Worker Injured On the Job Seeks Multi-Million Dollar Settlement

An apprentice in his 30s falls from a high ladder supplied by the owner of the project where he is working. His injuries are serious, consisting of a significant fracture of his ankle and a severe nerve injury to his elbow. At the time of the fall the worker, who is single, is making more than $30 an hour and has a work life expectancy of nearly 30 years. He seeks an award of $5 million, including several million for future lost wages.

Plaintiff Attorney’s Motivation to Mediate

The plaintiff’s attorney finds the injured worker was unemployed prior to being hired as an apprentice. In his work life he can substantiate working only a few months “on the books” for apprentice wages. He has difficulty with the concept that he can become a fully licensed craftsman, and does not acknowledge that he might perform other jobs in the future.

Although the plaintiff’s attorney considers the worker’s injuries serious, the attorney is having difficulty managing his client’s expectations. The worker, influenced by lawyer advertising, believes he should receive many millions of dollars in settlement. The plaintiff’s attorney suggests to all parties that a neutral third party, an attorney with a background in personal injury cases, help resolve the case. Together they select James Morris to mediate the dispute.

Key Issues in Mediation

Although liability is clear under labor law, there are three key questions to consider:

• Can the plaintiff work at other suitable employment after being retrained?
• Did the plaintiff’s prior work experience present sufficient evidence to create a basis for future lost wages?
• What information could be presented to the plaintiff so that his attorney can deal more realistically with the case?

Mediation Process

Morris holds an initial general meeting with the owner’s liability carrier representative and attorney, the employer’s representative and attorney, and the plaintiff and his attorney. He then has the plaintiff’s attorney present the worker’s claim to everyone in the room. The attorneys representing the insurance carrier and the employer respond by pointing out to the worker in a straightforward manner why they are unable to pay the amount he seeks based on his previous work experience.

Morris caucuses with the plaintiff (and his attorney) and explains to the plaintiff that his attorney is an excellent practitioner but cannot change the facts. He points out that the basis of the law for a large award for lost wages is usually work history. Should the worker exercise his right to a trial, a jury of tax-paying citizens will probably not view under-the-table payment positively. After several hours of discussion the plaintiff understands the real basis of his claim.

Outcome

Due to the seriousness of the injuries, the parties agree to settle with the plaintiff for a large six-figure total.

The mediator receives verbal thanks for making the plaintiff aware of the “economic value” of his serious injuries and for pointing out the barriers he would have faced had he opted to pursue a trial. The plaintiff, in turn, is pleased with his settlement.