 
What is a Mandatory Settlement Conference?
The first time you go to workers' compensation court, known as the Workers'
Compensation Appeals Board, it will probably be for a Mandatory Settlement
Conference or "M.S.C."
The law requires a conference with all parties present prior to trial. The
parties are required to attempt to settle the case but if they cannot they are
required to agree what issues exist. For instance, we might agree that you were
injured and disagree over the extent of your disability.
Attendance at the conference is "mandatory." It is not mandatory that we settle
the case, only that we try to. Sometimes, this will be the first time that
anyone from the insurance company has seriously looked at the case in terms of
settlement. Some insurance adjusters have responsibility for hundreds of cases
and just cannot get around to each one until they are forced to.
What will I do at the Mandatory Settlement Conference?
Your presence is mandatory at the Mandatory Settlement Conference primarily in
case there is a settlement. All settlements in a workers' compensation case must
be approved by a judge. This is our opportunity to present a settlement to the
judge and have him sign it on the spot. Therefore, if we do reach a settlement
it is important for you to be there to sign it so that we can present it to the
judge without delay. Otherwise, it might take months to circulate the documents
for signature and then have the judge sign them.
If you are out of town or must work on the day of the settlement conference, you
can be excused. You must talk to your attorney about this before hand.
At the conference, you will wait in the lobby and your attorney will talk to you
from time to time during the discussions with the defense attorney. Hopefully,
some offer will be made by the defendants which will be conveyed to you by your
attorney. If no settlement is reached at that conference the case will normally
be set for trial. Occasionally, we will set the case for another conference if
it appears that this will be useful in resolving your case. This can only be
done with the judge's approval. The trial date will usually be several months
after the conference date.
What does my attorney do at the Mandatory Settlement Conference?
The Mandatory Settlement Conference takes place in one of the small court rooms
at the Workers' Compensation Appeals Board. Usually there are about 20 cases set
for conference so there are approximately 40 attorneys coming together in the
small room to discuss resolution of their case. They may spread out to less
crowded court rooms to discuss the case. Ideally, both attorneys will have
evaluated the case from their perspective and will be familiar with the issues.
Some cases will settle easily and others are much more complicated.
Sometimes it will be necessary to have the workers' compensation rater determine
from the medical reports the percentage of disability described by them. Your
attorney can often do this but in the event of complicated disability
descriptions, it is often better to have the official rating done by the
professional rater at the Workers' Compensation Appeals Board. If your case is
set for "rating pre-trial" then these ratings will usually have been done ahead
of time. If not, you might have to wait an hour or more for the rater to rate
the disability.
Usually there will be two medical reports. One will be higher than the other. If
we settle the case, it will usually be for a value somewhere in between the two
reports. The insurance company almost never pays top dollar unless they are
ordered to after a trial.
If the case cannot be settled at the Mandatory Settlement Conference, then the
attorneys will fill out papers which describe what issues are agreed upon and
what issues are to be decided by the judge. The attorneys will list their
witnesses and exhibits, including medical reports. After the Mandatory
Settlement Conference you cannot add witnesses or exhibits. "Discovery" will
close at the Mandatory Settlement Conference. That means that we will not be
able to go out and get any more medical-legal reports or add witnesses to the
list.
You should be prepared at the Mandatory Settlement Conference to discuss with
your attorney the names of any witnesses which you think should be called to
trial. There is no penalty for not calling someone on your list, but if the name
is not on the list we will not be able to call them as a witness to the trial.
For the same reason, all medical reports should be complete by the time of the
Mandatory Settlement Conference.
Your attorney usually has reviewed the file thoroughly and has prepared
documents for trial before the Mandatory Settlement Conference. This makes it
clear to the insurance company that we are ready to go to trial and will not be
intimidated.
After discussions are complete, the attorneys will speak to the judge. If the
case is not settled, they will explain to the judge briefly why it is not. If he
thinks that efforts to settle have not been serious enough, he may order one or
the other party to go talk to their client and try harder to settle the case.
Some judges do not mind setting cases for trial and trying them and other judges
use a lot of pressure to settle a case. Your attorney will usually know the
personality of the judge you are dealing with.
Your case is usually not set for trial with the same judge who handled the
settlement conference. If the case does not settle, another judge will be
assigned as the trial judge. The personality of that judge will be a factor that
your attorney will discuss with you in regard to whether or not you should
settle your case.
What if my case doesn't settle at the Mandatory Settlement Conference?
If your case doesn't settle, one of three things will usually happen. Either the
case will be set for trial, set for another conference, or taken "off calendar."
If the case is set for trial your attorney will tell you when the trial is and
will arrange an appointment before that day for you to prepare for trial. You
will get further information about what to expect at the trial.
The judges discourage continuing the case to another conference. Unless there is
a specific good reason that another conference is likely to bring about a
settlement, the judges will usually either set the case for trial or take it off
calendar. If there is another conference, the same information applies to that
conference as applied to the first conference.
If your case is taken "off calendar", that means that it is not set for any
conferences in the future. This could be because a settlement has been agreed
upon but will need some time to be finalized and signed. In that case the judge
might hold the file in his/her office for 30 days awaiting return of the
settlement. Another reason to take the case off calendar is if the parties agree
to go to an Agreed Medical Examiner. In that case you will receive further
information about the agreed medical examination. It may also be that the case
was just not ready to settle or to go to trial for various reasons. You may have
recently had a surgery or other major change in your condition, etc. If that is
the case, your attorney will request a conference later when the case is ready
for settlement or trial.
As usual, if you have any questions about the workers' compensation process, be
sure to contact your attorney's office.
© Robert S. Havens, 2009
This article is for general information, and not meant as
specific legal advice. You should always see an attorney for specific legal
questions.
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