Elmira Workers’ Compensation Lawyer Explains Settling Workers’ Compensation Cases
November 16, 2008 10:10 pm NY Laws and Cases, NY Workers Compensation
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I am frequently asked about settling of Workers’ Comp cases. The question of whether or not to settle your Workers’ Comp case is an individual choice that involves a lot of factors. However, I’ll address a couple of important points that touch on the concerns I see raised by folks on our blog and in my practice.
An important thing to keep in mind about settling a Workers’ Comp case is that settlement is voluntary for both parties and the insurance company is only going to seriously consider settlement for the amount of their liability, which probably doesn’t come close to your loss. Insurance companies evaluate everything in terms of dollars and cents so if a settlement doesn’t make economic sense, they’re not going to be interested.
Insurance companies are generally interested in settling for around 5 to 5 and 1/2 years of your payments. On occasion, we can negotiate higher, but 5 to 5 and 1/2 years is pretty much the ballpark. A couple of reasons for this are that the insurance company is looking forward to a time when they may pass liability for your claim on to a state fund or they find another way to get out of paying you. See NY Workers’ Comp and Labor Market Attachment Revisited.
The most important point about settling your Workers’ Comp claim is to NOT settle before you’re at maximum medical improvement. If your injury is recent, insurance company representatives may be hounding you to settle. The overwhelming majority of settlements settle both lost wage payments and medical benefits. I advise our clients to NOT consider settlement of their claims until their work injury is at maximum medical improvement.
Please see Jim Reed’s blog post “Attorney’s Fees in N.Y. Workers Compensation Cases” for some great comments related to settling Workers’ Comp cases.
I would be happy to hear any questions you may have about settling your Workers’ Comp case.
Thanks for reading,
Eric
___________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Social Security Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com
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February 24th, 2009 at 5:44 am
Hello Eric,
I read your blog, but I have some further questions, first is So there is no time limit to settle a case? and What is the next step if insurance company denies a proposal? and do insurance companies request a IME prior to accepting or denying a proposal? last question Can a injured worker deny treatment such as physical therapy, more injections etc?
February 24th, 2009 at 7:49 am
Hey Keith,
There is no “time limit” to settle a Comp case and I wouldn’t recommend considering it before you’re at maximum medical improvement.
Settlement is entirely voluntary for you and the insurance company. If the insurance company declines to settle for what you’ve demanded, your options are essentially to not settle or to decrease your demand. However, if your case is amenable to classification, the threat of a permanency finding can make settlement more attractive to the insurance carrier.
The insurance carrier is entitled to have you examined by a so-called independent medical examiner. See my blog post on independent medical exams at http://www.zifflaw.com/NYInjur.....dical-exam
You certainly have the right to decline medical treatment. This like everything else is governed by reasonableness. There wouldn’t be any ramifications if you declined injections or surgery; however, for example (and this is an extreme example), if you declined to have a simple splinter removed, and you have the right to do that, but the consequence may be that you may not be found to have compensable lost time for any disability related to refusing to have the splinter removed.
Thanks for reading our blog and for your questions,
Eric
___________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Social Security Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com
May 5th, 2009 at 6:28 am
I am on w/c at $400wk. I just received a settlelment offer from the insurance company permantly partially disabled aww.3899.87 all trs made permanent 12/31/08 to date@400 pd;ccp @ 400 ppd symptomatic treatment authorized; without prejudice to 15-8; there is no voluntary withdrawal from labor market. case closed.
English please!! What does it mean?
is it a good offer or not?
thank you for your time
Bob
May 18th, 2009 at 5:30 am
I was recently offered 100,000.00 to settle under section 32 and then had a reduced earnings hearing where they reduced my payments then the insurance company offered LESS Should I fight this? Will a judge decide on the amount? I am permanent 50% disabled and have had three operations.
May 26th, 2009 at 1:07 pm
Hey Bob,
Sorry it has taken so long to respond. I’ve had some technical problems posting to the site.
It doesn’t sound like a settlement offer from the insurance company at all. What you’ve got sounds like a decision of the Workers’ Compensation Board finding you to be permanently partially disabled, continuing payments at $400 per week, and making a few other findings.
Of course, even if you did have an offer, I couldn’t possibly tell you if it was good or not without knowing a lot more about you and your case. I encourage you to talk to a lawyer who does Workers’ Compensation.
Thanks for reading our blog and for your question,
Eric
___________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Social Security Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com
May 26th, 2009 at 1:12 pm
Hey Tom,
Sorry it has taken so long to respond. I’ve had some technical problems posting to the site.
Because settlement is voluntary for you and the insurance company, there’s no way to fight the insurance company’s offering you less because you’re on reduced earnings. I recommend you talk to a lawyer experienced in Workers’ Compensation.
Thanks for reading our blog and for your question,
Eric
___________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Social Security Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com
June 24th, 2009 at 4:06 pm
Hello my question is if i have been orderd by and orthopedic to start physical therapy do to a hip injury,and once i’ve completed my time in therapy. And if the doctor doesnt recomend surjury and now that my hip is doing a little better besides the previous stress fracture and tear in my sacroilitis joint.What’s the next step in my workerscomp case.Do i get another hearing regarding my settlement after being injured for over a year now?Will my rateing be higher or lower? Im curious because my claim was just picked up by the state fund and i have been injured and under the care of a pediactrics doctor.I’m just now able to see the orthopedics and after xrays and being examed the doctor say’s i tore my sacroilitis ligament/muscle and it’s been a year .Why would the doctor advise therapy if it’s still torn and it’s been over a year now.
June 25th, 2009 at 3:00 pm
Hey James,
If you’re at maximum medical improvement, which means that your condition is stable, and there’s no need for further therapy or medical treatment or you refuse further therapy or medical treatment, the next step is permanency. Permanency is a classification or schedule loss of use; however, if your doctor recently ordered physical therapy, you’re probably not at maximum medical improvement.
Thanks for reading our blog and for your question,
Eric
___________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Social Security Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com
November 17th, 2009 at 5:42 pm
I had a work related shoulder injury a few years ago and had to have surgery. I was paid workers comp benefits, healed and went back to work. This case is still open and I would like to know if I can close it and get a final settlement, or were the comp checks the beginning and the end of it?
November 17th, 2009 at 6:24 pm
Hey Bonnie,
It is certainly possible to settle your case; however, I suspect that you’ve never had a schedule loss of use award and that is usually the best thing to do in extremity injury cases.
There are advantages of seeking a schedule loss of use award over a settlement such as continued symptomatic medical treatment and not having to be concerned with a Medicare set aside. I encourage you to consult with an attorney; however, if you want to go it alone and decide to go for a schedule loss of use, I recommend you ask your doctor for a schedule loss of use evaluation of your arm and, depending on the results of that evaluation, request a hearing.
Thanks for the question. I need to do a post on schedule loss of use awards.
Good luck,
Eric
___________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
November 27th, 2009 at 5:52 pm
I have an evaluation paper from the Orthopedic doctor explaining the range of motion I have etc. He gave me a permanent partial impairment of 20%. Attached to that is some workers comp paper work saying about the same thing and how much my checks would be. It also says at the top NOT a final settlement-this form is for your protection. This is what led me to believe I may be able to close the case, if there is one to close?
January 24th, 2010 at 9:41 am
if I was offered a schedule 32 settlement in the amount of 66000 and the carrier requested a msa review and it came back equal to or greater than the schedule 32 amount, what would be the next step to get this agreement finalized?
January 24th, 2010 at 6:59 pm
Hey Keith,
Increasing Medicare set asides (MSAs) are making it more and more difficult to do Section 32 settlement agreements. However, when one of my clients has a high MSA, I first take a look at what the expenses of the MSA are. It’s possible to have the MSA recalculated. Prescription expenses are very often a huge part of a MSA. For example, I had one client who whose doctor prescribed her Ultram, she took 3 of them and didn’t like the effect so she took over-the-counter pain medication, but Medicare was saying that over $20,000 would have to be set aside for Ultram. After the appropriate documentation by her doctor, we were able to get the MSA significantly lowered. Now this is not a quick process, but it can be done.
If nothing can be done to lower the MSA, my next step is to look at annuitizing the MSA. An annuity is purchased out of the settlement proceeds to feed the MSA and this can often drastically reduce the upfront cost of the MSA.
Best of luck and thanks for reading,
Eric
___________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com