This is the text of my article which was just published in the Legal Intelligencer- Our Nation’s Oldest Legal Journal.
The Pennsylvania Compromise & Release Agreement- May The Witness Be Excused?
Black’s Law Dictionary defines the term witness as: “In general, one who, being present, personally sees or perceives a thing; to subscribe one’s name to a deed, will, or other document, for the purpose of attesting its authenticity, and proving its execution, if required, by bearing witness thereto.”
Witness, witness, witness! Everywhere witness. This fundamental legal concept is used in a wide variety of legal circumstances, whether in the execution of a will, or when we simply perceive something to take place, like a car accident. Indeed, a legal witness often supplies us with affirmation, truth, acknowledgement, or validity. However, in the context of a workers’ compensation settlement agreement, otherwise known as the Compromise and Release, I am proposing that this concept be abandoned.
By way of background, the Pennsylvania Compromise and Release is a settlement agreement that must specifically state the terms relating to an injured worker’s wage loss and medical benefits. Unlike a personal injury settlement agreement, the terms of the Compromise and Release must be reviewed before a Workers’ Compensation Judge at a hearing in which the judge must determine whether the claimant understands the full legal significance of the settlement. A stenographic record is made at the hearing.
Further, the Compromise and Release must be signed by the claimant and witnessed by two people. Alternatively, the claimant’s signature must be notarized before the hearing takes place. The witness requirement is unnecessary, however, because a claimant is asked to verify her signature at the hearing.
Moreover, questions are asked to the claimant verifying the exact terms relating to the settlement amount and the parties’ respective obligations regarding medical bills. Other questions are asked to make certain that the claimant knowingly signed the agreement, without coercion and without being under the influence of any substances which would affect her mental abilities. This process, in and of itself, is a strong safeguard to any fraud. As such, the witness requirement is an unnecessary and impractical burden since the claimant, in her very own words, authenticates her signature and verifies the terms of the agreement before a judge who hears testimony on the record.
But even if one believes that the witness requirement is a precaution that we should not abandon, there is a second impracticality — and this has to do with the form itself. Two witnesses must provide their signature on the appropriate lines of the Employee Certification page — the last of the four-page Compromise and Release. However, there are no lines for a witness to print her name or to leave an address or phone number. As such, if there is ever a dispute about a particular claimant’s signature, how will the parties or the judge track down the witnesses when the only trace is an unintelligible signature?
Moreover, having seen hundreds of Compromise and Release agreements executed at workers’ compensation hearings over an eight-year span, I have rarely, if ever, seen a claimant’s attorney secure a witness who actually “being present, perceives a thing”- namely, the claimant signing the Compromise and Release.
Instead, the claimant’s attorney normally secures his client’s signature, and subsequently finds other attorneys who are waiting for their own cases, to sign as a witness. This saves precious time in a situation where the claimant’s attorney is often: 1) juggling one or more hearings and clients, 2) reviewing the agreement for mistakes, and 3) executing the accompanying settlement documents such as a resignation or general release. It tends, therefore, to be treated as an annoying formality
With recent changes in the law requiring that considerations be made to Medicare as well as child and spousal support liens, wouldn’t it be nice to streamline, even if in a small way, the increasingly tedious process of settling a workers’ compensation case?