February 7, 2017
So you were able to get one of your workers’ compensation claims settled. Now what? In my experience providing our clients flat-fee walkthrough service for settlements in all California venues, I have learned that the hard work may not end once the negotiations are over, especially if you are dealing with an unrepresented injured worker. The settlement still needs to be approved by a Workers’ Compensation Judge at the local Workers’ Compensation Appeals Board (WCAB) district office.
We have found that when a claims examiner mails in a settlement to a local WCAB district office, they often receive Orders Suspending Action with a notices of hearing to address the adequacy of rejected settlement. In those instances, it can be confusing to try to discern the exact reason the settlement was not approved. Frequently, the reason the settlement was rejected was because some important document or information was missing from the materials sent in to the WCAB.
2016 was a great year for Gilson Daub in getting our clients’ walk through settlements approved. We have learned some important lessons over the years that I would like to pass on. In order to improve your chance at getting your settlement approved and avoid a rejection, our attorneys recommend submitting the following materials to the WCAB.
- Fully executed Stipulations with Request for Award or Compromise & Release (C&R). Nothing is more frustrating than to see a settlement come back because an important detail was omitted. Double check the settlement to make sure you have completed the forms accurately. Make sure the settlement documents are fully completed and correctly signed by all parties before sending them in to the WCAB. Additionally, if the case is settling via C&R, make sure you have obtained the appropriate witnesses signatures or it is properly notarized.
- Permanent & Stationary(P&S)/Maximum Medical Improvement (MMI) Report. If the case is settling based upon the medical reporting of a Primary Treating Physician (PTP) or Panel Qualified Medical Evaluator (PQME), make sure to send the MMI/P&S report along with the settlement documents. The Workers’ Compensation judge will want to review the reports to make sure the rating was done correctly and the report constitutes substantial medical evidence. If there is no MMI report, please explain within the narrative boxes of the settlement documents why the parties are settling without a MMI report. Also keep in mind, that if the MMI Report gives significant apportionment to non-industrial causes or gives a lower permanent disability than would be expected, a judge will likely want to see the diagnostic studies (e.g. MRI’s, EMG/NCV, X-Rays) to confirm that the doctor’s conclusions constitute substantial medical evidence.
- PQME Notices and PQME Waiver. It is not uncommon for a case to settle based upon the opinions of the PTP without a PQME report. The Applicant is, however, entitled to a second opinion by a PQME if there is disagreement with the PTP’s opinions. Most judges will require that the carrier submit a copy of the notice advising the Applicant of their right to a PQME. This notice is usually contained within the disability notices that insurance carriers send out. However, many judges are now requiring a separate PQME waiver signed by the Applicant that indicates they understand and are declining to take advantage of their PQME rights. Some judges are requiring both the letter advising of PQME rights and a PQME waiver. The judges want to see if the unrepresented Applicants were actually informed of their PQME rights before signing the PQME waiver.
- Benefits Printout showing Indemnity Payments. Whenever Temporary Disability (TD) or Permanent Disability (PD) benefits have been paid to the Applicant, it is a good idea to include benefits printout documenting all the indemnity payments that have been made on the claim. Make sure that the benefits reflected on your settlement documents are consistent with the Benefit Printout. The math ought to add up.
- Include Permanent Disability rating string in the Stipulation/C&R. Some judges are now requiring the Defendants to show how they came up with the Permanent Disability (PD) value for the settlement and thus want to review the rating string that was utilized to verify Whole Person Impairment (WPI), occupational codes, and apportionment calculations.
- Wage Statement. Some Judges want to verify that the Applicant was receiving TD and PD at the proper rate. They will look at the wage statement and confirm that the proper Average Weekly Wage was being used. Double check and make sure that the AWW, TD rate and PD rate are consistent within the settlement documents and throughout the benefit notices, benefit printout, and wage statement.
There are several other important steps in getting your settlement approved that vary from judge to judge. From a workers’ compensation defense attorney who has personally appeared in front of every WCAB district office, let me tell you that every local board is different. There are even dramatic differences between judges at each WCAB. Some district offices will allow same day hand delivered walkthroughs, others require the settlement documents to be dropped off or electronically filed 24 hours before the walkthrough. Some judges require lien affidavits or EDD/Child Support waivers. Some district offices will allow an attorney to select the walkthrough judge of their choice and others will assign the judge arbitrarily. For the best chance at getting your settlement approved, I recommend utilizing an experienced local attorney who is familiar with the finer details of the specific WCAB district office and the unique preferences of each judge.
If you have any questions on getting your settlement approved or thoughts on these recommendations, please feel free to contact me.
Brent M. Daub
Gilson Daub, Inc.