Should I settle my Workers’ Comp case at mediation?

In North Carolina, Workers’ Comp cases can find their way to mediations in a number of different ways.  If you file a Form 33 (Request for Hearing), then your case will be ordered to mediation before it will be put on the hearing docket.  If a Form 24 (Request by the Defendant to suspend benefits) was either approved or denied, then you can agree to submit to mediation before going forward to a hearing.  Or, sometimes the parties will just agree to mediate because one side (typically the defense) wants to settle.  (The parties can agree to use anyone as a mediator, but typically, mediators are chosen from a list of Superior Court Mediators).

The primary goal of mediation work out a settlement that is agreeable to both sides.  In the Workers’ Comp world, settling typically means that the injured will accept a cash payment in exchange for giving up all future benefits under the Workers’ Comp Act.  The worker will be asked to sign what is commonly called a “Clincher” agreement in North Carolina.  In addition, many employers will request a resignation and release – meaning that you will be asked to leave your job.

Whether or not you settle your case will depend, in large part, on a number of different factors such as:

  • Is this an accepted or denied case?  In an accepted case, where the Employer has already been paying benefits, they are more likely to offer a large cash settlement to get rid of the claim.  However, in denied cases, the Employer knows that the injured worker must prove their claim in court.  It is a lot harder to prove a case than it is to defend one, so the Employers are typically only going to offer what is commonly referred to as “the cost to defend” or “nuisance value” to settle the case.  This is typically only a couple of thousand dollars, and is not likely to result in a settlement at mediation.
  • Is the injured worker back at work for the employer?  If the injured worker is back at work for the employer, they are not likely to want to give up their job.  Because the employer is likely to ask the employer to resign their position, a settlement is increasingly unlikely if the worker is back to work (but not impossible).  There are cases where an employer will not ask for a resignation, but they are rare.
  • How serious were the worker’s injuries?  It goes without saying, that the more severe the injuries, the higher the cost to settle the case.  This is especially true where the worker may never be able to return to work.  The more money that the insurance company is going to pay out, the harder it will be to settle the case without litigating.
  • Does the injured worker want to settle?  This is probably the most important question, especially for clients that are receiving benefits each week.  There are certainly costs associated with remaining in the comp system.  It is important that the client have a full and complete understanding about what a settlement means to them and their future benefits.
If I am able to obtain a fair settlement for my client at mediation, I am all for it.  However, if the defense attorney wants to lowball my client in an effort to settle a case on the cheap, then I firmly believe in pressing forward.