Settlement of a workers' compensation claim is a significant decision requiring consideration of many issues. Your claim will not be the same as the claim of anybody else you know. The settlement value of your claim will depend on many factors including, but not limited to, your compensation rate, the nature of your injury, and your permanent physical restrictions.
If an injured worker is deemed totally incapacitated, our law does not terminate these benefits at age 65 or any other assumed retirement age. These benefits can continue until the injured worker passes away.
Thus, a determination of total incapacity can be the single greatest consideration in determining if a settlement proposal is fair and adequate. If the treating doctor indicates that an injured worker may perform activities that involve lifting up to 5 pounds, many injured workers assume that they do not have a claim for total incapacity benefits. That is not always the case.
If, after considering the physical limitations resulting from the injury in combination with the injured workers' prior work experience, education, and skill set, it is determined that an injured worker is unemployable, that worker is entitled to total incapacity benefits. Pursuing such a claim is often complicated and typically involves the services of an expert witness.
Nobody, not an attorney or a friend, can guarantee the outcome of such a claim. Having said that, a pursuit of such a claim may be the only reasonable option available to a severely injured worker. Whether such a claim is actively pursued or not, consideration of such a claim and the relative merits of such a claim must be considered when properly evaluating a claim for settlement.
Settlements can be structured in many ways. Some settlements settle indemnity benefits but leave the workers' compensation insurance company responsible for future medical bills. Most settlements also close out future medical expenses.
Any injured worker over 62 years old, any injured worker receiving Medicare, SSI, or Social Security Disability, or any worker who has applied for Social Security within the past 30 months must include a Medicare Set-Aside (MSA) in any settlement that closes out future medical expenses.
Failure to include an MSA in a settlement could place your entire settlement in jeopardy. An injured worker should be fully aware of factors that should be considered when determining the proper value for a settlement.
Likewise, an injured worker should be aware of the possible need for an MSA and the requirements imposed in connection with an MSA. If you find yourself in this situation, you can contact our office for a FREE