Under California law, all the parties to a workers’ compensation claim must attend a Mandatory Settlement Conference (MSC) before the claim can proceed to trial. In this article, we’ll look at the MSC process and how it works.
As the term Mandatory Settlement Conference implies, you are required to attend. You need to be there because one of the primary reasons for the conference is to see if your case can be settled by the parties, thus avoiding a trial. If a settlement is reached, the settlement documents are prepared, signed by all parties, and thereafter submitted to a judge for approval. The judge will then review the settlement to determine whether it is fair and reasonable. If so, the judge will then issue an Award and/or Order approving the settlement. Clearly, if you weren’t at the conference, any potential settlement reached could be delayed from days to months while the settlement documents are circulated for each parties signature and then submitted for the judges review and approval.
While it is mandatory to attend the conference, it should be kept in mind that it is not mandatory for the parties to reach a settlement in the claim. However, the parties do have to make a good faith effort to try and resolve the case, if at all possible.
Because this may be the first time that the representative for your employer’s insurer is taking an in-depth look at your claim, the settlement process and MSC may take some time. Generally, while your attorney and the insurer’s representative discuss your claim, you will be waiting in the waiting room or lobby at the local Workers Compensation Appeals Board office where the hearing is being held. From time to time during the conference, your attorney will advise or update you on how the negotiations are proceeding.
If a settlement offer is made by defendants (employer’s insurer/representative), your attorney will communicate the offer to you and will normally provide you with their opinion on whether or not to accept. If a settlement cannot be reached, then the case will usually be set for trial. However, it is possible that either party or both parties could make a request that the case go off calendar. Should this occur, the judge would hear the parties arguments on the issue and decide whether there is good cause for the case to go off calendar or instead close discovery and set the case for trial. Typically, once the case is set for trial the parties will obtain a hearing date, which is often several months after the MSC.
The MSC is held in one of the courtrooms at the California Workers’ Compensation Appeals Board where your case is venued. There are usually several cases set for an MSC with the assigned judge for the same date and time as your case.
The attorneys for the applicant (injured worker) and the insurer’s representatives all gather in one of the courtrooms at the Appeals Board. As stated, the goal of the MSC is to separate the cases that are capable of being settled from those that will have to proceed to trial. In general, whether a workers’ compensation case settles oftentimes depends upon whether the parties can reach an agreement on three things:
Therefore, the parties at any time may need to go in front of the judge to discuss issues in the case in order to get the courts input on those issues to help the parties in their settlement negotiations or in setting the case for trial. In many cases, if the parties cannot agree on the rating of a case based on the medical evaluation(s), a professional rater (employed by the state of California) from the Disability Evaluation Unit (DEU) will review the relevant medical records and provide the parties with a rating addressing the injured workers percentage of disability based on those records. The DEU raters are normally located in the same building as the Appeals Board where the conference is being held. Since the judge at trial is usually unlikely to disagree with the DEU rater, the percentage of disability is not typically an issue once a rating has been obtained. However, even with a DEU rating, there could still be an issue as to the proper method for rating an Applicant’s disability based on the medical evaluators opinions, which if not resolved could ultimately require the judge to make a decision on such after trial.
In addition, there are potentially three different types of medical reports that could be involved in any case to address the injuries involved and related impairment. The first could be from a claimant’s primary treating physician, the second from a Panel Qualified Medical Evaluator (QME) or if the person is represented, possibly from an Agreed Medical Examiner (AME), all of whom may have examined the claimant. If there is more than one evaluator, almost always, one report will be worth more money than the other based on the rating of the physicians opinions on impairment/disability. However, if the parties have utilized an AME, then the judge at trial will invariably agree with the opinions and recommendations made by the AME, unless there is an issue on the most accurate method of addressing/rating the Applicant’s impairment or they find that such opinions do not constitute substantial evidence.
So, when it comes to settlement, if the industrial injuries and related percentage of disability given by the AME or QME is known and there is no dispute regarding such, then there is a likelihood that the case will settle and that there will be no good reason to proceed to trial. However, in other cases where these rating issues exist or there are other issues such as whether your injury occurred in the course of employment that are being contested, a trial may be the only option.
Generally, if it does not appear that your case will settle (either before or at the MSC), your attorney will prepare the paperwork necessary to proceed to trial. This is not done out of pessimism, but is to in part show the insurer that if a settlement is not reached, the claimant is more than willing to proceed to trial. This paperwork is called a “Pre-Trial Conference Statement” or “Stipulations and Issues”, and it lists all witnesses that will be called upon to testify, as well as the medical records and/or other evidence to be used or relied upon by each party at trial. It should be noted that once discovery is closed at the MSC and the case is set for trial, no further witnesses or exhibits can be added by either party.
If the parties settlement negotiations at the conference fail to result in a settlement, the attorneys will then appear before the judge to explain why the case cannot settle. At that point, some judges are more than willing to have the case proceed to trial if the issues are legitimate. Should that occur, then the Pre-Trial Conference Statement is submitted to the Judge for review and consideration. Other judges if they believe that the case could or should settle, will press the parties to continue settlement negotiations.
Only when all potential for settlement has been exhausted will the case be set for trial and ultimately proceed to trial, assuming there are not any issues providing good cause for the matter to be continued or taken off calendar.
If your case doesn’t settle at the MSC, one of three things will usually occur:
As you can see, what happens at a California workers’ compensation Mandatory Settlement Conference can seem simple, but is often quite complicated. Attorney Todd Tatro focuses his entire practice solely on workers’ compensation law and with representing only injured workers. He has both the skill and experience necessary to try and obtain the best outcome for you and your case. Contact Mr. Tatro today at (559) 431-0123 or online here.