Home > Uncategorized > “Change of Heart” not Grounds to Rescind Settlement

“Change of Heart” not Grounds to Rescind Settlement

When you’re dealing with a litigated workers’ compensation case, depending on applicant’s counsel, the situation can get hectic at times.  Some applicant’s lawyers just have a job to do, and are eager to get a fair and speedy settlement for their clients.  Some, on the other hand, use the age-old tactic of gaining their clients no ground, but winning themselves a reputation as an unpleasant attorney to deal with.

But that’s all part of the territory and isn’t anything special.  Then you have the cases where the applicant decides to take the reins and drive the wagon train to Unpredictable Town.

Such appears to be the case in Linda Aiello v. Library Systems Services, LLC.  There, Ms. Aiello settled her case by compromise and release while represented by counsel, agreeing to a $38,000 settlement to resolve her claim.  The C&R was approved by the workers’ compensation Judge and everyone lived (almost) happily ever after.

Ms. Aiello decided to file her own petition for reconsideration, without the assistance of counsel, alleging that the order approving the compromise and release was not justified by the record.  Now, dear readers, I will allow you an opportunity to guess whether Ms. Aiello thought she was being paid too much for her claim or too little.

The theory for the petition was that, although the settlement agreement relied on the reports of the panel qualified medical evaluator (rating at 33% PD), the treating physician actually rated out to 54%.  Also, the compromise and release agreement failed to provide for future medical treatment.

The WCJ, in her report, noted, quiet aptly, that “[a] change of heart is not sufficient basis to set aside an Order.”  And the Workers’ Compensation Appeals Board seems to agree.

Of course, applicant also argued that she “did not receive [or see] a copy of her medical reports until after signing the settlement.”

Here is what your humble oft-confused blogger always wonders about these cases – if you’re alleging that your attorney didn’t do a good enough job, why are you bothering the defense?  Not to imply that Ms. Aiello’s attorneys did an inadequate job – it appears they represented her interests and secured for her a settlement.

But if she is saying that they did an inadequate job, failed to keep her informed, and settled for far less than they should have, why does the employer have to waste attorney and adjuster hours in dealing with this claim and be put at risk for more liability?  There is probably another type of insurance (it starts with the letter “m” and rimes with “pal-practice”) which exists specifically to address these issues.

Disputes between applicants and their attorneys should be resolved in the legal malpractice arena and the defense should be left out of it.  Perhaps then applicant can get a taste of a system legally stacked against her, which is the world the defense community lives in year-round and the atmosphere in which she brought her claim.

Categories: Uncategorized
  1. Chris
    June 13, 2012 at 6:29 pm

    I am so thrilled that a competent court of law in this state actually thought the claimant (aka applicant) was full of ____ (fill in the blank). Pal-practice is appropriate here. You hit the nail on the head inasmuch as the onus of responsibility in Workers’ Compensation cases in California seem to always be burdened by the employers. Evidence seems to be an afterthought. For example, insomnia, ED, worry, anxiety, etc. Really, and all of this is related to lifting a 2 pound burrito? However, I digress as usual. It is obvious that like the rest of the pool of worthy employees that the pocket of cash is the EMPLOYER! Maybe, there is another pocket out there (pal-practice). Stop the madness.

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