It has been a busy few weeks here at Moore & Jensen. We’ve had a number of hearings set, had to travel to try some cases, had others settle, and are preparing to argue another case at the Court of Appeals.
Every time I request a hearing, I know that there will come a point in time when my client will need to make a decision. That decision is whether to settle the claim or proceed through litigation. This is a difficult decision for the injured worker to make, and it requires a significant amount of help from the lawyer.
I always tell my clients that the decision is theirs, because it is. I am not comfortable telling someone they should or shouldn’t settle. I am very comfortable telling them what I think the case is worth, and why I think it is worth that, but they have to make the ultimate decision.
I recently received an Opinion and Order from a judge on a case where I had worked very hard to get a semi-reasonable offer from the other side and told my client that I did not think we could win the case. My client insisted on going forward. There were two issues in the case; one was whether the claim had been timely filed and whether the employer had been timely notified of the injury, and the other issue was whether we had met medical causation. In my opinion, the medical causation was in pretty good shape, but I was concerned about whether timely notice had been given. I was able to find some evidence in the record that gave me a somewhat plausible argument that notice had been timely given, and we ultimately persuaded the judge that notice had been timely given. I was quite surprised by that but then disappointed to lose on the merits of the claim because I thought our evidence was quite good. As a consequence, my client has ended up with a lost claim and no money in his pocket, which he certainly would have had if he had settled the case.
In another case I recently tried, the main issue at the hearing was whether my client had actually injured herself at work in the way she said she did. Evidence ended up being pretty favorable on that portion of the claim. Unfortunately, her doctor’s deposition was taken three days after the hearing, and he changed his mind that the injury as described was the cause of her need for treatment, and ascribed it solely to a preexisting condition. It now appears to me that we will be very hard pressed to even make a credible argument that the claim should be work-related, much less actually win it.
In another case, I was successful in getting the insurance company to accept my client’s arthritis as a consequence of her remote knee surgery that they were responsible for. Additionally, based upon an earlier case of mine from the Supreme Court (SAIF Corporation v. Sprague), I was able to persuade the insurance company to pay for gastric bypass so that my client’s knee would improve and she could undergo a total knee replacement. Unfortunately, as a consequence of the gastric bypass, she developed a condition known as dysphagia which is when the esophagus narrows and makes it difficult to eat solid food. The insurance company paid for one procedure to expand the esophagus, but then the dysphagia recurred.
The insurance company refused to pay for the second procedure, we went to hearing and won, quite easily. The case was appealed to the Workers’ Compensation Board and again we won. The reason we won is that there is an old case, Williams v. Gates-McDonald, wherein the Supreme Court said that when treatment of a non-related condition is appropriate, the insurance company is responsible for all the effects of that treatment. The case is now at the Court of Appeals set to be argued in the near future. I’m not sure my client would have wanted to take this case to hearing had she known that it would take two years from the date of hearing to get a result.
In the meantime, a number of other cases settled, getting a benefit to the injured worker much more quickly with much more certainty.
This is all part of the discussion that every lawyer needs to have with every injured worker in making a decision to settle or try the case. The worker needs to understand and believe that the lawyer is not afraid to try the case (and I certainly am not) and that the lawyer will do whatever is in the injured person’s best interest.
I have noted from some injured workers whose prior attorneys have settled their case with them, or recommended settling in their case, without having a discussion about any of these things, leaving that injured person, frankly, worse off than if they had had a reasonable discussion about these issues with the attorney.
The advice I would have is to ask the attorney to help discern what the value of the case is, and to discuss the risks of settling, and of not settling, in order to make a reasonable decision.
Moore & Jensen