The OSA Conundrum

A benefits delivery system is the way we characterize the workers’ compensation system. Yet getting those benefits to injured workers, in a system riddled with venue-specific rules for settlement document submission, can create a delayed, drawn-out benefit delivery process.

I am referring to the recent influx of Orders Setting Aside/ Suspending (OSA) Compromise and Release settlements. ?It’s no secret that a settlement that is filed and approved in one venue, might not be approved at another. The lack of consistency between venues can be alarming.

Settlements set aside, absent true adequacy issues, are detrimental to all parties involved. For the WCJ, there is an additional strain per added tasks and hearings to address the OSA. For the injured worker, the funds they thought were coming shortly after signing the settlement documents, are held up for months. For the carrier, a file that was supposed to be closed, now has to stay open.

Practitioners can and should ensure certain processes are adhered to, in order to facilitate approval of settlement documents. A checklist of sorts, is offered to assist you in this endeavor. ?After all, the best file, is a closed file.

KNOW YOUR AUDIENCE

First and foremost, know the rules of the venue you are seeking board approval from. Appeal to colleagues about their experience seeking board approval at a particular venue. Having a roadmap of rules to comply with, before you submit settlement documents, is key.

WET SIGNATURE

Secondly, are you getting a wet signature on your settlement documents? What does “a wet signature” actually mean, at a particular board? Believe it or not, it varies from board to board. ?Actual ink may be required rather than a digital copy of a signature, in some venues.

Are the witness signatures dated the same day as the injured worker’s signature?? This matters. Are there two witness signatures?? Witnesses are not required if a notary public is used.

TIP: When an interpreter is used, ensure the interpreter has signed your addendums including the QME waiver. Often the addendums do not have a pre-printed signature line for the interpreter.

ADEQUACY LETTER

Prepare a detailed adequacy letter explaining why the settlement is fair and should be approved, citing all applicable evidence. Recap the facts of the case and outline the discovery done. Contact EDD and document you did so. Mention if benefits were paid or not and that a benefit printout was filed. Mention whether you secured a signed QME waiver if that is at issue. If an injured worker is not represented, discuss if I&A was contacted.

TIP: If your case is denied and you have no medicals, consider preparing a separate “offer of proof” statement. A Southern California WCJ recently asked me for this within his OSA.

VOUCHER

What are you saying in the settlement document regarding the voucher? If you are disputing the voucher, have clear language explaining the voucher is disputed in the comments paragraph of section 9. Consider whether you should or should not initial the voucher line in section 9.

PROPOSED ORDER

Prepared a proposed order, to make the WCJ approval process fast and easy.

TIP: Do not write the word “proposed” on the proposed order so that the order can just be signed without further editing needs. A Southern California WCJ suggested this.

EVIDENCE

File medicals and a benefits printout. Include your rating strings in either your adequacy letter or in the settlement documents directly. Consider if additional evidence should be filed if your case has unique circumstances. Most importantly, put yourself in the shoes of the reviewer and consider if you have supported your request.

IN-PERSON V. ELECTRONIC

Consider an in-person walk-through versus electronic filing of the settlement documents in a difficult venue. Consider if opposing counsel should appear at the walk-through to help justify the settlement.