Elmira Workers’ Compensation Lawyer Explains Settling Workers’ Compensation Cases

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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: [email protected]
Web: http://www.zifflaw.com

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25 thoughts on “Elmira Workers’ Compensation Lawyer Explains Settling Workers’ Compensation Cases

  1. 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?

  2. 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: [email protected]
    Web: http://www.zifflaw.com

  3. 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

  4. 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.

  5. 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: [email protected]
    Web: http://www.zifflaw.com

  6. 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: [email protected]
    Web: http://www.zifflaw.com

  7. 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.

  8. 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: [email protected]
    Web: http://www.zifflaw.com

  9. 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?

  10. 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: [email protected]

  11. 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?

  12. 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?

  13. 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: [email protected]
    Web: http://www.zifflaw.com

  14. i had a msa done while ssi/ssd was making thier desion on my case the msa came back almost 500,000 dollars but i was denied ssi/ssd.my question is thier a way i can get the workers comp folks to settle my medical without this set aside meaning send a check to me to do with what i want and they would be off the hook for my medical.i already settle the cash ammount but i have gotten worse the doctors have descoverd i have RSD in my groin this is new we did not know this when we settle the money end of it.i got like 35,000 which is pennies cause my doctor told me that the RSD will criple me and i will be in a wheelchair evenually i have male erectile dysfunction impotence now and its going down my legs is thier anyway i can reopen my case? because of this new found problems or am i screwed.they told me after 250,000 on the medical set aside the goverment steps in and i will get x ammount of money a year for the rest of my life is thier anyway to get around this?

  15. Tim:

    I am sorry but MSA issues are way too complicated for me to be able to offer an opinion based upon a little bit of information in an email. In these situations, I always advise folks that they should be sitting down and discussing their questions with their attorney who is familiar with ALL the details of their case. I hope you understand that it’s just not responsible for me as an attorney to try to give an informed decision when there is so much information I just don’t know about your case. I can’t tell you how often my advice as to a particular strategy will differ based upon different facts so it is imperative that you get answers from the lawyer who knows your case. If your not happy with your attorney or he won’t answer your questions, you can consider hiring another attorney, but that is a whole ‘nuther topic! :-) Good luck.

    Thanks, Jim
    _________________________________
    James B. Reed
    NY & PA Injury & Malpractice Lawyer
    Ziff Law Firm, LLP
    Mailto: [email protected]
    Office: (607)733-8866
    Toll-Free: 800-ZIFFLAW (943-3529)
    Web: http://www.zifflaw.com
    Blogs: NYInjuryLawBlog.com and
    NYBikeAccidentBlog.com

  16. Hello,
    My husband has been on w/c since 1991 and has had more than 6 operations on his leg and a hip replacement. The hip was a result of a very long delay in approving a surgery for his knee from the insurance company. Or so his surgeon says, I am beginning to feel that maybe his surgeon is not submitting the requests for these surgeries. I have noticed that all of his w/c patients are still seeing him, 10, 15, 18 yrs after their initial surgeries. It is like they are his “cash cows” so to speak. My husband’s last operation left him with nerve damage that slowly healed and was not permanent. My husband is on strong meds for pain (oxycodene) and he says they don’t really take away the pain. The insurance company has wanted to settle with us for the past 6 yrs. The first amount offered was 101K, back in 1999 which we refused. We felt that a surgery and the recoup and therapy would cost at least double that amount. They did not make another offer. Recently, they have suggested that we might “consider” settleing as my husband is still a young man (57) and could still work a job, but not the job that he was hurt on (pvt sanitation) and not at the salary that he would be making now with at least 20yrs in the field. So, what do we do? Our atty is lazy and I want to change him, but I am afraid that another atty will do the same which is nothing to look out for our interests? Sorry this is so long but I am a little frustrated by all of this.
    Karen

  17. Here is what my firm’s Licensed Workers Comp Rep Jack Schamel had to say:

    When a doctor want to perform any service that will exceed $1000.00 they have to get approval from the carrier. The doctor is to submit his request to the Board and the carrier. If the carrier does not respond within 30 days the Board will usually grant the authorization.

    It is important that you talk to your doctor about the meds that your husband is on and too make sure if he should develop a dependency to the meds. or develop stomach problems that they are established as consequential to his work related injury.

    AS far as a lump sum settlement is concerned it would appear to me based on what you have said about medications that a large part of the settlement would be used up in a Medical Set Aside.

    If your husband has a workers’ compensation injury and is not working he is eligible to use VESID and the Workers’ Compensation Vocational Counselor. You can find out about both of these services by contacting the Workers Compensation Board at (866-802-3604) or if you live in the Binghamton, Ithaca, Elmira area you can call Ed Pasto the Vocational Counselor at (607-721-8336).

    It is also important that if your husband is less than total, and I am assuming that from your comment that your husband could still work, that he make a good faith effort to attach himself to the labor market. He must look for work within his restrictions. If he gets a job and it is less pay than he was making at the time he got injured he will be entitled to reduced earnings which could be more than his current compensation payments.

    When the carrier considers making a Lump Sum Settlement the normal rule is to take the rate the claimant is being paid at the time, times 52 weeks times 5.5 years. This will give you an idea of what the carrier is willing to pay. Remember that there will be a Medical Set Aside that could be sizeable. The other option is to ask for a lump sum on the indemnity payment only and keep the medical open.

    I suggest you talk these points over with whoever is representing you or with a new person. If you do a lump sum with someone other than your current representative they could put a lien against the settlement for services rendered.

    Jack Schamel, Licensed Workers Comp Representative

  18. Hi, Eric!

    I am sitting here reading your “blog” and thinking to myself, OMG I have NO idea what in the world is going on with my case. Since you can help all these other people, and explaine things to them without making it all leaglize… I thought “hey maybe he’ll help me”

    I have been going threw this for 5.5 years. I don’t think this is a settlement, but I don’t call my lawyer because I don’t want to get more confused, if he would just talk to me like I was 5 it would be ok.

    You could say I am being found marked PPD, Atleast that is what both “Memirandum of Law” packets states. My lawyer would like to take up no regard to 15.8, whatever that means, the IC wants 15.8 established?? The IC doesn’t want to put money into the Aggregate Trust Fund?? No clue on what that is. My lawyer also wants to make all prior TR’s permanent? The IC, wants to make my weekly wage Permanent?? Also they want this case NFA??

    I am not a dumb person, put the WC laws changed and I can’t keep up with them. HELP. What does all this mean??

  19. Eric is no longer with us but if you call our office at 607-733-8866 and ask for Jack Schamel and tell him you have a comp question and mention the blog, Jack will be happy to explain things to you. Don’t feel bad, comp is unnecessarily confusing but we are happy to try to explain.

    Good luck!

    Jim Reed

  20. My bf has been deemed PPD and recieves only 1/3 of his prior earnings as a corrections officer. His lawyer told him that if he found work, (he was offered a desk job) he would get a larger benefit from NYS ins fund?? How can that be??

  21. Denise:

    As I mentioned in the prior comments, my office is no longer handling Workers Comp cases but my best advice in this situation when someone is already represented by a lawyer is that it is ALWAYS a good idea to ask your questions of the lawyer who is representing you rather than asking a lawyer who doesn’t know all the details of your case. So often it is critical to know ALL the facts before a lawyer can give a good answer so you should always start with your current lawyer. If you can’t get a straight answer from your lawyer, then you might want to consider hiring a new lawyer but remember that changing lawyers can be a very big deal so I would caution you to do so carefully.

    Good luck, Jim

  22. Hi,
    I have a N.Y. State workmens comp question. I suffered a back/neck injury in 1987. In 1988 I was declared “permanently partially disabled”. I then settled for a lump sum settlement for about 15K in 1990.
    Now in 2011, I’m in my late 40′s and my back/neck pain is bad enough that I want to apply for disabilty..Can I reopen my old 1987 N.Y. State Insurance Fund workmen comp. case?

  23. Here’s the response from a comp representative I trust: You should have no problem filing for SSD. Since you did a Lump Sum Settlement in 1990 there is a very slim chance that you might be able to reopen if it could be established that you were suffering from unforeseen circumstance now. If you were successful you would only be eligible for medical, no Indemity payments. You should contact an attorney who does both Social Security and Comp.

    Good luck,

    Thanks, Jim
    _________________________________
    James B. Reed
    NY & PA Injury & Malpractice Lawyer
    Ziff Law Firm, LLP
    Mailto: [email protected]
    Office: (607)733-8866
    Toll-Free: 800-ZIFFLAW (943-3529)
    Web: http://www.zifflaw.com
    Blogs: NYInjuryLawBlog.com and
    NYBikeAccidentBlog.com

  24. What is the difference between scheduled and non scheduled injury. Will the insurance company still offer a person a settlement award for a non scheduled injury. Thanks

  25. A scheduled injury means that a determination is made that you have lost a certain percentage of use of an arm, leg, eye and other body part. Once the percentage is determined there is a chart saying how many weeks that would represent. You would get your total weekly rate for that number of weeks less anything you have been paid to date.

    A non-scheduled award (also referred to as a “classification”) determines a degree of permanent disability (ie mild, moderate, marked or total) and you get that any time you are out of work because of your work injury.

    The carrier can at any time make an offer to settle but a good time to consider doing it is when a determination is being made on your degree of permanent disability and if it is to be a scheduled loss of use or a classification of permanent partial or total disability.

    If you are at a point for a permanency determination, you should be represented to make sure you get what you are entitled to.

    Hope this helps.

    Jack
    ______________________
    Jack Schamel
    [email protected]
    Licensed Workers Comp Representative

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