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  1. #1
    Join Date
    Mar 2009
    Posts
    50

    Default Lifetime Payments or Settlement

    Hello all,
    I live in the state of NY. I had a back injury in 2002 which left me with 2 herniated discs and one torn and major nerve damage in both legs. Did all conservative treatments there were and exastebated the injury in June of 2008, which I have been out of work sense. Had ADR and Fusion in May 2009, I now drop foot as a result. Docs will rate me in May at 75% disabled. I do have a lawyer and we are contenplating settling with IC.After reading many posts, Im not so sure. I have applied for SSDI and am waiting on an appeal, and doc said if I settle money will have to be set aside for future medical needs. Can anyone tell me about lifetime payments? How does that work? Do I have to continue this game of Doc, IME, workers compesation hearings and reduction of WC payments? This has been going on for 7 yrs and Im tired of it. I like my lawyer but should I get a second opinion like you would for your doc? Help!!!

  2. #2
    Join Date
    Mar 2010
    Location
    Atlanta, GA
    Posts
    15

    Default Re: Lifetime Payments or Settlement

    I have several thoughts on your post. The first issue is that no one can make this decision besides you. It is wise to get advice from several sources, but you have to get the counsel from the right people (this also deals with the second legal opinion, which I will address below). You are the only one that will have to live with the consequences of the decision. There are advantages to each option. The advantage of leaving the case open is that you know some of your basic needs will be provided for. I believe that ultimately settlement is the best option IF THE AMOUNT IS LEGALLY APPROPRIATE. This would only be the correct option if you are financially disciplined. The appropriate value is where the trust of your attorney comes in. You have to believe that your attorney is competent enough to evaluate and then fight for the right amount. The advantages to settlement are as follows:

    LUMP SUM - When you get the money, you are free to spend it where you want to. If there is an emergency, you have additional cash on hand to use at your discretion. I would strongly suggest finding a reputable financial planner to help make sure that the money lasts as long as it will need to or as long as possible. The reality of workers' comp is that the system is not designed well for catastrophic cases. The system is designed to get you back to work and is woefully inadequate to provide for lifetime care.

    MEDICAL - You mention fighting with the revolving door of IME, DR, hearing. If the case is settled, you are in full control of your medical decisions. You don't have to get approval from anyone. If you have a Medicare Set Aside portion of your claim, the insurance company will have to create a second account as part of the settlement based on a comprehensive evaluation by a third party. That fund will have to be used for your medical treatment related to your accident. Once you have exhausted that fund, then medicare would kick in to help cover your future medical needs.

    MENTAL HEALTH / STRESS - because you are in control of you medical, you don't have to get approval from anyone on your decisions. I make the analogy to someone who has to move back in with their parents at 35, and suddenly the parents want to impose rules like you are 17 years old again. You have grown accustomed to make your on decisions, and now suddenly your attorney and the adjuster are in charge of all your decisions. You have spent 7 years doing what you are told and that gets old. Wait until you are in year 14. The IC will never give up on the task of minimizing your exposure. If they get any surveillance of your working or doing something you are not supposed to be doing, you run the risk of losing out on future benefits. If you are in a car accident, they might argue that your new injuries are related to the new accident and they are no longer responsible. You are like a fugitive on the run always looking over your shoulder.

    Overall, you can't possibly know what will happen in the future. The certainty of the lump sum (if its the correct amount) is always better than getting the weekly check. Oftentimes, my clients feel better just because they don't have the claim hanging over their head.

    SECOND OPINION - be very careful. You have a 90% chance of getting bad advice. Attorneys are always going to paint a rosier picture in order to try to get your business. I am living that example right now. I had a great offer for a client. He had a minor back injury. He got a "second opinion" and the attorney promised him the moon. After he left, they deposed him and now he is being investigated for fraud and they have pulled the offer from the table. He is on his 3rd attorney trying to salvage the case.

    The bottom line has to be that you trust your attorney. If you don't trust your attorney, then you should address that with the attorney. If after that meeting you are not satisfied, then you should fire the attorney. Not because some other attorney said your case is more, but just because you don't trust the advice, and that is the only reason to have an attorney. No "second opinion" attorney will have the ability to evaluate your case accurately before they actually review the entire file.

    Good luck.
    Douglas Rohan
    Georgia attorney specializing in workers' compensation for over 10 years
    www.castanandlecca.com

  3. #3
    Join Date
    Jan 2009
    Posts
    205

    Default Re: Lifetime Payments or Settlement

    Sir, GaCompAtty.

    I am not an attorney, and have only been on this board a year. May I say your response is among the most thoughtful, and best I have read here? Thank you, Sir! All the best.

  4. #4
    Join Date
    Jul 2008
    Location
    ca
    Posts
    863

    Default Re: Lifetime Payments or Settlement

    Ga Comp Atty, THANK YOU for taking your time to post so much helpful information.. You give excellent things to think about..

    Thanks Again
    Never doubt that a small group of thoughtful, committed citizens can change the world...indeed...its the only thing that ever has - Author Margaret Mead

  5. #5
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: Lifetime Payments or Settlement

    BEFORE you make any decision regarding this claim... please read the FAQ's here...http://www.ringlermedicaresolutions.com/FAQ.aspx

    And consider a Structured Settlement arrangement... under IRS rules, you could be provided a tax free streatment of income, for life. If you self invest, or even with an astute financial planner, you cannot duplicate the weekly benefits you currently receive in life payments from the WC carrier.
    And/ALL 'income' you generate from a lump sum payment to close the comp claim will be taxable at state and federal rates.

    You should NOT negotiate any settlement amount until a MSA has been determined, an amount for non Medicare treatment, and the indemnity due....THREE annuities if there is a structured settlement used to close your claim.

    Remember too, a C&R is ALWAYS in the best interests on the WC IC... rarely fully in the IW best interests overall.

  6. #6
    Join Date
    Dec 2008
    Posts
    76

    Default Re: Lifetime Payments or Settlement

    You need to think about any future expenses if You need a future Surgery.
    I was made a offer that would not have even come close to the Doctors Bill not to mention the others involved.

  7. #7
    Join Date
    Mar 2009
    Posts
    50

    Default GA Atty

    Just recieved report from IME, He rates me at moderate permenant partial disability and reached MMI. Is that 50%? What happens when my doc rates me 75%? What happens then?

  8. #8
    Join Date
    Apr 2010
    Posts
    11

    Default Re: Lifetime Payments or Settlement

    Hmmm...Am I reading the detail you provided on link correctly, BVIA?

    A MSA is not needed if you take the future medical provision..but needed if you are on disability/or applying for same which would give one Medicare eligibility.Also if you get a huge settlement. It indicates that Medicare does not check every WC settlement.

    I am reluctant to take a C and R as I need FMC, but will it be hellacious trying to get my FMC? I've had minor problems with the IC at this point, prior to any type of settlement.

    Thanks to all for great detail here..

  9. #9
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: Lifetime Payments or Settlement

    Under the new reporting rules, all comp settlements that affect/close the medical coverage will be reported to CMS, and tracked.
    It would be important under the MSPA/Medicare Secondary Payor Act that Medicare interests be addressed in any settlement.

    FMC would not be paid if there were not potential need for additional treatment to your injury. Once you take the FMC money, MSA or not, you are agreeing to take over the liability for your treatment. Out of your pocket.

    The law does not demand you have a MSA account, only that Medicare interests are protected. A MSA/arrangement is the recommended tool to do that.

    Whether or not you are Medicare eligible within 30 months of the settlement, Medicare will still be involved in all WC settlements. Even if you are 25 and won't be Medicare eligible until you are 75 years old.

    Just remember, a C&R is always in the carriers best interests... they are getting out of processing/paying on your claim.
    C&R is not always in the best interests of the IW. You become the "administrator'' of your claim. There is a lot more to handling a WCMSA than just keeping the receipts for what you paid, and filing the self attestation with CMS once a year. Regardless of what you may read on a message board.

    Your difficulties in obtaining the treatment as recommended by your Dr/PTP, is because WC is about liability of the employer to pay the benefits you may be eligible for. The WC statutes define those benefits, and are subject to compliance with whatever treatment guides, and Utilization Review plan as provided by your state comp rules. Then there is the ability to appeal those decisions, thus the delays... it's "litigation". Even after a stipulated agreement resolution, and access to FMC is awarded, those same processes, and dispute resolutions are in place. Only when you cash out the medical coverage would you control your medical.... again, with money out of your pocket.

    FMC money is not a portion of your award for suffering the disability/impairment due to the injury... but seperate money, though negotiation, to pay for treatment you may require in the future.
    If there is significant treatment anticipated... you should not give up the medical coverage in the claim. Even though there can be difficulties in getting the prior authorization through the process.

    Just recieved report from IME, He rates me at moderate permenant partial disability and reached MMI. Is that 50%? What happens when my doc rates me 75%? What happens then?
    There wouldn't be any % associated with the definition "moderate permenant disabiled"... only when a formal rating issues would you be able to determine the amount of indemnity due. Whether there is sufficient % to warrant life time pension payments or not would depend on how the statutes define those benefits. Generally for a life pension you'd be 100% PD.

    Your SSA/SSDI determination of 100% disabled is not the same as being ''disabled'' under the comp rules/definition. Even though your industrial injury may have been the major reason you made the application for SSDI to begin with. Different rules, different qualifiers, totally different threashold of SSDI vs WC.

    If the IME rates at 50% and your Dr at 75%, you have a dispute, and if an agreement can't be made between the parties, you'll have to litigate the issue, comp court is the next step.

  10. #10
    Join Date
    Mar 2010
    Location
    Atlanta, GA
    Posts
    15

    Default Re: Lifetime Payments or Settlement

    As usual, BvIA is correct. In GA, the doctor must adhere to the Guides to Permanent Impairment, 5th Edition. Each injury is given a range of percentages, which the doctor will assign. You will have a permanent impairment, but the ATP will make a decision about that.
    Douglas Rohan
    Georgia attorney specializing in workers' compensation for over 10 years
    www.castanandlecca.com

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