A compromise
and release (C&R) is a way to settle your worker’s compensation claim. In
Virginia, these are commonly called Full and Final Settlements, whereas
in North Carolina, these are commonly called Clincher Agreements. These
kinds of settlements are generally used for workers who are disabled from their
pre-injury job and will likely need future, long-term medical care. There can
be settlements even when the worker returns to his/her former job – based on
the understanding that the worker will need continual funds for medical
treatments.
These full
settlements mean that the entirety of the case—both the future indemnity (some
portion of the value of the future compensation checks the worker would likely
receive), and the future medical value of the claim (some portion of the value
of the future work injury care that the injured worker will likely receive for
the remainder of his or her life) are completely resolved. In exchange for a lump
sum which represents these two sides of the injured worker’s case, once the
final settlement Order is entered by the Commission, then all of the ongoing
benefits for both weekly checks and medical stop, permanently.
There are many
considerations that you will need to review with an experienced North Carolina
or Virginia work injury lawyer depending on where your claim is:
· Have you reached maximum medical improvement? Workers should usually not consider
any lump sum settlement until they know the seriousness of their injuries.
Typically, workers should continue treating with their doctors until it’s clear
additional medical care won’t improve the worker’s health. Once the worker has reached his/her maximum
possible health, then a compromise and release may be advisable. Also, workers
who reach MMI may still need to treat with doctors so their condition doesn’t
get worse, or to simply assist with ongoing pain management.
· What is the level of your permanent work restrictions? There is a continuum of SEDENTARY, LIGHT, MEDIUM, HEAVY or
some combination thereof. Usually these restrictions are determined via a
Functional Capacity Exam (FCE). Then within the FCE, there are sometimes some
additional specific restrictions as to the injury itself. (e.g., no overhead
work).
· What is your lifelong job skill set prior to your work injury? For instance, if you have spent your
entire life in manual labor, and you are now permanently restricted to
sedentary (desk or sit-down work), it may be very difficult for anyone to find
you a job. This will make it more likely that you will finish out the entirety
of your Award and that you should receive a larger portion of your potential
future payout in lump sum. On the other hand, if you have numerous skills
outside of manual labor and you are highly educated, and you have physical
injuries, your physical injuries will likely have less effect on your future
job prospects. In that circumstance, the settlement value of your claim would
be lower.
· What is your pre-injury average weekly wage? (AWW) It’s important to know this as
your wage determines the amount of your comp checks each week (2/3rds of your
AWW) and hence, the higher the AWW, the higher the comp checks, and also the
higher the settlement value.
· How old are you? We all know that typically, severe injuries take longer to heal or may
not heal if an injury occurs at age 57 vs. age 27. In addition, it is much
harder to begin a new career with restrictions at an older age than it is when
a worker is young.
· What type of work injury do you have? Is it a partial disability or a full disability? If
it’s a partial disability, you may be able to work at another job but for
lesser pay. Full disability generally means you won’t be able to work again at
your pre-injury job, and you are either 100% disabled, or restricted to such a
degree that you have not been able to find a job within our physical
restrictions.
· Does your injury qualify for additional compensation above and beyond
being unable to work?
Some injuries such as loss of vision, serious disfigurement, or an amputation may
qualify for additional benefits. Your attorney will help you obtain a proper
medical evaluation so you can claim this additional pay.
· Are you eligible for Medicare or will you be eligible soon? If so, then you will likely have to
enter into a Medicare Set Aside agreement so it’s clear what workers’ comp will
pay for your medical bills and what Medicare will pay.
Additional
questions include:
Some of the
answers to these questions are general. Most depend on the individual facts of
your case.
The employee
and employer may have different ideas on how much medical treatment you will
need in the future. The amount that will be included in the settlement needs to
be artfully negotiated so that the worker gets the best amount. Experienced
work injury lawyers understand the legal arguments. They also work very
carefully with your doctors to fully understand what treatments, medications,
and other health care costs you’ll have. In some cases, it can be fairly clear
that the worker will need to see a physical therapist several times a month. In
other cases, where the health effects of the work injuries may deteriorate over
time (such as when he/she has a disease), it can be harder to determine what
care is needed. In other situations, the injury may be so severe that it is
clear that as the worker ages, home healthcare or attendant care will be
required, with potential significant future costs.
At the end
of the day, unless dealing with a Medicare situation, the portion of the claim
and any settlement that deals with future medical care comes down to the
comfort level and a frank discussion between the injured worker and his or her
attorney. How likely is it that the injured worker will require future surgery?
How likely is it that the injured worker will return to employment and obtain
health insurance to cover the cost of such surgeries? Are the contemplated
future medical costs based in reality or are they just “worst case scenario”
medical costs?
·
First, it
means you control the funds instead of the employer. If there’s a
settlement, you can decide which doctors you will see – you don’t have to see
the company doctors. You get to pay the doctors directly which means you don’t
have to argue about the bills with your employer or the insurance company.
·
Second,
you’re not on the defensive. You don’t have to worry about the employer
constantly trying to say that you can return to work or that you’re not looking
for work if you can work with restrictions.
·
Third, it
means you won’t need to work with a nurse case manager. While the manger
can be useful, at times, the case manager is often trying to find a way to
terminate your benefits by showing you’re not complying with the medical advice
you’re given. It also means more privacy. In a settlement, it’s just you and
your health care providers.
·
You won’t
have to work with the Vocational Counselor anymore. Let’s face it, although
vocational rehabilitation is supposed to find you another job within your
restrictions, the real game is to impair your case by tripping you up when you
forget to come to meetings or follow up on some stupid job lead that you have
no interest in. Then they drop the hammer and try to cut you off of benefits.
Settlement gets you out from under those folks.
·
It also
means that you can invest the funds if you get a lump sum payment. With a
long-term payout, you don’t have access to the funds now. With a compromise and
release, you can use the lump sum to make wise choices such as paying off a
mortgage or starting a business.
·
It means
your family has an inheritance if something should happen to you. If you
were to die during receipt of your workers comp funds from an unrelated cause,
in most cases, all payments would cease. By getting a lump sum, now that money
is in your account, available for your use, or to pass on to your loved ones in
case something should happen to you.
Then again, many insurance carriers simply refuse to engage
in such settlements and insist on an “all or nothing” approach. Either the
entire claim is resolved, or not at all.
Injured workers need to review what other benefits they may
be entitled to with time or due to a disability. Some workers may be entitled
to Social Security Disability. (SSDI) Workers may also be entitled to Social
Security retirement income when they reach age 62. They may also be entitled to
Medicare, Medicaid, or other government benefits.
situation. Who can the employee rely on for support? The education and ability
to earn another type of income needs to be considered. The severity of the
injuries needs review. The more doctors and healthcare providers the patient
requires, the harder it becomes to make an evaluation of how much money is
needed for long-term health problems. If a worker has mental health
difficulties, it can be extremely difficult to know how much psychiatric and
psychological help the worker needs.
If you have been offered a settlement in your workers compensation case in either Virginia or North Carolina, or you are considering resolving your case, or are simply curious as to whether you or a loved one's workers compensation matter is of a type that may eventually qualify for settlement, please do not hesitate to contact us here at Joe Miller Law.
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