B Josh Pettingill
Appropriate settlement language can make a significant impact on the total amount of the workers’ compensation settlement, as well as dollars that the injured worker receives. This brief article will provide plaintiff/applicant attorneys with the requisite settlement language to maximize the workers’ compensation recovery, as well as protect their respective firms and clients.
Since the insurance carrier is cutting the check to resolve the workers’ compensation case, they may potentially have leverage to dictate the terms of the settlement. Some plaintiff/applicants’ attorneys may – agree to or overlook certain critical provisions of the settlement to expedite the resolution. Below are the key areas to focus on when drawing up a mediation, or settlement agreement to ensure a timely resolution, as well as maximize the recovery.
Medicare Set-Aside
Make sure to include an all-inclusive figure that encompasses Medicare-covered items, non-Medicare-covered items, and indemnity. Oftentimes, there are ways to get the MSA amount lowered due to the errors by the carrier’s MSA expert or through funding with a structured settlement. Any savings on the MSA can go directly in the injured workers’ pockets. Do not ever agree to terms that suggest some fixed amount PLUS the MSA. If that were to happen, then any savings on the MSA would go the carrier and not the claimant/applicant.
Structured Settlement
There must be language that allows the injured worker the option to place a portion of the settlement proceeds into a structured settlement. If not, some carriers may refuse to fund a structured settlement at a later time. This also allows for time for a qualified settlement consultant to meet with the injured worker to develop a proper settlement plan. Furthermore, you should include verbiage that states any structured settlement shall be brokered or co-brokered by Synergy Settlement Services, or XYZ Plaintiff Structured Settlement Company.
Funding the Agreement
Language should also be included about paying the settlement monies in a timely manner and funding any structured settlements expeditiously. These could be provisions for extra attorney fees, as well as penalties and interest for failure to do so. For example, this could be based either on a certain number of days after CMS approval or approval by the judge of compensation claims.
Continuation of Benefits
Attorneys for the injured worker should include language that medical and indemnity benefits will stay intact for a set time period or until the settlement checks have been issued. That way, the injured worker does not lose out on any benefits and there is no gap in coverage. This can be life-threatening to catastrophically injured workers if they are not able to receive ongoing medical care.
Conclusion
These are just a few of many issues that should be addressed in the settlement/mediation agreement. Other topics include reversionary clauses, CMS approval of the Medicare Set-Aside and what happens if CMS comes back with a larger suggested MSA amount than what was submitted. Settlement language can either make or break a settlement. You need to have a qualified settlement consultant to assist with these complex issues. Synergy attends mediations at no cost to you or your client and offer a number of services to attorneys for workers’ compensation claims, liability claims, medical malpractice and more. Ask us today how we can help protect your law firm firm/your client, maximize the recovery of a workers’ compensation case and make your firm more efficient.
To learn more about Synergy’s Workers’ Compensation Medicare Set-Asides, visit our website.
