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  1. #1
    Join Date
    Apr 2011
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    3

    Default What's a Fair Settlement Amount

    Hi, this is my first post on here and I was hoping I could get some advice. About two years ago a family member (who is about sixty now) was caught in an industrial accident. He ended up under some heavy equipment, which ripped off a finger and shattered both of his legs below the knee. After two years of painful reconstructive surgery (about eighteen in all) he finally had to have his legs amputated. The lawyers heís using now originally threw around figures in the millions to get him to sign, stating that the settlement would be based off of 3x medical. Flashing forward to now their telling him the figure will now be about 100 to 200k. After doing some research I found that this would probably be accurate as a base amount (being around 66% of his salary for a number of weeks based off of complete loss of two legs and a finger). However, this seems very inaccurate given his needs (given that the average prosthetic plus shower legs would consume that amount within a few years). In any event Iíve got two questions:
    1. Is that figure accurate, given complete loss of a finger and both legs? I know settlement questions are all too common on here, but I hope someone may have had similar circumstances.
    2. Has the comp law changed much in two years? And if so would he qualify under the old mandates or have to stick with the laws as they stand now? Iím wondering if the lawyer is missing some aspect that would benefit him (unlikely I know, but then they were throwing around the initial figures).
    I would greatly appreciate anyoneís insight into this. Thank you.

  2. #2
    Join Date
    Mar 2007
    Location
    Georgia
    Posts
    1,928

    Default Re: Yet Another Settlement

    W&W I am NOT certain how to answer your question but with a question to you. Will the IC NOT keep medical open on a life time basis due to his double extremity amputation and his digit amputation as well? That would seem to be the thing to do and settle out the indemnity portion.

    Let me know.

    Steel
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln


    Take Care and Be Well.

  3. #3
    Join Date
    Apr 2011
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    3

    Default Re: Yet Another Settlement

    Quote Quoting SteelMagnolia View Post
    W&W I am NOT certain how to answer your question but with a question to you. Will the IC NOT keep medical open on a life time basis due to his double extremity amputation and his digit amputation as well? That would seem to be the thing to do and settle out the indemnity portion.

    Let me know.

    Steel
    I don't know, we havent really gotten to that point yet. Everything we've heard though has indicated that they really don't like to have an open claim like that in existence (though wouldn't that implie they would factor future medical into a settlement)? Like I said we don't know enough about it, we were just concerned that they'd cover current medical and then try to pawn him off on disability or Medicare (though in my ignorance I don't know if that would even be a consideration).

  4. #4
    Join Date
    Mar 2007
    Location
    Georgia
    Posts
    1,928

    Default Re: Yet Another Settlement

    OK WW, you have hit on a very important issue. That WC IC can NOT pawn him off on Medicare or any other health care payer for his industrial injuries. Including state Medicaid. There is a thing call Workers Compensation Medicare Set Aside/WCMSA, that you need to throughly educate yourself on. Medicare has in recent years began to monitor much more closely than in past years this exact scenario. Say your relative settles with the WC IC for what ever amount of money and then attempts to use Medicare to pay for anything to do with his prior work injury, IF he does NOT take Medicare's interest into account in the settlement process Medicare will NOT pay one cent on his medical treatment until he can show that every penny of the entire settlement has been spent for his medical needs.

    No doubt the IC doesn't really want to follow the law and do as required to NOT pass their obligations off to Medicare/Medicaid/or even a General Health Plan. They darn well know it is ILLEGAL for your relative to use those other health care plans for his work injury in the future. AND they also know that Medicare/Medicaid will require him to use his entire settlement for medical care before Medicare/Medicaid will pay for anything. YES ma'am that says the entire settlement NOT just the the part the IC would love to allocate for FMC/future medical care. The IC knows it and every attorney that practices WC law darn well should know it. Although a few of the bottom dwelling WC attorneys will ignore it or pretend they don't know about it but rest assured they ALL know the law where this is concerned. Unfortunately it does not keep some of the less than honest AA's from attempting to circumvent the law and the client is left holding the bag. Although there are laws for IC's/Attorney's/and Claimants to face stiff penalties for ignoring this law it does NOT keep all AA's for attempting to get around it.

    Here are some links that you really REALLY NEED to read and make darn good and sure your relative fully understand what a Workers Compensation Medicare SetAside is and how it is to be used. AND you can bet your bottom dollar Medicare NOR Medicaid is NOT going to accept ignorance to the law as a reason to go ahead and pay for his necessary treatment for his industrial injury.

    https://www.cms.gov/WorkersCompAgenc...wcsetaside.asp

    http://maildogmanager.com/page.html?...NeKuZd+WwxtF8T

    http://www.jjcelderlaw.com/AnnuitiesMSABull.htm

    Please do NOT let your family member do a grave disservice to his self by NOT reviewing the information provided. ESPECIALLY the information in the first link I have given you. It is NOT just good sense it is crucial to his future financial stability to adhere to these laws as Medicare is NOT kidding when they say that they will make him pay every penny of his entire settlement, (rather it was allocated as future wages or future medical makes NOT one bit of difference to them. IF the FMC for a WC claim is not submitted to CMS, and they will tell the IC what amount IF any they are required to provide for the WCMSA btw), before they will pick up the tab for even one cent on a prior work injury.

    There are also many posts on this forum addressing this same issue. Do a search and you will see hundreds or maybe even thousands explaining the WCMSA requirements.

    Best Regards,

    Steel
    Last edited by SteelMagnolia; 04-22-2011 at 08:54 PM.
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln


    Take Care and Be Well.

  5. #5
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,021

    Default Re: Yet Another Settlement

    The settlement or indemnity paid is based on the PD/impairment rating once MMI has been reached, not the type of injury, or the amount of treatment provided.
    There is no entitlement to future medical money in a cash settlement. That is a negotiated amount between the parties. If there is a cash payment to close the claim, he'd be agreeing to accept full liability for further treatment to the accepted body parts...out of HIS pocket.

    1) Probably accurate. There are no "millions" of dollars paid for this kind of injury, the indemnity benefits are predetermined by law. If medical is necessary, the claim should not be closed out.
    2) Some of the WC statutes may have changed... probably not significantly in the past 2 years that would affect his claim. The dollars paid weekly for indemnity would be based on those min/max rates in effect on the org DOI/Date Of Injury.

    As to a Medicare setaside arrangement, there are triggers for a proposal to be considered.
    The total cash value of the claim... including all of the money paid in benefits/medical. Atty fees... and you'd have to be Medicare eligible within 30 months of any settlement that changed/closed out the medical benefits.
    However, this seems very inaccurate given his needs (given that the average prosthetic plus shower legs would consume that amount within a few years).
    The problem with taking the cash for future medical besides the potential of a setaside or paying out of pocket, ER/IC's loath the idea of paying for something they may not get. There is no guarantee he would ever seek to replace the prosthetic's...there is no guarantee he would live long enough to use up a significant amount of that future money.
    WC is all about paying benefits. A cash payment is simply offered in the best interests of the ER/IC to limit their financial exposure...seldoom in the best interests of a seriously injured IW.

  6. #6
    Join Date
    Mar 2007
    Location
    Georgia
    Posts
    1,928

    Default Re: Yet Another Settlement

    Quote Quoting W&W View Post
    Like I said we don't know enough about it, we were just concerned that they'd cover current medical and then try to pawn him off on disability or Medicare (though in my ignorance I don't know if that would even be a consideration).
    BiVA FYI I gave W&W the WCMSA information due to the comment above. That indicates to me that the IW is or will be Medicare eligible within the guidelines. I would NOT have wasted my time responding otherwise.

    As to the dollar amount on the settlement I have recently gone through the settlement process myself and my PPD was no where near the $250K BUT a MSA was still required and MCS came back with right at $3/4 million. Needless to say the IC refused to even entertain doing even the first two years required as the seed funding and I settled with open life time medical.
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln


    Take Care and Be Well.

  7. #7
    Join Date
    Apr 2011
    Posts
    3

    Default Re: Yet Another Settlement

    Thanks you very much Steel and BvIA, the advice is greatly appreciated and should really help out (especially the links). We went into this hoping he'd be taken care of, and at least now we've got a better understanding of what to expect (and some definite pitfalls to avoid). Again can't thank you enough.

  8. #8
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,021

    Default Re: Yet Another Settlement

    As to the dollar amount on the settlement I have recently gone through the settlement process myself and my PPD was no where near the $250K BUT a MSA was still required and MCS came back with right at $3/4 million.
    Don't know what your "FYI" is about steel... but I think you have misunderstood the 'trigger' on MSA. There was no challenge in anything you provided. Your responses are generally on point.
    The total amount of benefits paid...TTD, TPD,PPD, medical, atty fees, ANY monies paid in the claim...not necessarily the settlement amount.
    If an IW is Medicare receipient at the time of settlement, the threashold is a mere 25K.

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