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Big cases are rare exceptions, not the rule. All you need are a few of them to keep your practice going.
If you think you don't have any of them in your
caseload, it may be because you did not recognize
them or failed to develop them. It is not too late to
get started with better medical analysis and record-
keeping. Much of what I have to say in this article also
helps with the usual “little cases.”

 

Recognition and development may be the difference between a small and big case


1. Avoiding Common Mistakes
Some common mistakes in handling a workers’ compensation case can ruin a potentially big case:
 

a. Painting yourself into a corner by focusing only on an orthopedic injury and locking in the wrong kind of examiner too early in the process. If you see your case as a "back case" or a "torn rotator cuff" or a "broken ankle” or in some other narrow focus, you will probably agree to an orthopedic examiner and get the usual small rating and limited medical treatment. It may turn out that this is all your case is worth, but before getting stuck in a corner, do a complete medical history to find out if there's anything else going on that is related to the work injury or the treatment for the work injury.
Download and save this health questionnaire with interactive form fields.


b. If you are in a rush to settle, before problems have developed in the client’s treatment or ability to work with their injury or the compensable consequences of the injury, you will have fewer and smaller bargaining chips. A variant of this is being afraid that the client will leave you if the case goes on too long. If you develop better rapport with your clients, and explain that fast settlements are small settlements, you can overcome this difficulty.
Fast settlements are small settlements


c. A defeatist attitude and the assumption that cases aren’t worth much no matter how much you put into them may make you think it's better to take a small fee now than do a lot of work and not get much later. If your practice is of the "turn’em and burn’em” type, you're guaranteed to have small fees. You will also have a lot of work because you will have multitudinous small fees which may well add up to far less than a few good fees from a few well-worked cases. If you recognize yourself in this description, it is time for attitudinal adjustments. It is never too late to change the way you think and practice, to increase your knowledge and develop better skills. There is professional satisfaction in getting better results and getting better referrals from other professionals or clients who admire your diligence and capability.
If your practice is of the "turn’em and burn’em” type, you're guaranteed to have small fees.

d. Not getting mentoring help when you need it. State Bar rule 3-110 requires that you not undertake work you are not competent to perform and that you seek help in such situations. I doubt there is any area of law where research guides provide all the guidance you need. Get help from other lawyers who are more experienced in this type of matter. When I was starting my own practice many years ago, I worked on a personal injury case and got nowhere and told the client I would not be able to get them any money. When I found out from a more experienced attorney that there was still some hope, I called the clients in again. We eventually got a good settlement. The attorney who helped me had been a claims adjuster and knew that there was always some money in a case if he could get around technical problems. He was not the type to let any door slam in his face. His practice was to sit in his office writing letters to claims adjusters with new and different facts, asking them to increase their reserves or to improve their offers. He had more diligence than legal acumen, but that is often what it takes.

State Bar Rule 3-110 requires that you not undertake work you are not competent to perform and that you seek help in such situations.

2. Recognizing the Big Case
Some cases are obviously big ones, like quadriplegia or severe burns over most of the body, but there are other cases that may start out as seemingly small ones but get bigger over time. Most of my big cases over the years fell into the latter category. One way to miss the big case is to assume at the outset that it is just what it is at that moment in time and then make decisions which box you and your client in. For example, the client may have a damaged disk and sciatica, and the attorney assumes that this is purely an orthopedic matter, agrees to an orthopedic Agreed Medical Evaluator, then settles quickly for a small amount. One of my biggest cases presented with a report from a neurosurgeon finding a 30% standard under the 1997 schedule. The client was the stoic type and told me little about her problems. I agreed to an orthopedic AME. Later I discovered, when my client changed doctors, that she had a devastating pain syndrome and had lost the use of a leg, had to wear heavy braces and use a walker, and was taking life-altering medications. The AME's rating was the same as the one she came in with and was based solely on orthopedic factors. Ultimately she was found to be 100% disabled and the case settled by way of a structure. During the five years I represented this client, I discovered I had a number of such cases already in my office. I started to interview my clients regularly, record all their symptoms and complaints, and research the side effects of their medications. If you rush through your cases and are determined to get them reduced to a fee as fast as possible, it is unlikely you will have many big cases unless they are immediately obvious when they come to your practice. Since only a tiny percentage of work injuries produce such obvious profound damage to the worker's mind and body, you will miss most of the potential big cases if you are not willing to let your client get all treatment necessary to their healing, or if you are ill-informed about medical matters and choose the wrong forensic evaluators.

One way to miss the big case is to assume at the outset that it is just what it is at that moment in time and then make decisions which box you and your client in.

3. Developing the Evidence
I created the Medical Manager spreadsheet to help me keep track of these cases. I find that if I extract key passages from medical reports (I scan and OCR in a one-button operation – see Computer Corner, Sept. 2006) and store them in the Medical Manager workbook, I can quickly generate documents without having to plow through a thick medical file. Use the Internet to get the data you need for letters and depositions. You can find out what key questions to ask your client or the doctors through researching. There are multiple medical links built into the Medical Manager so that you can go to various websites without having to look up the links. Other sources of valuable medical data include nurse case managers, physical therapists, occupational therapists, and life care planners. If necessary, take the deposition of the treating physician or QME/AME to develop evidence on future medical needs. Research assistive devices and home health care, which are often overlooked when planning future medical treatment. For example, if surgery may be required in the future, what about in home care or while recovering, or rental or purchase of assistive devices? In future issues we will explore the development of medical evidence in more detail.

How to Organize Medical Issues and Evidence with a Downloadable Medical Manager Spreadsheet.


4. Preparing for Trial
Prepare all cases as though you will ultimately have to try them. A well-organized file will help keep track of evidence. If there is anything you come upon along the way that you think you will need to use as a trial exhibit, label a copy now and put it in a place where you keep your trial exhibits for that case. In previous issues I have recommended ways to keep track of things on computer or in paper files. If you do this systematically with all cases, when a small case turns into a big one, you will be prepared. In addition to using the Medical Manager, I have developed a Case Manager which allows me to keep track readily of issues and evidence, strategy, and settlement data. The Case Manager will be available in a future issue of getMedLegal Magazine. I combine the medical and case worksheets into one workbook with hyperlinks that make it easy to quickly find the worksheets and make notations. If you prefer not to work on a computer, you could use a loose-leaf binder set up as a "trial book." Of course, if the book gets lost, destroyed, or simply not kept up, this will be useless. The advantage of the computer is that you can make regular backup copies to ensure against loss or accidental destruction. You can keep the files on a key drive and take it with you to work on in different locations and ultimately at the Appeals Board.

To set up an efficient office and storage and retrieval methods, see the “Computer Corner” series:

"How to Store It, How to Find It” with downloadable folder tree and icon

“How to Work Faster, More Efficiently, and with Lower Overhead”

“A Case Management Adjunct”


For organizing with paper files, see “MSC Mess? Tame it with a low-tech paper organizer”

5. Negotiating a Structured Settlement
On a big case where there is any chance it will go to a structured settlement [probably any case other than a CIGA case], retain a structure broker as soon as there is evidence supporting big future medical bills and substantial permanent disability. See sidebar. I send an e-mail to my broker with some basic case data and attach the forensic evaluation or deposition transcript that supports a big settlement value. In some cases, before I was ready to make an assessment of the settlement value, I was contacted by defendant’s settlement broker. In other cases, defendant’s broker contacted my broker first. Sometimes a broker will contact their counterpart to inquire if there is any interest in a structured settlement.

Generally, though, you will need to make a demand and suggest that the best approach to settling the case is by way of a structured settlement. Before I make such a demand, I need to educate my client and explain what their case would be worth if they went to trial and how they would benefit from a structured settlement. I may go over the concept with them in various conversations over a period of time. It was hard for me to grasp the concept when I first learned of it, so I expect to need to explain it several times before the client appreciates the benefits.

I keep my explanation simple: they would get cash up front which would help pay off accumulated bills, provide for some things that would make them more comfortable (an adjustable bed, a widescreen television, or something similar that would bring daily comfort are good examples). They would get money to pay for medical bills and would no longer have to rely on waiting for approval after utilization review; when they go to the pharmacy they would no longer have to worry whether their pain medication would be approved; they could get gym memberships or acupuncture or anything else they think may help them without delays and denials. This last point is one of the best features of the structured settlement. I also point out that any money that is not spent from the set aside can go to heirs. This may be the only money that my client would be able to leave for his or her children, since in this type of case, the savings have long been spent just to get by. I point out that they are assured of receiving monthly payments as long as they live. The payments go directly into their bank account by electronic funds transfer, so they do not have to worry about whether the check was mailed when scheduled, whether the check will come by a certain date, whether the check will get lost or stolen, etc. By the time we are getting ready to settle a big case, my client has usually had enough miserable experiences involving delay or denial of care or periodic payments, that freedom from these miseries is very desirable.

As part of preparing my client for settlement, I do a written case analysis showing the client the very most that can be obtained if we go to trial and win everything we are claiming. This is a sobering starting point for all concerned. I warn about the difficulties of proving the non-statutory 100% case. The case may be tried piecemeal over a long period of time. If there are different opinions from each side's vocational expert, the judge may decide to rely solely on medical evidence; either side may appeal and delay the process. Changes in the law during the ensuing months may shrink the value of the case. I point out that after trial, they will receive payments every two weeks (assuming the check is mailed and delivered timely) and hassles over receiving medical treatment are bound to continue if not get worse.

I also point out to my client that any award under 100% will be paid out at some point and a life pension (which I refer to as "life pennies” because of the small size of the payment) will then begin. An annuity is more attractive, because one knows exactly what one will be receiving. If the annuity provides for a COLA, there is some protection against inflation.

In big cases, I am often negotiating directly with the adjuster, at their request. Many people in the business world regard attorneys as deal killers, because we tend to focus on minutiae and let our egos get in the way of sound business judgments. The adjuster is hell-bent on getting rid of the case, while their attorney may see the open case as an endless billing opportunity. The adjuster may want the defense attorney’s involvement to be limited to dealing with the documents after agreement is reached. Of course, make sure that your opponent knows that the adjuster is dealing directly with you, to avoid ruffled feathers or worse, complaints to the State Bar. If, on the other hand, you find the defense attorney much easier to deal with than the adjuster, you may decline the invitation to deal directly with the adjuster.

Sometimes it helps to have the structure brokers deal with each other, while you stay in the background. Like realtors, they have an incentive to preserve and close the deal. If you're having problems with opposing counsel or the adjuster, the broker may be able to intercede at a higher level in the corporate structure.

In some cases, I have arranged a meeting between myself, the structure broker, and my client. I may suggest that a responsible relative attend the meeting, if my client has difficulty understanding and making decisions, or if the relative may undermine the settlement if they don't understand what's going on. Structure brokers are usually very good at explaining the benefits of a structured settlement, since it is something they do on a daily basis. Before the meeting begins, I go over my written settlement analysis with my client, so they know the best that they can do if they go to trial. If you skip this necessary step, your client will be measuring the structure offer against things they heard on daytime television in personal injury attorneys’ ads. They must have a realistic view of the value of their case before they can compare it to what is being offered in a structured settlement. Also, the structure broker usually has several breakdowns of the money available and will offer to rearrange the money to meet the client’s needs.

In some cases, the defendant’s attorney would request a meeting with their structure broker. I would want mine present. At such a meeting, I would not have my client present since there is not yet any agreement on what is on the table.

In summary, negotiating the structured settlement has different permutations, although generally there are only a few variations. It is important to be available for meetings, phone calls, e-mail correspondence and the like during the run-up to
the final deal.

Structured Settlements: Tips from a Structure Specialist Interview with Steve Chapman.

For more information on structured settlements and the structure broker’s role, see: Understanding the Basics so you can deal with the Unique Or How to Effectuate Structured Settlements Presented by Steven F. Chapman at CAAA Winter Convention 2007


Getting Your Cases Settled and Your Cash Flowing Presented by Steven F. Chapman at CAAA Winter Convention 2007


Structured Settlements: Why a Structure Specialist Reviews Subpoenaed Records
6. The Devil is in the Details
While it is important to be flexible and not let a good deal fall apart over a small detail, you also do not want to be in the line of fire later should anything go wrong. A big case could mean big liability and big headaches if the client becomes disgruntled.

Accordingly, you must pay close attention to everything in the numerous papers that accompany a structured settlement, have a detailed informed consent signed by your client, give your client necessary written information such as how to handle the Medicare set aside account, how to get health insurance if they don't qualify for Medicare, and the like. You also need to hang around later and be attentive to their questions. I don't consider the case over when I get paid. Rather, it is over when the client no longer calls with questions relating to their life after workers’ comp.

While you are negotiating and completing a structured settlement, you need to deal with everything yourself and on an urgent basis. This is not something to delegate to secretaries or other office personnel. Too much is at stake and things could too easily fall apart. Plan to spend time on last-minute annoyances involving bank accounts, missing proof of birth, or similar. One of my clients not only lost his birth certificate, but he also lost his wallet with his driver’s license right before proof of birth was needed. While the structure was pending, he decided to move in with friends and go through alcohol detoxification. Communicating with him was nearly impossible, but a sibling helped out and we got the papers signed and witnessed. Eventually, he was able to submit proof of identity and get his upfront cash. For weeks, though, I had no idea whether the settlement would ever conclude.

It may appear at times that everything is falling through the cracks, that nothing is moving towards completion. It is especially frustrating when there is no Medicare guarantee (that the carrier will pay any difference if Medicare/CMS demands more than the proposed set aside), and you have no idea if/when CMS will approve the settlement. Try to get a Medicare set aside guarantee.



7. Some Parting Thoughts
The real value to a structured settlement is it gives the client relief from having claims adjusters and their minions managing their medical treatment. They don't have to wait anxiously at the pharmacy to find out if their pain medicine prescription is being honored. They don't have to worry that they will go into withdrawal while their medications are under utilization review. They don't have to wonder if they will get the physical therapy they need, or some other treatment their doctor thinks is beneficial.

While the settlement will not solve their financial problems, they will be relieved of worry over whether the check will come on time, or whether it will come at all. They know their annuity will be deposited every month at the same time by electronic funds transfer, like their Social Security Disability. They won't have to worry about how or when their workers’ comp case will end. If they get a decent amount of upfront cash, they can pay off accumulated bills and get some creature comforts such as a new computer, TV, or adjustable bed.

For the attorney representing injured workers, the structured settlement can represent an economic shot in the arm that is much needed, especially in today's climate of greatly diminished fees. It also utilizes and builds professional skills in marshaling evidence, dealing with the various personalities of clients, adjusters and opposing counsel, and honing negotiating skills.

In order to avoid malpractice liability, and to provide the best possible service, make sure you have a detailed informed consent document, that you have provided detailed information on how to manage the Medicare set aside account, or you have set up a trust where the client is not capable of managing the set aside, that you have given information on how to get medical insurance in those cases where the client does not have Medicare or other medical coverage. Your structure broker should be able to help you with this or put you in touch with a mentoring attorney who can help you.



Marjory Harris began practicing law in 1974 as a defense attorney and later became an applicant's attorney and a certified specialist. She continues to represent injured workers at the San Francisco and Oakland venues and mentors attorneys on big cases.

Reach Marjory Harris at (888) 858-9882 or email to mharrislaw@verizon.net www.workerscompensationcalifornia.com






Managing the Big Case:
A How-To Guide

by Marjory Harris, Esq.

> Big Case How-To-Guide
> Computer Corner: Med Manager
> Surviving SB 899
> Getting Best Treatment & Evidence
> Structured Settlement Tips
> New Role for Voc Rehab Eval
> The Nurse Case Manager
> The Physical Therapist
> The Metamorphosis of WC