Workers who are injured on the job can take months or even years before their injuries are properly healed. Many employees with severe injuries such as spinal cord damage, lost vision, or traumatic brain damage never fully heal.
In workplace injury cases, the initial medical goals are to treat any emergency conditions, make a proper diagnosis of the worker’s injuries, and develop a treatment plan. The physicians should also explain to the patient the long-term prognosis for their medical condition. The employer’s insurance carrier (unless the employer is self-insured) is required to pay for all necessary medical care to help the worker improve physically and emotionally – as much as possible.
A major medical and legal determination and milestone in an injured worker’s case is when he or she finds out if the worker can return to his or her job. Another important determination connected with this is whether the worker has reached maxim medical improvement (MMI).
MMI is the point where additional medical care is not reasonably likely to improve the health of the worker. Additional surgeries aren’t likely to help and additional therapies aren’t likely to help. MMI does not automatically mean the end of medical care because some injured workers still need physical and other types of therapy such as pain management so their condition doesn’t worsen or they can achieve ongoing pain relief.
MMI does not mean the worker is as healthy as he/she was before the accident. It just means that additional medical care won’t make a major difference. When a worker has reached MMI, then he/she should work with an experienced North Carolina workers’ compensation lawyer to review the following issues:
· Can the worker return to his/her job without or with restrictions?
· Can the worker return to work with restrictions such as not have to lift more than 20 pounds?
· Has the employer initiated vocational rehabilitation?
· Is it necessary to look for work within the now permanent work restrictions that been assigned to the injured worker?
· Has there been a permanency rating assigned by the doctor to the injured body parts?
· Additional options discussed below
Workers who have reached maximum medical improvement could also consider settling their overall claim. Workers generally can’t settle their claim if there’s the reasonable probability that continued medical care of a substantial nature would improve their condition. This does not mean medical care such as pain management or the ongoing taking of medication. MMI is typically not declared by the treating physician if additional, major procedures such as surgery are upcoming.
On the other hand, if the worker has been declared to have reached MMI, then what usually happens is the treating physician will refer the worker for a Functional Capacity Exam (FCE) to determine their permanent physical restrictions.
After receiving the results of the FCE results, that is usually a good point to think about seeking a lump-sum settlement based on the worker’s average weekly pay, the standard 2/3rds adjustment of the pay, the number of weeks they can still receive pay, (which is usually the remainder of 500 weeks if they are under an Award or under an Accepted Claim) their likely future medical bills, and other factors.
In North Carolina, a settlement agreement in a workers’ compensation case is called a Clincher Agreement. In Virginia, it’s simply called a Full and Final Settlement. Once you accept the lump sum payment as a settlement, upon entry of the Settlement Order by the Workers Comp or Industrial Commission, your rights to income payments due to a temporary total or temporary partial disability generally stop, as do your medical benefits.
There are a lot of pros and cons to settling your case once you’ve achieved MMI:
· If you settle your claim, you get the funds now. You then control how the funds are invested and what you can do with the money.
· If you were to die, if you have an Open Workers Comp case, the funds would simply stop and your family or heirs would receive no benefit. If you settle, the money is yours to leave to whomever you want.
· A danger in settling the case is that you can’t come back later and ask to reopen the case. If there is a likelihood that you will need future medical care because your condition will likely worsen or because you need the care to keep your health at the same level – then:
o If you settle your case, you also settle how much will be paid for these future medical bills
o If you keep your case open, then if the medical expenses become more than you expected, you can demand payment for these new medical bills as they occur.
Additionally, as noted above, the worker can seek an impairment rating which can result in income payments based on the type of injury the worker has the severity of the injury. The severity of the injury is based on an impairment rating typically expressed as a percentage, and that rating is then translated into a number of weeks of payments, all set forth in the statute books. Typically, the treating doctor will assign an impairment rating based on the workers condition and standard medical guidelines such as those of the American Medical Association or the North Carolina Industrial Commission.
A common misconception is that the permanency ratings are very important in valuing a worker’s comp settlement. If one is unable to return to his or her occupation due to the work injury, then that is certainly not true. Impairment ratings are really only relevant in terms of settlement discussions in cases where the injured worker has RETURNED TO WORK at the same or higher wage as the pre-injury job.
If the injured worker is unable to return to his or her occupation, in most cases, the impairment rating is not relevant to settlement discussions. This is because one cannot get more than 500 weeks of benefits except in rare cases. The ratings cannot ADD to the 500 weeks and one cannot get ratings money at the same time one is getting weekly checks for workers comp. So, what becomes relevant is how many weeks remain of the maximum allowable weeks of 500 weeks. Usually, the impairment ratings, unless there are extremely severe injuries to multiple body parts, are not going to come anywhere close to the remainder of the 500 weeks. So that number—the number of remaining weeks of the 500 weeks times the weekly workers comp check—becomes the most relevant number.
Reaching your MMI does not mean your disability benefits end. They continue as long as the law allows, meaning unless you settle your claim or return to a job paying the same or higher wages as you had before you were hurt.
Covered injuries are assigned a number of weeks. For example, the loss of an arm is assigned 240 weeks. If you can still use your arm but not as much as before the accident, the treating doctor will assign an impairment rating to reflect the degree of loss. If the impairment rating is 20% that would equate to 240 x .20, or 48 weeks. Then if your average weekly income was $1,000 a week – then your comp payments are $666.67 per week. So you would be entitled to 666.67 x 48 weeks, or $32,000.16.
Workers in North Carolina have the right to challenge the impairment rating of the treating doctors by getting a second opinion which is paid for by the employer’s insurance carrier. If the ratings differ, then the North Carolina Industrial Commission may be required to decided which rating to use. No such right exists in Virginia.
If you have any questions pertaining to MMI or any other question regarding either North Carolina or Virginia Workers Compensation, please do not hesitate to contact us at Joe Miller Law.