I recently mediated a partially denied claim where the attorney for the injured worker had no idea what the value of the future medical costs might be. It was an old dog claim, and treaters had been deposed multiple times.
When a printout provides historic data, it’s pretty easy to project future expenses. Sure, parties might disagree about the credibility of treaters’ recommendations or the likely cost of future expenses. They might debate the effect of inflation versus drugs going generic. But parties can compromise on those things.
There are ways to prepare for contingencies in a compromise and release. An experienced mediator can help you.
Perhaps this issue is in the NSS category. On the other hand, I see so many parties come to mediation unprepared, I’m taking the time to spell it out.
Discovery is how you find out things
The primary treating physician (PTP) submitted a report recommending expensive future surgeries and treatment. The PTP was deposed, multiple times. Experts for the employer were deposed and of course said that the need for the procedures was non-industrial. Did anyone ask those experts what such a surgery or treatment might cost?
There’s this thing called the internet
As an experiment, I Googled “cost of fusion surgery los angeles.” I also Googled “how much does Medicare pay for fusion surgery los angeles?”
Mediation participants often bring in printouts from various websites showing medication costs.
A person might want to argue about the numbers shown on these pages. For one, it isn’t clear that workers' comp wouldn’t get it cheaper. In other words, the value to the employer is different than the value to the injured worker.
Also, many injured workers have Medicare or Medi-Cal (Medicaid) coverage. This means they have lots of room to negotiate.
Informed negotiators negotiate. Uninformed negotiators throw out numbers without support. You could be using a number that’s too high or too low. When your position lacks credibility, the case is unlikely to settle.
Claims organizations have data
Claims organizations are in the business of paying for medical treatment. Claims professionals see bills for the same procedures again and again. They set reserves based on data. Ask for that data from your client or your opponent. If you are the applicant’s attorney, the worst that can happen is that they refuse. That says a lot, too.
There’s no excuse for coming to mediation while clueless about the value of the case. You should repeatedly re-evaluate throughout the case’s pendency. Preparation and good faith negotiation can end cases earlier, saving everyone time, money and stress.
Attorney Teddy Snyder mediates workers' compensation cases throughout California. She can be contacted through WCMediator.com.
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