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  1. #1
    Join Date
    Sep 2010
    Posts
    4

    Default Evaluating a Settlement Offer

    Some background before my questions:

    I ruptured L4-5 disk several months ago in an incident at work. Worker Comp has been slow but ultimately approved/ arranged for MRI, steroid shots, Physical Therapy, and I have been on very limited activity. Since the incident, I have been able to loose some weight. All said and done, it has helped. I am not symptom free but leg pain and tingling sensations have been reduced greatly (still feel them - they are not as strong as they used to be). I have not had to miss any work other than medical appointment times. It was very uncomfortable the first months, but I was able to work. My most noticeable problem now is that I am a back sleeper and can't stay in that position very long before I start to feel discomfort. Therefore, I sleep on one or the other side, but wake often during the night. Haven't had uninterrupted sleep since the work related accident.

    Last week I was offered a settlement. According to the physician I have a 5% disability of this whole body injury. If I accept the settlement, Worker Comp will not pay for any future medical treatment for this injury. I haven't had any medical treatment is 60 days other than brief visits to the doctor who submitted the disability determination. I have not consulted a lawyer throughout this process. I am able to walk and move now. I have increased my activity lately- lifting, carrying weight, bending, squatting, yard, work, etc. I am being very careful and continue to strengthen more core muscles.

    Questions: Is this settlement offer "right"? How can I determine if it is or isn't? Is there a way to verify if the settlement is fair and just? Should I consult with a lawyer? What benefit does a lawyer offer and what is the cost? The settlement offer seems like a lot of money until one calculates that PT appointments are $110+, hospital visits are thousands just to start and surgery could be 10x-20x what they are offering. What should I do with the offer?

    Thank you for the help.

  2. #2
    Join Date
    Oct 2006
    Posts
    9,108

    Default Re: a Settlement Offer

    you didn't give dates or any indication as to how serious the injury is.
    seems a bit soon to come to any conclusion about permanent impairment.
    the comp court reviews the medical and the amount and has to approve the settlement.
    they will disapprove it if it is not adequate.
    if you don't like the offer and don't know how to evaluate the value of you claim then see a certified comp atty

  3. #3
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: a Settlement Offer

    Questions: Is this settlement offer "right"? How can I determine if it is or isn't? Is there a way to verify if the settlement is fair and just?

    You are being offered a cash payment for your consideration to drop your claim for benefit to this injury...forever. While the amount may be based on the PD rating, and potential need for FMC/Future Medical Care... that's just the basis for the calculation. WC is about paying benefits...not settlement.
    If you require FMC...you should just accept the weekly payments associated with the rating, and leave the medical open.

    Should I consult with a lawyer? What benefit does a lawyer offer and what is the cost?
    There is no cost for consultation.. a atty would be able to explain the process, and determine if there is merit in moving forward with additional evaluation, or dispute to the rating you have. In most cases, an atty more than compensates for the fee by one, resting your mind on the ''fairness'' of an offer, and two, ensuring you have received the benefits you are eligible for under the law. (three, just because... you are on a message board asking 'if' you should consult an atty... that should tell you it's probably in your best interests... "legal" advice comes from an attonrey.)
    The settlement offer seems like a lot of money until one calculates that PT appointments are $110+, hospital visits are thousands just to start and surgery could be 10x-20x what they are offering.
    You are entitled to money in a comp settlement for the indemnity due based on your PD rating. Compensation for any other unresolved issues. thats' it.
    There is no formula for determining FMC... as I said above...if you require FMC, don't close the claim.
    Carriers nor self insured ER's, are about to pay a lump sum of cash for FMC you may or may not seek post settlement. There is no way to anticipate your actual needs, or requirements. Nor is there a guarantee you'd live long enough to seek that amount of treatment. And, there is the distinct possibility of reinjury, non industria, which would relieve the ER/IC in this claim, or with another ER where by they would become liable.


    What should I do with the offer?
    THink very very carefully about your options here... and potential out of pocket liability for FMC, that you are unlikely to be compensated for.

  4. #4
    Join Date
    Sep 2010
    Posts
    4

    Default Re: a Settlement Offer

    Some additional info and clarification. The injury was 10 months ago. After an MRI, I was diagnosed with a rupture L4-5 disk with the potential of disk fragments against the spinal nerves (second MRI confirmed the disk fragments). I was in lots of pain, hard to walk, tingling and pain sensations down my leg into one foot 24/7 and occasionally the other leg/foot. Could not stay in one position very long (sitting, standing, walking, lying down). Pain meds did help a little, but I prefer to avoid them. Initially I took PTO (paid time off) to avoid "missing" work. After 2 steroid shots (2 weeks apart) my symptoms improved and I started Physical Therapy (PT) at a Worker Comp authorized clinic. I was told I to go to work on restricted duty. A 3rd steroid shot a month later also helped. My PT continued for about 14 weeks, good improvements to my symptoms but ended PT will some tingling sensations in my ankles and feet. I continue to work on strengthening my core muscles. I was told to increase my activities slowly and see how I did. Today, my symptoms are as described in the first post.

    The Work Comp Ins company is offering a lump sum settlement based on a Physician’s assessment of 5% Permanent Partial Disability (PPD). Whole body injury, KS max is 415 weeks, 5% is 20.75 weeks x the maximum weekly dollar amount. My acceptance will close out this case / claim, ie no FMC.

    I agree that I need to “think very carefully about my options”, I just do not know what are my options are beyond accepting the offer? Can anyone suggest what options I have?

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

    Default Re: a Settlement Offer

    Taking a settlement in cash means you are accepting liability for this injury, including medical care.

    In a stipulated agreement, the indemnity is paid, or determined based on the PPD rating, paid in lump sum or weekly until satisfied.
    The medical remains open based on necessity. FMC covers the ''normal progression of the injury/illness/disease as a result of the injury. Provides medical care to cure and/or relieve from the effects of said injury"... your options are... cash out and pay out of pocket for medical care... or take the indemnity weekly or negotiate a lump sum in todays dollars...and leave the medical open.

    Indemnity is pre determined by law... the rating is disputable. There is no formual for calculating FMC. But you should have a clear understanding of what your FMC may require, and the potenial cost. Even though you will never be compensated for the full amount.

    FMC is not a portion of the award for suffering the impairment due to injury, there is no entitlement to FMC... cash payment for FMC is purely voluntary and incentive for your consideration to close the claim file.

    It would really be in your best interests here to consult with an attorney before you accept any cash offer. The prospect of a cash payment may look good... but it's always in the best interests of the ER/IC... seldom of the IW.

  6. #6
    Join Date
    Sep 2010
    Posts
    4

    Default Re: a Settlement Offer

    Thank you. I believe I am starting to understand the complexities of Work Comp process... well maybe, just scratching the surface.

    Will the WC Insurance Company typically be open to a stipulated agreement after offering the settlement they have in my case? I suspect not. Is it advisable to ask?

    If I accept the cash settlement and then end up having related symptoms, can I go through my health insurance plan and receive treatment that is covered and paid out according to the plan policies?

  7. #7
    Join Date
    Oct 2009
    Posts
    120

    Default Re: a Settlement Offer

    The injury was 10 months ago. After an MRI, I was diagnosed with a rupture L4-5 disk with the potential of disk fragments against the spinal nerves (second MRI confirmed the disk fragments).
    Disk fragments or spurs showing up on the MRI so soon after your date of injury would mean that those are part of a degenerative condition and probably pre-existing. Your injury caused an aggravation to a nerve in your spine causing tingling down the back of your leg. If your symptoms are resolving, then it would appear the conservative treatment is working. Did the doctor state that you may require surgery?

    When looking to settle your claim:

    1. What permanent work restrictions were given, if any?
    2. What is the disability rating?
    3. Are you recommended for surgery?
    4. Do you feel you will need regular treatment in the future? How soon? A week, a month, a year?

    The carrier is offering 5-6% to settle your file. You do not have to accept this amount. You may negotiate yourself the cost of your claim. Future medical non-surgical is typically $3-5k. You can always argue your disability. So say you think disability is worth 10-15% + $5k in future medical. You can always negotiate this stuff. The carrier wants to close your claim and you want to get as much settlement money as you can. If there is no agreement, do you see yourself getting a lot of treatment that has to be authorized by the carrier? Though you have been released at MMI, you and your doctor will have to inform the carrier everytime you want to be seen in the future. You are still directed to seek treatment with carrier's choice of doctor. If you feel you will get treatment once a month, leave medical open. If you feel you will have a doctor's check up only twice a year ($200 overall charge but maybe only $30 to you on your health insurance) and not physical therapy or injections, then you may want to go ahead and close medical.

    Let's say you demand 10% putting you around $22,659. You add $5k = 27,659. They won't pay this of course, but you go into negotiations knowing that. So you and the carrier discuss and agree to meet in the middle. If you have no permanent work restrictions and you are not a surgical candidate, you will probably need to reduce your price.

    -H2HU

  8. #8
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: a Settlement Offer

    I'm not so sure you're going to negotiate a PD rating of 5% up to 10% or 15%... those indemnity amounts are predetermined, but statute in most cases. No reason for the carrier to increase, they will argue to a commutation to ''todays dollars'' though.

    FMC/Future Medical Care is a SWAG/Scientific Wild Ass Guess...at best.
    Carriers are not about to pay out a chunk of cash for treatment you may or may not seek post settlement.
    Don't expect cash for a surgery you may not go after, or need.

    The bigger problem with cashing out FMC is the fee schedule. Carriers are entitled and pay to a negotiated fee schedule, or official fee schedule as adopted by the state dept of ins or WC commission. IW's pay "usual and customary''. Those ''todays dollars'' are not going far.
    If you feel you will have a doctor's check up only twice a year ($200 overall charge but maybe only $30 to you on your health insurance) and not physical therapy or injections, then you may want to go ahead and close medical.

    When you accept cash for FMC, you are agreeing to accept liability for your medical care. Your health coverage will not pay for treatment. If someone says they will. GET it in WRITING.
    Will the WC Insurance Company typically be open to a stipulated agreement after offering the settlement they have in my case? I suspect not. Is it advisable to ask?
    A stipulated agreement is generally to the PD rating, and what body parts they agree to provide ''reasonable medical care'' to. Not likely, depending on the amount, that the indemnity would be paid out in cash. You could negotiate that though. The tool they hold is that FMC... they'll pay you cash, but want to close the file.

    The default settlement is a 'stipulation' basically... weekly payments on indemnity, medical access based on necessity.
    The only money you are entitled to in a WC claim is the indemnity. That's called a lot of things...but could be viewed as compensation for suffering the injury in the first place...or "pain and suffering"...it's simply predetermined, so we don't have to wait for a trial by jury. (pain/suffering doesn't actually mean "pain"... or how you've ''suffered'' though....there just isn't a better adjective to describe the money awarded in a personal injury claim. )
    The injury was 10 months ago. After an MRI, I was diagnosed with a rupture L4-5 disk with the potential of disk fragments against the spinal nerves (second MRI confirmed the disk fragments).
    Never heard of ''disk fragments"... a disk is a soft ''mushy'' thingy.....like a vitamin D capsule. When ruptured, the fluid 'squirts' out, leaving the vertebra to rub together. When that happens, the nerve root may become impinged causing 'pain'. Sometimes, significant pain, and even paralysis if the nerve is severely damaged or broken. If you are a candidate for surgery in a few years post settlement, you won't have sufficient cash to pay in full. And no health coverage plan will kick in.
    If you don't seek treatment for years... when you do become Medicare eligible, you will have to prove you have spent that money on treatment to your injury before Medicare will pay benefits.
    IF the allocations are not appropriate in the settlement documents, CMS/MEdicare can/will declare the ENTIRE amount of the settlement as medical reimbursement.

    Lots of variables and considerations in a C&R. Consult with an attorney is in your best interests.

  9. #9
    Join Date
    Oct 2009
    Posts
    120

    Default Re: a Settlement Offer

    Settlements and ratings can be negotiated in Kansas.

    Google disc fragment.
    Google bone spur.

    -H2HU

  10. #10
    Join Date
    Sep 2010
    Posts
    4

    Default Re: a Settlement Offer

    Thank you for your replies. Much to think about and prior to this e-dialog I had very point little reference to work from.

    In reply:
    1) I have no permanent work restrictions. My job is primarily an office position in support of fieldwork; therefore I am often in the field and end up helping to get the work done.
    2) The disability rating is 5%, PPD (Partial Permanent Disability).
    3) The WC doctor, a surgeon, said he wish he had postoperative patients doing as well as I am. No, I doubt surgery is in my future unless something unforeseen happens.
    4) Right now I am "trying out" my back on various tasks from my “normal”life. Did some work (on the job) last week that caused some pain, but felt better a few days later. I am not under any treatments now. I wonder if more PT would be beneficial as a means to further strengthen my core muscles, but have not pursued that at all.

    From what has been written in this thread, my FMC will be my responsibility, no matter how large or small if I settle.

    Question, if I can show "normal life duties" for the next period of time, say 6 months or more, and then my symptoms return due to over exertion or injury,.. Is this not a new incident and therefore a new WC case starts if it happens at work or my HC insurance will cover it if not at work? (I understand that if future and or new PPD is determined, I start at 95%, not 100% in future calculations for settlement as the insurance has already compensated me for my 5% loss.

    Am I thinking clearly? Are there some "rules" that will apply that I am not aware of?

    Many thanks for your engagement on this. Looking forward to your reply.

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