Yearly Archives: 2016

I just want my day in court. That’s reasonable, right?

Workers' Compensation

It is a very normal sentiment. But workers’ compensation is not like the kind of court you see on television or read about in the newspaper. The Industrial Commission has limited authority and one of the key things it cannot do is probably what many people whish they could do: order a lump sum payment to compensate your for future losses. By law, they cannot do it.

Looking at what the Industrial Commission can award it makes sense to divide cases into denied claims and accepted claims. In a denied claim the Industrial Commission has the authority to award you all the past weekly wages and the cost of your medical treatment. Whatever you should have gotten you will receive as a single lump sum. The Industrial Commission then may require the adjuster to continue paying you weekly and continue sending you to the doctor. If your doctor has already given you a rating the Industrial Commission may award you that rating. The Industrial Commission cannot order defendants to pay you for what you expect to lose in the future due to lower wages and they cannot order defendants to give you $10,000.00, $50,000.00, or more even just $1,000.00 for future medical treatment. They can only order defendants to pay for those as they are incurred.

If you have an accepted claim the Industrial Commission’s powers are even more limited: they can required the insurance company to continue paying you weekly or pay you your rating. They can also order ongoing medical treatment. They cannot order a lump sum payment for future losses.

The other thing to keep in mind about your day in court is that it’s not really a day! You will have a hearing before a deputy commissioner on a specific day. The lawyers will then be given 60 days to talk to your treating physicians. After that the lawyers will have another 30 days to submit written arguments to the deputy commissioner. Once the Industrial Commission has received all of the information the deputy commissioner usually takes 90-120 days to issue a decision in the case. Realistically your day in court will not be over for six to seven months.

How long do workers’ compensation claims last?

Workers' Compensation

The overwhelming majority of claims are over within a year. Those are the claims where, fortunately, there is no or little lost time from work and there is no permanent disability.

If your claim is denied the best estimate is that it will take a year to get a decision from the Industrial Commission. It may be quicker, but not a whole lot quicker. An appeal by the insurance company will add at least another six months to that.

You are entitled to lifetime medical benefits and, of course, you are entitled to be paid disability for 500 weeks from the date of your injury. In some very limited cases you may receive disability for life. (For injuries occurring prior to June 2011 lifetime benefits were much more common.)

Most of the claims that we handle involve people who have permanent injuries. Most of these folks return to work, although many do not return to their old line of work due to those injuries. As a practical matter, it is difficult to settle these cases until your medical condition stabilizes – that is, you reach maximum medical improvement. While nothing says you cannot settle prior to that you can be sure that the insurance company will offer you smaller sums of money along with their confident prediction that you will have a 100% recovery and move to a new job which pays even more than your current job. That would be lovely… if it were true. We will want to err on the side of caution and assume that you’re going to have a significant wage loss and incur substantial medical bills in the future. Basically with so much uncertainty in a case it is difficult to settle it.

Realistically you need to wait until after maximum medical improvement to settle. How long that may take depends on your doctors. Once you are at MMI we can talk settlement with the other side. Things can be wrapped up fairly quickly after that.

What is a Medicare Set Aside Agreement?

Workers' Compensation

Medicare Set-Asides are phenomena that has come into full force in the last several years. In the old days if an injured worker was on Medicare and his workers’ compensation claim was still open it was pretty common for the worker and the insurance company to settle the claim. Medicare got stuck paying for all the future medical treatment. By “Medicare” we mean the taxpayers of America.

Washington, D.C. got wise to this gambit and now requires that a portion of the settlement be “set aside” for future medical treatment. Once that money is used up Medicare will pay for any additional necessary treatment even if the treatment is related to the workers’ compensation claim.

In larger cases, those involving settlements over $250,000.00, a division of the Social Security Administration has to review the Medicare Set-Aside Agreement to ensure that Medicare’s interests are protected. The problem with this is that we are required to ask the government how much money they would like to take from you. All too often the answer is “more.”

From the insurance company’s viewpoint they don’t necessarily care how the settlement is divvied up between you and Medicare. The adjuster has a certain amount of money to spend on a case and that’s it. The problem arises if Medicare wants too much. Without enough left over you may have no interest in settlement.

It’s important that Medicare be given the proper medical records so that a fair and reasonable estimate may be made. This is all quite complex and usually the job is given to independent companies who specialize in drafting Medicare Set-Aside Agreements.

What happens when I settle?

Workers' Compensation

It depends exactly what you mean by “settle.” If you take the rating in your case then you’ll sign an Industrial Commission form and the adjuster will send it into the Commission for approval. Once it is approved the insurance company will pay the rating out to you. This usually occurs over a period of weeks however sometimes the adjusters are willing to do it in a lump sum.

In this situation you are still entitled to medical treatment. We recommend at least an annual visit to the doctor to make sure your condition is stable. This also keeps the claim active with the insurance company.

If you enter into a complete settlement, or clincher, then you’ll sign a lengthy document. That settlement agreement will go to the Industrial Commission for approval. Once approved, the adjuster must pay you out promptly. Unless you’ve agreed to different terms these settlements are paid out in a lump sum.

While it is occasionally possible to settle only the portion of the case involving weekly checks and leave the medical portion open that doesn’t happen often. In all honesty we’ve found adjusters very difficult to deal with when there is ongoing medical treatment. It seems that because we don’t have a lot of leverage over them in terms of future weekly checks they get a bit slack. Frequently, we’ve needed to go to a hearing to enforce the treatment that was promised by them.

Workers’ Comp settlement, can I get out of it?

Workers' Compensation

This question: “I settled my Workers’ Comp case, can I get out of it?” calls for our favorite lawyer answer: it depends.

It depends on what you mean by “settled.” If the North Carolina Industrial Commission has approved a complete settlement and you’ve received money already then no, you cannot get out of the settlement.

On the other hand, if your “settlement” was payment for your rating then you are still entitled to medical treatment in many situations. While we’ve seen adjusters try to tell injured workers otherwise they are often wrong.

If you went to a mediation and reached an agreement at the mediation and signed a Mediated Settlement Agreement form then the defendants can go to the Industrial Commission and try to enforce this agreement. It is generally unsuccessful to argue that you were under duress or confused when you signed it. The better approach is to argue the Industrial Commission shouldn’t even approve the agreement because it is patently unfair. That has some, but not a great, chance of success.

If you just made a verbal deal you can probably get out of that. But understand that if you do so there’s probably little likelihood of getting another or better deal anytime soon. Many adjusters and defense attorneys will simply decline to deal with you because they suspect you may back out of the new deal as well.

If you’ve been offered a settlement, by all means call us before accepting it. We are happy to discuss it with you and let you know our honest impression. It may be a good deal, a great deal, a fair deal, or an awful deal. We’ll tell you what we think and if there are any ways to improve it. With 25 attorneys and over $275 million is Workers’ Compensation awards and settlements, we can advise you on getting the benefits you deserve.