California Worker's Compensation - Help For Injured California Workers

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  1. #1
    Join Date
    Jul 2007
    Posts
    5

    Question Taking A Larger Settlement Or Keeping Lifetime Medical

    Not sure if anyone can help. I have had a workers comp case going for 4 years and it looks to be at the end and about to settle. My attorney wants me to cash out the medical but I do have the option of taking the life time medical. I am declared 25% disabled at the moment with eventually needing surgery in the future when it gets worse. I have my own private medical insurance which I pay for and have had since I was a child, which I have been using in the past for my injury when my job at first did not file an on job injury report (long story). So my attorney says since I have medical already I should just cash out and not take the life time insurance but I am afraid that my medical can refuse to do a surgery on me in the future when I need it. I also worry that if I do take the life time medical and when I do need surgery down the road, what if the insurance company is gone?? Would I be out of luck?? Does anyone know what to do in this situation? Any help would be appreciated. Do I cash out or settle with the life time insurance??
    Thanks!

  2. #2
    Join Date
    Dec 2006
    Location
    Pa.
    Posts
    925

    Exclamation Re: question on settlement...

    Each State has different rules on this, so by knowing your State it would be a lot easier to answer this. Me Personally, if I knew I wasn't completely healed from my w/c injury I would not close Medical. If your are eligible for SSDI though, you can close Medical with a Medicare set-aside and be rid of w/c. From what I understand, if your personal ins. knows you have closed Medical and know you still need surgery at some point, they can turn your w/c related issues down. It's a pretty touchy subject, one maybe best talked over with a w/c Certified Attorney, and if you don't have one, now may be the time to consider one to make sure you get the benefits you deserve! Best of Luck!!

    As far as the i/c being gone, w/c is State controlled, so your Medical would be covered one way or the other for life. There is no chance of losing your Benefits if the Employer goes out of Business or changes i/c's!
    Last edited by Scar Tissue; 07-14-2007 at 01:38 AM.

  3. #3
    Join Date
    Oct 2006
    Posts
    9,108

    Default Re: question on settlement...

    Each state has a guarentee fund that pays the benefits of those with claims of a carrier that goes bankrupt.
    Last edited by .SH; 07-14-2007 at 09:07 AM.

  4. #4
    Join Date
    Jul 2007
    Posts
    5

    Default Re: question on settlement...

    I am in California.
    I have an attorney. He wants me to settle and take the cash out(I think so he gets a bigger cut, but not sure). He was telling me that I could hurt my back worse some time down the line and the workers comp insurance could say that I hurt it worse somewhere else and that they could possibly get away with not having to cover surgery. Is that true??? They are saying right now that I am not a candidate for surgery, but may need it in the future when I am older. I am fairly young and this is a injury that happened when I was 18. One of the drs I went to told me if he were a betting man, he would bet I get surgery later down the road. He also said I should wait as long as I possibly can before I decide to do it since I am in my 20's still. I have 3 herniated and torn disks one of which is herniated 6 mm. The mutual dr says I do not need surgery, which is why my attorney says he wants to cash it out. I am just afraid that if I cash out and sometime down the road DO actually need to get something done my personal insurance will not cover it. What he is saying though is since I do not need it right now and odds are will not need it for a long time, by the time it comes down to it they could try to say that a newer injury has caused the need for surgery and can fight the costs for it.

  5. #5
    Join Date
    Jul 2007
    Posts
    5

    Default Re: question on settlement...

    so if the insurance carrier goes belly up that states covers it????

    (that is in regards to .sh post)

  6. #6
    Join Date
    Oct 2006
    Posts
    9,108

    Default Re: question on settlement...

    your atty is correct.
    workers' comp is NOT health insurance. you are NOT covered -- The injury is covered.
    ANY event that is not job related is excluded from comp coverage. Anything else happens to you it's NOT going to be covered by this comp claim.

  7. #7
    Join Date
    Dec 2006
    Posts
    2,165

    Default Re: question on settlement...

    Me13, IF you settle your claim out in its totality (Compromise & Release), your current employer and THEIR Insurance Comany would NEVER, EVER be liable for ANY further costs for your back injury. IF it looks like you WILL need Future Medical Treatment (surgery), the costs of the surgery, physical therapy and ALL related costs should be "factored in" to your settlement.

    Don't expect the IC to pay you the FULL value of this surgery; they wil "discount it", because, IF you put that money aside and invested it wisely, they are figuring that "maybe" that money WOULD be enough to cover it.

    Naturally, if you settle, the IC will not "consider" that you might have complications following the surgery (if you have it) that could result in complications, hence potentially INCREASED permananent disablity, above and beyon what you already have.

    So, as you can see, there are "risks and benefits" by settling out with a C&R.

    Ok, let's assume that you DO settle out, get on with your life, find a NEW job... WITHIN THE RESTRICTIONS THAT YOUR CURRENT DOCTOR AND INSURANCE DOCTOR advise you of. You find a NEW job, and stay within your RESTRICTIONS,and you get hurt ON THE JOB AGAIN. There is a possibility the your NEW employer could argue that you had a prior back injury, and they aren't "liable for it".

    Generally speaking, IF your employment has CAUSED a NEW injury, or even aggravated it, the NEW employer would be on the hook. The REAL issue would be 'apportionment"--how MUCH of the disability is caused by your NEW injury, compared to HOW much your PREVIOUS back injury is CAUSING or CONTRIBUTING to the NEW disability. If it is found that your PRIOR back injury is causing, say 50% permanent disability to your NEW permanent disability, your final PD award would be reduced accordingly.

    BUT, medical TREATMENT by WC can NOT be apprortioned...your new employer would HAVE to pay the costs, if it is determined that your NEW job CAUSED the NEW injury and/or aggravation.

    NOW...let's say you do NOT settle by C&R, and you decide that you want your current IC to keep on paying for ANY treatment, including surgery, that you might need NOW, ongoing and in the FUTURE. Usually, this is called a "Stipulation with Future Medical Care",. You will be rated as to the extent that your injury is causing you Permanent Disability, and will be paid bi-weekly, until the amount of your PD has been satisfied.

    BUT, if you need to keep seeing your Doctor, need to continue taking medications, the IC MUST continue paying for it.

    Let's assume that you opt for the Stip, and you go to work for a NEW employer (just like you would, if you did a C&R). Again, it is IMPERATIVE that you find a new job that is WITHIN YOUR CURRENT RESTRICTIONS, and STICK TO THEM--at work and at home. You do NOT wnat your current IC to say "HAH! You worked at a job that you SHOULDN'T BE DOING, based on the injury that WE have been PAYING for..too bad, too sad--the NEW employer is gonna have to pay for your NEW injuries"...

    You can reduce the risk of this happening by STAYING WITHIN YOUR RESTRICTIONS, and making SURE that you are seen by your current Primary treating Physician fairly regularly.. that way, they can track HOW your back is progressing on its own NATURAL course, PROVIDED THAT YOU STAY WITHIN THE RESTRICTIONS In spite of your STRICT ADHERANCE to to the RESTRICTIONS, and your back continues to decline, the your current IC should CONTINUE PAYING for reasonably necessary treatment, including MEDICATIONS, and/or the SURGERY that your current Docs are saying that you will probably need down the road.

    True, you MIGHT have to fight for the treatment, BUT, if you C&R out, get a new job, your back gets worse (as predicted), suffer a NEW injury or aggravation to your back, you might STILL have to fight with the NEW employer ACCEPTING the claim so you can get treatment.

    A lot of insurance companies are NOT paying for ANY injuries are related to a prior work-related injury, becaue they are tired of paying for ANOTHER IC's responsibility for medical care/costs. SOME of the group health plans MIGHT, provided that you can make it through the "waiting period" for treatment for pre-existing conditions...but you can't "count on it",unless you REVIEW THE ACTUAL POLICY AHEAD OF TIME. Ther might be something in the "fine-print" that EXCLUDES treatment for a prior work-related injury, even though you have NOT received ANY treatment for xxx amount of months OR YEARS. It just depends on the particular policy.

    You, your attorney and your Doctor need to DISCUSS all this, so that YOU can make the BEST decision for YOU, based on your CURRENT injury.

    IF you decide that you want to Stip out, and retain Future Medical, because that is what is best for YOU,, your attorney better "get over it"...it is NOT about the attorney, and how much money HE can make "instantly", by you C&R'ing out.....HIIS job is to "protect your best interests", and if that means a Stip with Open Future--he can STILL have the "opportunity" for additional attorneys fees.

    Generally, you have FIVE YEARS from the date of your original injury to RE-OPEN your case, for "new and further disability", "compensable consequences", (like, you have the surgery after you Stip out, it is a failure, and now you are even MORE disabled, or, you suffer really bad side-effects form medications that damage your liver/kidneys, etc)..

    The deadline-date for re-opening depends on the deadline date for your state. However, if you settle out by a C&R...it is a GUARANTEE that you can NOT reopen your case. Did your attorney discuss this with you??

    Again, discuss this with your attorney. I he is trying to pressure you and you do not feel comfortable, then talk to a few OTHER competent WC attorneys. The initial consultations are usually free.

    In the meanwhile, start learning about the WC laws in your State...you will be in a much better position to discuss these issues and ask relevant questions with your attorney.
    Last edited by Charles Stevens; 07-15-2007 at 04:31 PM.

  8. #8
    Join Date
    Nov 1971
    Posts
    177

    Default Re: question on settlement...

    Any injury you have may require treatment at any time; even 25 years from now. You cannot leave yourself without coverage for the work related injury for the rest of your natural life.

    If your private insurance company has been paying, I am surprised you have not heard from their Subrogation department. They should be looking for reimbursement from the comp. insurer.

    If there's a 3rd party involved, they will slap a lein on anything you collect from them. I was in a work related car accident and am now suing the person who hit me; didn't take WC more than a second to put a lein on anything I get.

    My lawyer has told me that in cases like these the lein is negotiated down, but I have told her that if WC gets back most of any settlement or judgement, I will turn the entire blasted thing down. Comp. ruined my life by witholding medical and contesting my claim; by the time I had my surgery I wound up with permanent nerve damage. By then I'd folded my comp. claim because of the pain. Big fear now is that I might one day wind up with insurance that has a liftetime dollar cap. One major illness could eat that up in no time.

    You might want to consult another lawyer or two, if possible. Methinks you need a second opinion.

  9. #9
    Join Date
    Jul 2007
    Posts
    5

    Default Re: question on settlement...

    WOW! That was a lot of info. The dr my attorney sent me to is the one that said he thinks I will one day need surgery and suggested I take the life time insurance. He said that my attorney may not like it but I should go that way instead of cashing out.
    So I only have 1 more year to decide to cash out then once this settles cause this whole thing started in 03. I have a very long complicated story and there is 2 dates of injury, but I assume I am going on the 03 one.
    I have wanted this whole time to take the life time insurance especially since the dr said it would be best, but my attorney tells me since I have private insurance that I pay for myself that I would not need life time through the workers comp case. It sounds like from the info I am getting on here though that I should stick with my gut feeling and take the life time....?

  10. #10
    Join Date
    May 2007
    Location
    Calif
    Posts
    483

    Default Re: question on settlement...

    Your attorney is wrong about the private insurance paying for your wc injury.

    The only time your private insurance will step in is if WC will not provide the treatment and it is medically warranted [your private insurance will need to make that determination] some private health insurers will provide benefits based on your policy contract, BUT if at a later point WC then says OK we agree, you can bet your life your insurer will immediately put a lien on any WC monies and will stop paying for anything that WC now admits to being liable for, provided you have not settled your claim. If you have settled your claim your private insurer will not pay a penny towards your injury. All private insurance policies have exclusions and include a very definite exclusion for worker's compensation.

    Understand that your private insurance has a completely different policy than work comp, work comp is only liable for that which was caused as a direct result of your work injury, your private insurance takes you as you are with exception to the work related injury and treatment that follows.

    In addition, if you are young you might find it better to take the life time medical especially if your MD says you might need surgery in the future, if after a # of years everything seems ok and you have not gotten worse, then
    I believe you have the option to settle out the future med.

    Other's more experienced can comment further in that area........

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