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.
The impairment
rating is essentially based on whether your type of injury is covered by
the North Carolina statutes – at NC Workers
Compensation Act 97-31.
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.