Compromises are a vital and frequent part of the workers’ compensation litigation process. However, one should take care to avoid negotiating them out of habit. With two doctors giving irreconcilable opinions, parties will often agree to split benefits straight down the middle in lieu of litigation.
Sometimes, such as when both parties concede partial disability and are within a close margin, this is a helpful way to allay costs of depositions and further court appearances. Often, upon hearing the word “compromise,” a judge will automatically enter a split in awards, noting that the claimant may rely on their treating doctor for purposes of labor market attachment.
Many times, a variance in the straight split is requested by a claimant’s attorney: “The claimant is asking if we split our 100 percent and your 50 percent at an 80 percent. Is that acceptable?”
Parties have no incentive, in a vacuum, to move the needle of compromise further away from their own interests. After all, why pay more on a compromise when you can try your odds at litigation? If the party is confident enough in their medical to move the split in their favor, why aren’t they litigating themselves?
However, compromises may incorporate more than the rate of awards, with a client’s approval. Most obviously, there is the question of the claimant relying on a doctor’s finding of temporary total disability. One can bargain that a straight split in awards can still occur, but only if the claimant concedes a temporary partial disability rate and agrees to produce proof of labor market attachment within 60 days.
Should a claimant’s attorney lack confidence in how their treating doctor will do on testimony, they will be open to compromised rates. Similarly, if the attorney lacks confidence on whether the provider will even supply the up-to-date medical on the proper form, they will be even more open to a creative solution. When the medical is not available by the day of the hearing, for example, this is an optimal time to offer a more generous window of production of medical, and in return, the needle moves below an even split, in the client’s favor.
Even when their medical inevitably hits the Board file, as there is already a compromise in place, it is unlikely a claimant’s attorney will file a request for action, as there is already a compromise of this medical in place.
With the client’s approval, creative compromises may help reduce exposure in the long-term by way of lower continuing payments, create deadline promises, and encouraging out-of-the-box negotiation that may lead to settling a claim.
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