by Kimetra Newton –
Workers’ compensation professionals are experts at strategizing. We often say that the goal in case handling is to choose the approach that settles the issue the fastest.
Practically speaking, however, this is not as simple as we make it seem.
Choosing the right strategy is an examination of preventative versus rehabilitative strategies. Or as some would call it: “prehab” versus “rehab.”
At the outset of handling any given issue there are a myriad of questions. For example, is this the front-end of an issue where we can take measures to avoid making the issue worse? Or is this an issue that is already on fire where the main objective is to put it out?
What about instances when there is an interplay of both types of circumstances at the same time?
I had a case where there was a psychiatric QME report that was objectionable for its failure to satisfactorily justify the findings. In other words, it was not substantial medical evidence.
Consequently the applicant’s attorney agreed to settle the case for less than the value of the report and the settlement included ancillary issues they could have pursued.
SEIZING THE DAY AND SETTLING
It was the poet Horace who coined the term, “seize the day,” which is synonymously known in Latin as “carpe diem!” I found one definition of this term that I quite like. It said, carpe diem means that if there is an event that you’ve been dreaming of attending, and you have an excellent opportunity to do it, then you should go do it instead of making excuses to postpone it for later.
In the world of workers’ compensation, we dream of going to the negotiation table with opposing counsel and settling the case.
After all, the longer a case stays open, the more exposure that accrues. Also, just because you waive an issue does not necessarily mean you gave the other side “the whole boat”. Outcomes cannot be guaranteed and there are costs associated with further discovery and litigation.
This is the “prehab” thought process at its finest.
REHAB VIA DISCOVERY CAN BE GOOD, BUT BUYER BEWARE
On the other hand, there is the Latin phrase, “caveat emptor” or “buyer beware!” This thought process would naturally defer an opportunity to settle if a medical report does not strictly comply with case law and the AMA Guides.
I suggest that caveat emptor presumes that the so-called “excellent opportunity” is at the other side of interrogatories, depositions, cross-examinations, subpoenaed records, hearings and trial.
In other words, by “buying” the additional discovery, sometimes that additional discovery can cost a lot to get there. The workers’ compensation professional should beware of problems that might arise later if discrepancies in the record are not challenged today, and if the case doesn’t settle, that additional discovery needed to achieve your goal could be quite costly and timely.
Still, sometimes it is worthwhile to do that in order to “rehab” an issue like a poorly-reasoned medical report.
This is the “rehab” thought process at its finest.
PREHAB AND REHAB
The good news is that these approaches are not necessarily mutually exclusive. You might start off in one direction and then turn a corner to go in the other. Or you might pursue both approaches contemporaneously.
Ultimately, the decision to settle in my psychiatric case boiled down to the fact that the client felt that settling best served their interests. In workers’ compensation, the clients are the stars of the show, and they should be the decisive factor whether to choose to “prehab” or “rehab.”
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Kimetra Newton is an associate attorney at Bradford & Barthel’s Los Angeles office. If you have questions about workers’ compensation defense strategies, please feel free to contact her at 310.981.5004 or via email at email@example.com.
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