 |
Structured Settlements and
Mediation
By Steve Chapman
|
 |
|
|
|
|
|
 |
|
 |
|
As Judge Siemers discusses in
this issue, mediation is a tool
that can be utilized in attempting to resolve catastrophic and complex
workers’ compensation cases. The structured settlement specialist
can play an important role, both in the time leading up to mediation
and during the actual mediation process.
|
|
|
| The structured settlement specialist
can play an important role, both in the time leading up to mediation
and during the actual mediation process. |
|
|
|
|
|
One of the most important roles the
applicant’s structured settlement specialist can play is to
assist in the initiation of the mediation process. All applicant
attorneys are familiar with the situation where defense counsel is
too busy to focus on the case, is not being responsive to the letters
or calls, or is inexperienced in complex and catastrophic cases,
etc. The structure specialist for applicant’s counsel can contact
a structure specialist who works for the comp carrier in an attempt
to explore the possibility of mediation. The defendant’s structure
person usually has a direct connection to the claims department and
the examiner in particular. This “back door” communication
has proven to be quite successful over the years, resulting in a
mediation date being set shortly after initial contact between the
two structure people.
|
|
|
The
structure specialist for applicant’s counsel can contact
a structure specialist who works for the comp carrier in an attempt
to explore the possibility of mediation.
|
|
|
|
|
|
Once a mediation date has been set,
the structured settlement specialist can begin to work on analyzing
the present values of future medical treatment and the indemnity
components of the case. One of the most important documents necessary
for there to be a meaningful mediation is a current Medicare Set-Aside
analysis. If the applicant is on Medicare or if there is a reasonable
expectation that the applicant will be entitled to Medicare within
the next 30 months and the settlement is over $250,000, then a Medicare
Set-Aside will need to be created and eventually submitted to CMS
for approval. Without a proposed Medicare Set-Aside available at
the mediation, it becomes virtually impossible to determine if the
settlement amounts being offered are adequate. The structured settlement
specialist can work with the parties to ensure that the MSA is prepared
prior to the mediation date. It is important that the necessary releases
are executed and “rated ages” are obtained for presentation
to the MSA vendor. The rated ages are crucial so that the MSA is
prepared with an accurate life expectancy. In addition to the rated
age, the structure specialist can help to ensure that the MSA is
broken into seed and annual payments allowing for the structure of
the MSA in the appropriate circumstances. These responsibilities
and others often fall under the domain of the structured settlement
specialist. If each side is retaining a structure person of their
own, then two individuals can work together to accomplish these necessary
tasks.
|
|
|
Once a mediation date has been
set, the structured settlement specialist can begin to work on analyzing
the present values of future medical treatment and the indemnity
components of the case.
|
|
|
|
|
|
Once the MSA is on the path towards
completion, the structured settlement specialist can assist applicant’s
counsel in determining the present value of any and all non-Medicare
medical components. The primary and most costly of the non-Medicare
components are: home care, transportation, home modifications, co-pays
and donut holes. The structure specialist can review medical benefit
print-outs, discuss current medical treatment with the applicant,
and review current medical inflation factors in an attempt to find
a fair value for this aspect of the case.
|
|
|
The structured settlement specialist
can assist applicant’s counsel in determining the present value
of any and all non-Medicare medical components.
|
|
|
|
|
| |
In the period before the mediation,
I have found it very important for applicant’s structure specialist
and the applicant’s attorney to meet with the applicant to
explain how the MSA works and how their future medical treatment
will be handled through Medicare, etc. At the mediation, there may
not be sufficient time to answer all of the questions an applicant
may have about the settlement of their future medical treatment,
and there will definitely not be ample time for the injured worker
to digest all the nuances. By addressing the MSA issues and the workings
of Medicare with all decision makers prior to the mediation, the
focus of the attorney and the structure specialist can be on obtaining
the best settlement possible. In addition to the future medical component,
the structure specialist can run various indemnity figures. By providing
a range of figures for the indemnity which include best and worst
case scenarios, the applicant’s attorney can assist the applicant
in making an informed decision, and will be able to assess the adequacy
of offers being made.
|
|
|
By addressing the MSA issues
and the workings of Medicare with all decision makers prior to the
mediation, the focus of the attorney and the structure specialist
can be on obtaining the best settlement possible.
|
|
|
|
|
| |
The structured settlement specialist
can perform a variety of duties at the actual mediation. As offers
are made, and the need for counter demands arises, the structure
specialist can provide figures for the applicant’s attorney
and be able to explain to the defendant and to the mediator how the
figures were calculated. It is the ability to keep the process moving
forward that allows the mediator to do their job. The whole process
can come to a grinding halt unless there are experts present who
can recalculate present values as new information is presented during
the process. Additionally, there are times in mediation where the
mediator senses an impasse and needs to have the structure expert
run figures for their own edification, in an effort to keep the negotiation
from falling apart. When each side has there own structured settlement
expert, the mediator can have the two specialists work together in
an effort to find a compromise. The presence of structure people
at the mediation provides additional tools for the mediator to utilize
all available resources in attempting to find a mutually agreeable
settlement. Thus, the structured settlement specialist not only can
play a key role in preparing for the mediation but can assist all
parties to reach the desired conclusion at the actual mediation.
|
|
|
At the mediation, the structure
specialist can provide figures for the applicant’s attorney
and be able to explain to the defendant and to the mediator how the
figures were calculated.
|
|
|
|
|
|
Steve Chapman has been a structured settlement
specialist for more than 24 years. For the past 17 years, he has
specialized in workers’ compensation structured settlements.
He has appeared at every Appeals Board throughout California .
Steve Chapman strives to remain current on all issues affecting
the settlement of the case, including Medicare set-aside allocations,
life care plans, medical cost trends, Long Term Disability, and Social
Security issues.
To contact
Steve Chapman:
Steven F. Chapman
National Settlement Consultants
12039
Jefferson Blvd.
Culver City, CA 90230
Phone: 800-845-2969
Fax:
310-450-3132
Cell: 310-480-5742
Email: SettleMan@aol.com
|
|
|
 |
|
