In our continuing series of answers to frequently asked questions about work injury claims in North Carolina, here are more questions and answers. As with all workers’ compensation cases, the best course of action is to contact an experienced work injury attorney. Each state has different rules. All answers have some exceptions which depend on the facts of your case.
How does the mediation process work in a North Carolina Workers Compensation case?
Mediation-also known as “alternative dispute resolution,” is an informal process where the parties to a case attempt to resolve the case, usually via negotiation of a full and final settlement. In North Carolina, the reaching of such an agreement has traditionally been known as a “clincher” agreement.
In North Carolina, about 70% of cases are resolved at a mediation conference which helps to save time and can save costs. If the case can’t be resolved, then the case is heard before a Deputy Commissioner of the Industrial Commission. Normally, your lawyer and the employer’s insurance carrier will choose a mediator from a list approved by the North Carolina Industrial Commission. If the two sides can’t agree on a mediator, then the North Carolina Industrial Commission will appoint one. Each side shares the cost of the mediator. As the NCIC says on its website, the employer’s insurance company will usually have a lawyer, so it’s in your best interest to have a lawyer fighting for you.
The mediation is held at a mutually agreeable location, which may be at either attorney’s office, the mediator’s office, or a third party’s office if all of those are inconvenient. Mediation is a relatively informal process. The mediator, usually an attorney familiar with workers comp, will begin by explaining the process, and what his or her role is.
Each side then gives a presentation, outlining what evidence they will present if the matter proceeds to hearing. The plaintiff does not have to testify and there are usually no witnesses.
Once those presentations are made, the parties usually then separate into two separate rooms and the process of negotiation begins. Depending on the size of the case and the willingness of the parties to resolve the claim, the mediation process can last from a half hour to an entire day. Your attorney may occasionally pull out pieces of evidence or medical records for the other side to review that might “loosen the purse strings” at various stages of the discussion, but other than that, the process is a bit like buying a car. A lot of back and forth on the numbers.
At the end of the negotiation, one of two things will occur. Either the mediator will prepare a mediation agreement, or he or she will declare an impasse. If an impasse is declared, that means the parties were unable to reach an agreement, and the matter will proceed to hearing at an upcoming date.
The Mediation Agreement.
The Mediation agreement is a short summary of what the parties agreed on at the mediation. It is drawn up by the mediator and signed by all parties before anyone leaves the location of the mediation. It is not the final agreement; however, what is advantageous about a mediation agreement is that in North Carolina, it is recognized as a legal document. In other words, should something happen to you, the agreement obligates the defendant to pay your estate as set forth in the agreement. If also puts into place an obligation of the defendants to send a completed clincher agreement for your attorneys’ review within 30 days. This is one of the reasons we like mediation in North Carolina. If the parties can resolve the claim, you leave the proceeding with a tangible, enforceable, legal document, not just a “promise.”
How does a clincher agreement work?
A clincher agreement is an overall settlement of a worker’s claims – past, present, and future. Once a clincher agreement is completed and signed, there’s no do-over. It is the document that the defense lawyer will send to your attorney if the mediation or other negotiation reached a successful conclusion.
The fundamental basics of a clincher agreement are:
- The worker receives a lump-sum one-time payment (some portions of the agreement, such as the medical portion, may be paid out in increments over time, but that is for another discussion)
- The worker releases the employer from any further liability-both as to the medical portion and indemnity portion.
- All clincher agreements must be approved by the North Carolina Industrial Commission
The NICI will review the agreement to make sure it complies with Rule 502 which provides that approval requires that:
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- Where the employer admits it has a duty to pay worker’s compensation benefits – “the employer or carrier/ administrator undertakes to pay all medical expenses to the date of the agreement.”
- Where the employer denies liability, “the employer or carrier/ administrator undertakes to pay all unpaid medical expenses to the date of the agreement. However, this requirement may be waived in the discretion of the Industrial Commission. When submitting an agreement for approval, the employee or employee’s attorney, if any, shall advise the Commission in writing of the amount of the unpaid medical expenses.”
- The employee knowingly and intentionally waives the right to further benefits under the Workers’ Compensation Act for the injury which is the subject of this agreement.
- That the employer or carrier/administrator will pay all costs incurred
- That no rights other than those arising under the provisions of the Workers’ Compensation Act are compromised or released.
- Work status issues be addressed. The clincher agreement should indicate whether the employee “has, or has not, returned to a job or position at the same or a greater average weekly wage as was being earned prior to the injury or occupational disease.”
If the employee hasn’t returned to a job at the same or greater wage (as prior to the workplace accident or occupational illness), the clincher agreement should state whether the employee “has, or has not, returned to some other job or position, and, if so, the description of the particular job or position, the name of the employer and the average weekly wage earned.”
The clincher agreement should then also “summarize the employee’s age, educational level, past vocational training, past work experience, and any impairment, emotional, mental or physical, which predates the current injury or occupational disease. The parties will be relieved of this duty only upon a showing that providing such information creates an unreasonable burden upon them.”
“This subsection (the part about returning a job or new position) of the Rule shall not apply where the employee is represented by counsel or, even if the employee is not represented by counsel, where the employee certifies that partial wage loss due to an injury or occupational disease is not being claimed.”
- Report submissions. “All medical, vocational, and rehabilitation reports known to exist, including but not limited to those pertinent to the employee’s future earning capacity, must be submitted with the agreement to the Industrial Commission by the employer, the carrier/administrator, or the attorney for the employer.”
- Signatures. The employee, employer and lawyers of record must all sign the agreement.
- Timing requirements. Rule 502 provides for timing requirements your North Carolina work injury lawyer can explain.
The proposed clincher agreement is typically drafted by the defense attorney in North Carolina, and emailed to your lawyer.
A skilled North Carolina work injury lawyer will explain all of the items set forth in the clincher agreement and also make sure that certain language is included to protect you—for instance, if you wish to file for Social Security Disability, certain language must be in the clincher agreement or you could be prevented from obtaining your SSDI benefits for a very long time.
Once your attorney says it’s ok, he will review the agreement with you and have you sign it. After that, the signed agreement is returned to the defense attorney for filing with the NCIC, along with your attorney fee agreement with your lawyer.
If the clincher/settlement agreement is approved by the NCIC, they will issue and typically fax to both parties a settlement Order, setting forth the amount agreed upon and the attorneys’ fees.
After that, the worker’s comp carrier has up to 47 days to mail out your settlement check to you. A separate check is made out for your portion and the portion representing attorneys’ fees.
Attorney Joe Miller understands that you may be anxious to settle all your claims at once. He’ll guide through the settlement/clincher process if you have reached your maximum medical improvement. He’ll review your past and future medical expenses and your past and future wage loss issues. For help filing and resolving your workers’ compensation case, call attorney Joe Miller at 1-(888) 694-1671 or use my contact form to schedule an appointment.
