By Judges Pamela B. Johnson, Lisa Lowe Knott and Dale Tipps
Attorneys love certainty. They like to tell their clients what will happen, rather than what they think will happen or what should happen. Ambiguity drives them crazy.
This perhaps explains why closed medical benefit settlements are the source of much weeping and gnashing of teeth among the bar. Several attorneys have expressed frustration regarding closed med settlements in the Court of Workers’ Compensation Claims. While we cannot guarantee certainty, we thought it might be helpful to identify some issues regularly encountered with proposed settlements.
DISCLAIMER: We cannot guarantee certainty. The following is not an exhaustive list, and your attention to these details will not guarantee a successful approval in every instance. Each case is unique and must be evaluated on its own facts. Each judge is unique and may evaluate facts differently. What merits approval in one case, might not result in approval in another situation. Past performance is no guarantee of future results. Individual results may vary. May cause drowsiness.
For starters, put yourself in our shoes. Section 50-6-240(a) provides it is the judge’s duty “to examine the proposed settlement to determine whether the employee is receiving, substantially, the benefits provided by this chapter.” The judge must, therefore ,determine the employee is receiving substantially, not just the disability benefits, but also the medical benefits to which she is entitled. That is, does the settlement amount roughly equal the related medical expenses that are likely to be necessary over the employee’s lifetime?
The parties must present facts that support this determination. Rule 9 of the Court’s Practices and Procedures suggests: “In cases where the Employee has agreed to close future medical benefits, the parties may attach a written statement from the treating physician stating that no further medical treatment is anticipated, or documentation of the anticipated cost of future medical treatment.”
While often the best practice, a separate statement from the doctor is not always necessary. Sometimes the likelihood or expense may be self-evident, such as in the case of minor injuries or some amputation claims. Or, occasionally this information is contained in the medical records.
Conversely, we receive settlements often that contain one or more of the following rationales below for closing meds. Attorneys offered these rationales in actual cases.
Again, there are no absolutes – we are not saying our judges will never approve a settlement agreement containing one or more of these. It is highly likely, however, that settlement agreements with these issues might result in delays, requests for additional information, or denial. This is especially true if an employee is unrepresented.
Examples of What Not to Do/Say:
“It is in the Employee’s best interest to close out medicals because he has reached maximum medical improvement and no further medical treatment is necessary.”
The employee reaching MMI is not a valid justification for the closure of medicals. The employee is not a physician, so just because he does not think he will need future treatment does not mean that will be the case. In this case, the doctor said the employee may return as needed. There was no opinion from the treating physician stating “no further medical treatment is necessary.”
“The parties agree that it is in the best interest of the Employee to close out his future medical benefits since she is no longer living in Tennessee.”
This is not a valid reason, since the employee would be entitled to future medical benefits even if she were no longer living in Tennessee.
“The parties agree that it is in the employee’s best interest to close future medical benefits because the employee is doing very well and has been released to return as needed.”
Simply because the employee is doing well at the time of the last office visit does not mean there will be no need for future medical treatment. In this case, based upon the employee’s age and the incurred medical expenses to date, it did not appear that the consideration offered would be sufficient to cover the cost of additional future medical care, if any is required.
“It is in the employee’s best interest to close the right to future medical treatment because no active treatment has been recommended.”
The treating physician released the employee to return as needed. Just because no active treatment is ordered at the current time does not mean there will not be a need in the future.
“It is in the employee’s best interest to close medical because the employee wants to direct her own care.”
The order just said she wants to direct her own medical care. That alone is insufficient. The parties need to indicate whether the consideration being paid is sufficient to cover the cost of anticipated future care.
“It is in the employee’s best interest to close future medical benefits because the authorized treating physician does not recommend any treatment.”
This is helpful information. However, you should make sure the medical records you submit actually match the language of your settlement agreement. In this case, the medical records stated, “The patient is dispensed a pamphlet on shoulder arthroscopy. She would decline surgery currently as her new job would preclude surgery at this time.” It appeared that the ATP suggested shoulder arthroscopy but the employee was unable to proceed with surgery now because of new employment. If correct, then the amount being paid was insufficient as it would not cover the cost of surgery.
Examples of What to Do/Say:
Again, these examples are from actual cases. One is long; one is fairly succinct. Both got the job done.
“It is the Employee’s best interest to close out future medical on this matter. Fourteen weeks post-rotator-cuff repair, the authorized treating physician stated Employee was ‘essentially released’ and could follow-up as needed. The ATP requested a follow-up appointment ‘in another couple weeks’ in order to a final check on Employee’s condition. Employee then returned four weeks later for a repeat evaluation. At this visit, the ATP stated Employee is ‘doing well’ and ‘continues to make progress with his therapy.’ The ATP released the Employee ‘back to full activities’ and did not request any further follow-up appointments. As such, Employee does not have any further medical treatment planned and does not anticipate any for the future. The parties anticipate the amount paid to close future medical benefits will adequately cover the cost of future medical treatment, if any is required.”
“The Employee has not sought medical treatment for this injury in more than one year, and no additional treatment has been recommended. The amount being paid to close future medical benefits takes into consideration the Employee’s life expectancy and the projected treatment costs.”
In the past, we have emphasized to attorneys that settlement approvals are court appearances. Treat them as you would an evidentiary hearing before the Court; in other words, be prepared. Your proposed settlement is more likely to be approved if it is evident to judge that you have carefully drafted the documents and anticipated any potential issue the judge might raise.