People often contact my office because they are not sure if they should settle their workers compensation claim. There are major differences on how to move forward on your claim which depend on whether you want to keep your “lifetime” medical benefits or, if not, you want to settle your case. BE INFORMED! If you are considering settling your case, make sure you understand what you are giving up and what you are gaining. There are pros and cons either way. Make sure you understand the differences between the two so you can be comfortable with the decision you make and there are no surprises later on.
I have listed here some of the good and bad of either option.
PROS OF SETTLEMENT:
No more waiting for approval of medical treatment and/or prescriptions. Once you settle your claim, you are in the driver’s seat. No more waiting for approval from the insurance company because they are no longer involved! You get to decide what treatment you want.
You get to see any doctor you want. After your claim is settled, you are in charge of your medical care. Don’t like your doctor? No problem. Find a new one who you are comfortable with. Get a second opinion. You are the sole decision maker in your medical care after you settle your claim.
You get a lump sum of money. Instead of the insurance company paying the doctor for medical care, they pay you that money. Use it for medical care or any other thing you want. You have total freedom of choice.
CONS OF SETTLEMENT:
Giving up lifetime medical benefits. In an accepted claim, if you are under an Award and have lifetime medical benefits, when you settle your claim for a lump sum, you will need to give up your lifetime medical benefits in exchange for the settlement. From that point forward, the medical treatment becomes the responsibility of the injured worker.
Liens on settlement. Medicare, Medicaid, and Child Support Enforcement can have liens on the settlement money. Medicare goes so far as to say it has an interest in your workers compensation settlement if there is a reasonable expectation of you receiving Medicare benefits within 30 months after settling your workers compensation claim. This can make the settlement process long and drawn out because review and approval of your settlement terms from one or more entity may be required. You most definitely need to talk to an attorney if you are in this situation and are interested in settlement. The settlement paperwork needs to be carefully written to protect your interests.
Resignation. Resignation from the employer where you were injured is typically required as part of the settlement terms. However, if you dislike your job, or if you are injured to the point that you can never return to your pre-injury employment, or if you no longer work there anyway, this may not be an issue for you. Resignation is a condition of settlement dictated by the workers compensation insurance company not the employer. The insurance company doesn’t want to pay you a lump sum of money to settle out your workers compensation claim with the possibility of you returning to work with that original employer and injured yourself again.
Settlements are final. Once you settle a claim, there is no going back to ask for this or that. You need to make sure you get it right on the first try!
PRO OF LIFETIME MEDICAL BENEFITS:
The workers compensation insurance company pays for your medical care. You don’t have co-pays and deductibles to worry about. You don’t have to stay with your employer to keep the insurance. The insurance basically covers the bills.
CONS OF LIFETIME MEDICAL BENEFITS:
The burden of proof is on you forever. Just because the doctor says you need a specific treatment or diagnostic test does not mean that the workers compensation insurance company will automatically approve it. This means that, even though you have the lifetime medical benefits, you still have to prove to the workers compensation insurance company that the treatment prescribed or requested is reasonable, necessary, and related to the workplace injury. The insurance company does not assume anything.
Medical providers generally require the insurance company to pre-approve your treatment. Medical providers have been burned by workers compensation insurance companies too many times. Having lifetime medical benefits does not mean that you can just go to the doctor whenever you want. The workers compensation insurance company may still have to pre-approve everything and they can (and will) deny anything that they believe does not meet the standard of reasonable, necessary and related to the workplace injury. This process slows down medical treatment.
You may not get lost wages when you are out of work for surgery. Lifetime medical benefits does not always mean that you are entitled to lost wages. If the doctor takes you out of work for a medical procedure, you may be off of work without pay. You may even lose your job if you are out of work too long. This is a case by case situation depending on what specific Award Order you have for lost wages. Sadly, this happens more often than you might think. I get calls from injured workers who have surgery 5 years after their injury and they are not eligible for lost wages because too much time has lapsed since they last collected lost wages pursuant to an Award Order.
Litigation. If the workers compensation insurance company denies medical treatment, you will likely be going to a hearing at the Virginia Workers Compensation Commission and the Deputy Commissioner will determine whether the requested medical treatment should be covered under your claim or not. This is expensive, time consuming, and delays treatment for injured workers. However, it is within the insurance company’s rights to take a medical treatment issue before the Commission for a ruling. It is very common to go to a hearing 3 or 4 or more times with disputed medical treatment and tests. Like I said earlier, the burden of proof is on you!
Remember folks, this is all generalized information, to get specifics about your particular situation you should speak with an experienced workers compensation attorney.
If you have additional questions about whether you should settle your workers compensation claim, please feel free to contact my office (804) 755-7755. You can also order my free book here “The Ultimate Guide to Workers Compensation in Virginia”.