By: Marcus Rodriguez, Associate, Orlando

 Knowing how to effectively finalize a settlement with a pro se claimant is an essential skill that decreases workers’ compensation litigation costs. Under Fla. Stat. 440.20(11), when a settlement agreement is reached with an unrepresented claimant, the claimant may appear before the JCC for a washout hearing. This is where the judge reviews the settlement in order to assure that its terms are fair, and that the claimant understands the rights he is waiving.

Scenario: You have put in the time and the effort, and finally succeed in convincing a pro se claimant to agree to a reasonable settlement offer. Now comes the washout hearing. On its face it seems rather straightforward: the judge simply wants to make sure that the settlement is in the best interests of the claimant. What could go wrong?  But then we find ourselves in a situation where the judge is giving the claimant every possible opportunity to develop some sort of last minute “buyer’s remorse.” Sound familiar?  Now the claimant is beginning to wonder whether or not he fully comprehends what settling his case actually means, and either he backs out or the judge does not approve.  That feeling of accomplishment has now departed. The fundamental key to avoiding this scenario in its simplest terms is thorough communication.  

In essence, a settlement is an agreement between the parties that is construed as consistent with the rules applicable to interpretation of contracts. Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla. 1985) The party seeking enforcement of the settlement bears the burden of proving that there was indeed an underlying “meeting of the minds” or mutual reciprocal assent sufficient to bind the parties. Long-Term Management, Inc. v. University Nursing Care Center, Inc., 704 So.2d 669 (Fla. 1st DCA 1997).  Therefore, to have a true “meeting of the minds,” both parties to an agreement must mutually agree upon the terms of that agreement. This is why it behooves us (both counsel AND the adjuster) to clearly explain every detail of the settlement agreement to the claimant so that there are no misinterpretations as to what the terms convey.  If a claimant displays any confusion to the judge, the judge could disapprove the agreement.  This would prolong the settlement process, thus exposing the employer/carrier to further litigation costs, and potentially ongoing medical treatment costs.  

Additionally, it helps for the adjuster to echo what each stage of the case signifies to the claimant.  It is also advantageous for defense counsel to meet with the claimant beforehand to explain the settlement papers and the hearing procedure. This provides an opportunity to answer any questions or concerns of the claimant, before they arise in the hearing and detonate the settlement. This also gives defense an opportunity to let the claimant know about some of the questions and procedures of the judge. Often by telling the claimant in advance that the judge’s questions may seem to suggest backing out of the settlement, this is simply a tactic to ensure the settlement is desired. By treating the agreement as a binding contract, we can assure ourselves that we have done our due diligence in establishing a mutual understanding of the terms of the settlement.

It is also important to note there are additional requirements for the pro se settlement documents themselves.  For compensable claims under Fla Stat. 440.20(11)(b), Rule 60Q-6.123 requires that the following be provided: (1) notice to the employer, (2) a maximum medical improvement (MMI) report establishing the date of MMI, (3) a permanent impairment rating, (4) information concerning the need for future medical care, and (5) an estimate of the cost of future medical care or an explanation as to why an estimate cannot be reasonably obtained. For claims settled on a denied basis under Fla Stat. 440.20(11)(a), instead of the foregoing items, a notice of denial (DWC-12) is required.  Remember that these are not mere suggestions, but precise rubrics intended to be followed. Failure to provide the requisite items may also lead to delay in attaining settlement approval, thus leading to an increase in costs to the carrier. 

In a nutshell, let’s not get ahead of ourselves.  See your way through the pro se settlement to the very end.  The simple task of communicating and following up can end up being the difference between a job well done and a complete blunder at the finish line.