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.
We invite your Comments on this article.
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 beforehand.
At the conference, you will wait in the waiting room/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 over 20 cases set for conference so there are more than 40 attorneys coming together in the small room to discuss resolution of their cases. They may spread out to less crowded court rooms to discuss their 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. Many insurance adjusters only trust the rating from the Board”rater.” 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 (or sometimes days) for the rater to rate the disability.
Usually there will be at least two different medical reports. One will be worth more money 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. Often you will have seen an Agreed Medical Examiner (A.M.E.). Since the parties have already agreed that the A.M.E. is reasonable, the judge at trial, would almost always find disability as described by that doctor. So, if the only issue is what is the level of your permanent disability and we have an Agreed opinion, we know how things will turn out and there is usually little reason to proceed to 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 2018
This article is for general information, and not meant as specific legal advice. You should always see an attorney for specific legal questions.