Posted on August 12, 2016
WORKERS’ COMPENSATION MEDIATION
MAY BE THE BEST OPTION
Mediation in South Carolina Workers’ Compensation cases was “established to resolve disputes without the necessity of a hearing.” R 67-1801(A). At a hearing, the amount of money paid to an injured worker is determined by a Commissioner who is appointed by the governor. A Commissioner is bound by law to decide in favor of one part or other. Mediation allows the parties to reach a compromise - split the baby where the Commission is unable to do this.
Historically, Workers’ Compensation insurance companies have tried to minimize their exposure, and the money paid to an injured worker, by proposing awards based upon ratings outlined in the AMA Guides to the Evaluation of Permanent Impairment and schedules for “Loss of Use of a Member” found in the S.C. Workers’ Compensation code.
This may appear mathematical and scientific, but is fundamentally unfair when the injured worker is unable to reenter the work force.
Injured workers and their attorneys have always had the option of presenting a claim for permanent and total disability (inability to perform services other than those that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist). This would entitle the injured worker to an award based on the remainder of 500 weeks commuted to present-day value. The same injury and compensation rate above could result in an award of over $136,000.00.
Changes to the South Carolina Workers’ Compensation Act have made mediation mandatory when the injured worker is “claiming permanent and total disability.” R 67-1802(A). An attorney representing injured workers in South Carolina, when appropriate, should be able to frame a claim to make such subject to mandatory mediation. Moreover, under the new law the insurance company must “provide a representative, who shall attend the mediation” and “have authority to enter into negotiations, in good faith.” R67-1805.
Mediation gives injured workers and their attorneys a forum to present a case in which the insurance company has to consider all of its exposure. This exposure includes the strength of the injured worker’s case for permanent and total disability. This exposure may also include the dollar value for future medical care. Conversely, at a hearing, a Commissioner, by law, can only award actual future medical care required based upon a reasonable degree of medical certainty and cannot award a dollar amount for such.
Mediation may be in the injured workers’ best interest. However, one cannot just come to the table and expect a permanent and total disability settlement. An attorney representing injured workers in mediation must have a network of experts including the following:
1. Functional Capacity Evaluation
This evaluation is performed by a physical therapist to assign physical limitations such as heavy, light, or sedentary duty. It is important that an injured worker give consistent effort within their physical restrictions to avoid finding of malingering and exaggeration.
2. Vocational Assessment
The injured worker’s restrictions, education, prior work skills, and any other pertinent factors are considered to determine if a return to the work force is possible.
3. Independent Medical Exam
This exam is performed by a physician to determine the degree of disability, usually using the AMA Guides. It is helpful if the physician is willing to review the FCE and/or Vocational Assessment.
4. Future Medical Projection
This is simply the cost of future related medical care and treatment. This is only effective when the injured worker is able to trade away the value of future medical care and the insurance company is willing to do so. This report will not serve as evidence if mediation fails and the case is heard.
Expert reports are expensive. An attorney should be able to identify the issues in the case and determine which reports are necessary. Fortunately, if the injured worker is unable to return to work most of these expert reports can be used to support a claim for Social Security Disability benefits. It is important that attorneys representing injured workers counsel them as to when to apply for Social Security, in order to keep all negotiation options open and to be able to draft a Workers’ Compensation settlement which maximizes Social Security benefits.
CHOOSING THE RIGHT ATTORNEY
Make sure you hire the right attorney. Your attorney should be familiar with Workers’ Compensation Mediation Regulations, and be able to draft your claim to be subject to mandatory mediation, if appropriate. Your attorney should be able to identify the issues in order to determine which expert reports are necessary and which are a waste of money. Finally, make sure the attorney you hire to bring your Permanent and Total case for Workers’ Compensation benefits is familiar with Federal Social Security Act. Filing for Social Security too early will limit your ability to negotiate a Workers’ Compensation settlement, and if the settlement is not properly structured, your receipt of Social Security benefits will be severely delayed.
Attorneys Nicholas G. Callas and J. Scott Shirley have practiced before the South Carolina Workers’ Compensation commission for well over 15 years each and developed a strong network of expert witnesses. Even before the introduction of the Mediation Statute in 2012, Nick and Scott regularly obtained mediation settlements for injured workers; including a 2011 settlement of $435,000 for an injured worker who sustained injury to the brain. Nick and Scott are professionals when it comes to knowing the law, and are able to understand your issues. They will obtain the necessary expert reports, and have excellent negotiation skills that can help you obtain the Workers’ Compensation settlement.
Posted on August 05, 2016
If you are suffering from an illness or from an accident that has led to your inability to work, it’s not easy. If you are the main source of income for your family, this type of situation may cause stress and worry, as you contemplate your chances of ever being able to work again.
A disabling condition caused by an illness or accident can cause you and your family to despair over how you are going to pay bills and replace lost income. In this type of situation, it may seem as if the world is against you, but there is good news. Depending on your financial status and the type of disability you have, there are options for families to gain financial help when disability occurs. One way to replace a significant portion of your lost income from a continuous disability is to apply for social security disability income (SSDI). SSDI is part of a federal program run by the Social Security Administration (https://www.ssa.gov/disability/) to provide medical and financial benefits to people with disabilities. While these programs are open to all qualified citizens of the United States, applying for these benefits can be complex. Obtaining the assistance of an attorney experienced in handling these claims can help you complete the application with the Social Security Administration and assist you in navigating through the appeals process should your claim be denied.
The law defines disability as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
To be considered for Social Security Disability Income, one must meet these requirements:
The Social Security Administration organizes the human body into the following categories and identifies many health issues that might entitle an individual to social security disability benefits:
During your initial consultation with our firm, we will go over your entire work history, your medical conditions that prevent you from working as well as the medical records and opinions from your treating physicians. We will then work with you in developing a plan to obtain disability benefits and assist you in the application and appeals process.
We understand that every situation is different and complicated by nature. This is why we highly encourage you to come into our office to talk to one of our attorneys about your specific case. Call today to set up your free consultation, and we will answer any questions you have about the disability process and help you figure out what type of benefits you might be eligible for under the law. Call Popowski, Callas & Shirley, P.A. at (803)799-2100.