Should I settle my workers’ comp claim without a lawyer through Ombudsman/Benefit Review?

Every year, thousands of injured workers wrongfully choose to resolve their workers’ compensation claim through the Benefit Review Conference (BRC) procedure, leaving huge sums of money to which they would otherwise be entitled unpaid. Insurance adjusters frequently make an offer to settle a workers’ compensation claim suggesting that the parties go through the BRC procedure as if that process will ensure that the worker gets all that they deserve. That is not what the BRC process does and not what it is intended to do.

The Alabama Department of Industrial Relations established and maintains an Ombudsman Program to assist injured or disabled employees, persons claiming death benefits, employers, and other persons in protecting their rights and obtaining information available under the Workers’ Compensation Law. Ombudsmen are state employees who work for the Department of Industrial Relations. They are prohibited from being an advocate for any person and act as a neutral.

By law, the ombudsmen are required to meet with or otherwise provide information to injured or disabled employees, investigate complaints, and communicate with employers, insurance carriers, and heath care providers on behalf of injured or disabled employees, but only if the employer and employee agree to participate in the benefit review conference.

In conducting the benefit review conferences, the law requires that the ombudsman:

1. Shall mediate disputes between the parties and assist with the claim consistent with Alabama’s workers’ compensation statute and the policies of the department.

2. Shall inform all parties of their rights and responsibilities under Alabama’s workers’ compensation statute, especially in cases in which either party is not represented by an attorney or other representative. An employee shall be advised, in writing which shall be notarized, of his or her right to be represented by counsel and of his or her right to have any settlement of his or her claim reviewed by a court of competent jurisdiction at any time within 60 days after the date of the settlement and at the end of 60 days, it shall be final and irrevocable.

3. Shall ensure that all documents and information relating to the employee’s wages, medical condition, and any other information pertinent to the resolution of disputed issues are contained in the claim file at the conference, especially in cases in which the employee is not represented by an attorney or other representative.

4. May reschedule a benefit review conference if he or she determines that available information pertinent to the resolution of disputed issues is not produced at the benefit review conference.

5. May not take testimony but may direct questions to an employee, an employer, or a representative of an insurance carrier to supplement or clarify information in a claim file.

6. May not make a formal record.

7. May issue a statement with regard to an award of attorney fees in accordance with the amount as provided by Section 25-5-90.

While this sounds like a great process, it is fraught with peril for an employee who attends without an attorney representing his or her best interests. That is not the ombudsman’s job. Workers shouldn’t get sucked into the process thinking that it will protect them. Only an experienced workers’ compensation lawyer can do that.