is afraid that Board will find out how badly it treated you and it wants to sweep the whole thing under the rug because the Alaska Workers Compensation Board can send a referral to the Division of Insurance and the insurance company can be investigated for violating insurance laws.
The point is: the insurance company wants to get out of the case.
You don’t have to go to mediation if you don’t want to. If you go to mediation and you don’t like the settlement offer, you don’t have to take it. Settlement negotiations are per se inadmissible in a hearing on the merits so if you refused a settlement offer should not have an adverse impact upon your case.
If you do go to mediation, a mediator will be selected from the Board’s hearing officers unless the insurance company offers to pay for private mediation, which is increasingly rare.
If you do agree to mediation, the mediator will send you a letter setting out what s/he needs before the date of the mediation, including the mediation brief and exhibits.
You do not send a copy of your mediation brief to the insurance company’s attorney. Your brief is filed only with the Board. The insurance company will not send you a copy of their brief.
At the mediation, the mediator will tell you how good s/he thinks your case is and how good s/he thinks the insurance company’s case is.
You don’t have to settle.
You can settle some benefits and leave other benefits open. It is common to settle the indemnity benefits and leave medical benefits open.
If you do go to mediation, plan to spend the day. Bring your cell phone charger. Bring something to read, a deck of cars, a crossword puzzle, or your knitting. Bring plenty of food and water and coffee. The more comfortable and entertained you are, the longer you can hang in there and get a better deal.
The insurance company won’t make a serious offer until after lunch time. Why is that? Why don’t they just tell you up front what they are willing to pay? One reason, I think, is that it’s become part of the culture; it’s been done that way for years. Another reason is that they’re afraid if they offer you everything they have up front, you’ll reject it and the case won’t settle. I tend to think it’s because of the heavy influence of masculine competition that dominated the practice of law for so many years. They need to feel like there was a big fight and that they won something, so you end up playing a tug-of-war like you do with your puppy.
Settlements – If you come to a settlement agreement, with or without mediation, the agreement will be reduced to writing. The insurance company attorney should send you the agreement before you sign it. ALWAYS read the settlement agreement carefully before you sign it. DO NOT go into the insurance company’s law office to sign it unless you have already read and fully understand it. A few things to remember:
DON’T waive your reemployment benefits unless you are actually getting money for them. There is currently a dispute about whether waiving reemployment benefits will forever foreclose an injured worker from seeking reemployment benefits in the future even if it’s for a different injury. For instance, if you injured your knee in one case and waived reemployment benefits because you could go back to work and didn’t need retraining, someday if you injure your back and can’t go back to work, you would not be eligible for reemployment benefits because you waived your benefits in the knee case. Because insurance companies generally insist on a waiver of reemployment benefits, you might be better off years down the line if you went to hearing instead and had the Board order you were not eligible. That way, you would not have waived your benefits and may be eligible some day in the future.
Waiving medical benefits is usually a bad idea, especially in back cases and some knee and shoulder cases which can become a lifetime problems. Think hard about whether the money they are offering you is worth the risk of you not being able to get medical treatment some day in the future for that injury. Talk to your doctor and ask him or her whether you may need treatment in the future.
Closing indemnity benefits means you are going to give up all your future claims to temporary total disability, temporary partial disability, permanent partial impairment rating and permanent total disability. That means if you are ever off work again because of this injury, you will not get any more money. There are many reasons why you could be off work in the distant future because of your current injury. You may need more surgeries or your injury may deteriorate to the point where you just can’t work anymore.
Don’t forget penalties and interest. If the insurance company failed to pay any of your past benefits on time without a legally-recognized excuse, you are entitled to 25% penalties.
Don’t forget your transportation benefits. For the past several years, you have been entitled to more than 50 cents per mile for round-trip travel to your treatment, including physical therapy appointments. That can add up fast.
Keenan Powell has practiced law in Alaska for more than 30 years and has dedicated her practice to Workers Compensation representing injured Alaskans.
All consultations are free. If you want to set up a meeting, use the contact form on www.keenanpowell.com or call: 907 258 7663.