If you are making a workers’ compensation claim because you were injured while working, it is important to understand the different paths your case could take as it proceeds. In this article, we discuss workers’ compensation mediation and how it might benefit your claim.
The simplest and most ideal option is if your employer agrees to provide your workers’ compensation benefits after your claim is made. For more information about what benefits you may be entitled to, check out our post about the types of workers’ compensation benefits here.
Ultimately, if you are unable to reach an agreement with your employer about compensation for your claim, Code of Virginia § 65.2-704 entitles you to a hearing in front of the Workers’ Compensation Commission where a member of the Commission will rule on any disputed issues and determine an award of benefits consistent with their ruling.
However, in 2012, the Virginia Workers’ Compensation Commission began offering Alternative Dispute Resolution (ADR) services. This opened up an additional, and often highly beneficial, opportunity for parties to resolve a disputed workers’ compensation claim. Currently, Virginia has 20 certified mediators who are employees of the Commission and specialize in this particular area of the law.
What happens during a workers’ compensation mediation?
Code of Virginia § 8.01-581.21 defines mediation as “a process in which a mediator facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and reach a mutually agreeable resolution to their dispute.” Essentially, the mediator acts as a neutral third party to the dispute and helps the parties move towards settlement in a more efficient and controlled environment.
As a facilitator, the mediator will help communication between the parties proceed more smoothly. The mediator will help clarify misunderstandings between the parties, ensure that both parties are heard throughout the process, and identify or clarify legal issues that arise, among other practical functions. However, keep in mind that while identifying or clarifying legal issues, the mediator will not decide any of the legal issues—the parties control how any legal issues are resolved in a mediation.
However, a mediator can also serve in a limited advisory role by offering evaluations from his or her experience as to how the dispute may play out if the parties decided to resolve the dispute at a hearing. This type of information may help you and your attorney determine whether or not your employer’s settlement offers are reasonable, or if you would likely receive more adequate compensated at a hearing.
A mediation can happen either in person or by web or phone call. Counsel for each party will introduce themselves and their client(s) and then briefly state their side of the disputed issue(s). After both parties have introduced themselves and the issues, the mediator will speak separately with you and your attorney about your specific demand. The mediator will relay that demand to your employer and their attorney (who will be in a separate room or on a separate phone line) and speak with them about their response. The mediator will then continue to have and relay a series of conversations with the parties separately until you and your employer reach an agreement to settle for a particular amount. While the mediator is speaking with the other party, you and your attorney have an opportunity to strategize and revise your demand as needed.
There is no requirement to reach an agreement by the end of the mediation, however, if you and your employer do reach an agreement, that agreement will be binding when approved by the Workers’ Compensation Commission. All full and final mediations are subject to approval by the Workers’ Compensation Commission. The commission only approves your settlement agreement if it can find that the settlement is in your best interest or it does not prejudice your interests. Code of Virginia § 65.2-522.
When does the workers’ compensation mediation happen?
Mediation can take place any point prior to an award of benefits. A mediation will be scheduled upon request by counsel for either party, provided both parties consent. Because ADR is completely voluntary, participating in a mediation where no agreement is reached does not in any way eliminate your right to a later hearing before the Commission should you want one. If you already have a scheduled hearing, you can even obtain a continuance and schedule mediation if you decide your claim might be resolved more expediently that way.
It may be that in preparing for your hearing there is a particular issue that you would like to have resolved prior to the hearing. In the interest of streamlining hearings to only issues on which parties genuinely cannot reach an agreement, the Commission will provide mediation services for individual issues as long as the issue is appropriate for mediation when considered separately from the entire claim.
The following issues may arise in your claim and will generally be considered appropriate for issue mediation:
- Medical treatment
- Medical bills
- Average weekly wage
- Mileage
- Temporary Partial Disability rates
- Closed periods of Temporary Total Disability
- Return to work
- Cost of Living Adjustment (COLA)
How do I get the most out of my mediation?
Your mediation will be productive to the extent that you enter the process with a clear strategy in mind. In order to request mediation services through the Virginia Workers’ Compensation Commission, counsel must represent both parties. One way to maximize the benefit of your mediation is by working with an attorney who has expertise in this area of the law. Our attorneys at Osterbind Law regularly participate in workers’ compensation mediations and will work with you to develop a strong mediation strategy for your case.
The most important task when strategizing for mediation is gaining a comprehensive understanding of your case and compiling detailed documentation regarding your injuries, medical bills, time out of work, etc. While the negotiations in a mediation are more informal than a hearing, it is no less important to be able to substantiate a valuation of your claim.
In a workers’ compensation hearing, the Commission has significant discretion to weigh the evidence when making the factual determinations that support their decision. Further, the only recoverable categories of losses are medical expenses and lost wages. While there is nuance to a workers’ compensation damage calculus, all of the damages will be economic ones. Therefore, if you lack evidence to support your demand at a mediation, the risk associated with a hearing becomes considerably lower for your employer, and they will be much less likely to make a reasonable settlement offer.
Mediation is a dynamic process. As a result, a mediation is used as an opportunity to gain an understanding of how the other party values your claim. There may also be non-monetary requests by the other party that impact the negotiations, depending on the circumstances of your case. When strategizing for your mediation, we will have conversations with you ahead of time about realistic settlements and a range of acceptable settlements from your perspective.
Is ADR better than a hearing?
Depending upon the specifics of your case, the ADR process may be a highly advantageous option for you to get your claim resolved.
Thousands of workers’ compensation claims are made each year in Virginia. As you can imagine, a significant number of those claims require a hearing to resolve, and, consequently, your hearing may be scheduled much further into the future than you would hope. Preparing and waiting for a scheduled hearing in front of the Commission may take a year or more. On the other hand, the typical mediation takes about three hours or less and is often scheduled more easily than a hearing. Resolving your claim through mediation could be the difference between getting your benefits in the near future and not seeing that money for quite some time. Having the money you need to pay for your medical care and cover your bills sooner rather than later is a huge incentive for many claimants to attempt resolving their claim through mediation.
Not will you have the opportunity to receive your award sooner, but also mediation services for workers’ compensation claims are provided free of charge by the Commission. While you will still have to pay attorney’s fees and other costs associated with your claim out of any award you receive, you will save costs associated with the hearing itself if your claim is resolved in mediation.
Additionally, the mediation process is much more informal and can reduce some of the anxiety or uncertainty you have concerning a more formal legal proceeding like a hearing in front of the Commission. At Osterbind Law, we do everything we can to put you at ease throughout the entire process of making and resolving your claim.
Hiring an attorney for your mediation
If you need an attorney to walk you through the process of making a workers’ compensation claim or help you determine whether or not mediation would be an advantageous way for you to resolve your claim, Osterbind Law is ready and willing to help. Keep in mind that in order to request mediation through the Virginia Workers’ Compensation Commission, both parties must be represented by counsel. We offer free strategy sessions for all potential workers’ compensation cases so that you will know how to proceed, no matter what route you ultimately choose to take. Contact us today to set up your free strategy session.
