If you have been injured on the job and have required surgery, you may be wondering how much you can expect to receive in a workers’ compensation settlement. The amount of money you can receive will depend on a number of factors, including the severity of your injury, the cost of your medical treatment, and the amount of time you missed from work. In this article, I will discuss all aspects of Workers’ Compensation Settlement after surgery. Continue reading to learn more.
Average Back Injury Settlement
The decisions and settlements database revealed that the median plaintiff’s verdict award for motor vehicle cases involving back injuries is $212,500. The median award for all truck, car, and motorcycle accident trauma cases in the database that resulted in a plaintiff’s verdict is $300,000.
Workers’ Compensation Benefits and Surgery
If your back injury is the result of a work-related condition or accident, workers’ compensation will cover the cost of your medical treatment and wage replacement while you are out of work. Medical benefits may cover the cost of:
- Surgery
- Medications
- Hospital stays
- Rehabilitation
- Transportation to doctor’s visits and related appointments
- Medical devices for home and automobile
In addition, wage replacement benefits provide compensation while you are out of work to recover. Temporary total disability benefits provide 80% of the injured worker’s spendable weekly earnings after you are unable to work following back surgery until you are able to return to work.
Unfortunately, sometimes a full recovery will not be possible. When a worker is unable to return to work or is unable to return at the same level as before the injury, other benefits are available. Permanent total disability and permanent partial disability benefits also pay 80% of the injured worker’s spendable weekly earnings. Total disability benefits are paid on a regular basis, while partial benefits are paid on a schedule as set by the state commission.
The first thing to understand about workers’ compensation settlements is that they are purely voluntary. Your employer or its workers’ compensation insurance company does not have to agree to settle your claim, and you do not have to consider a settlement offer proposed by your employer or its insurance company.
If you are considering settlement with respect to one or more aspects of your workers’ compensation claim or are considering pursuing a settlement, you may wonder how much you might receive in the settlement. There are several preliminary issues to consider.
Know What It Entitles You to
When considering a settlement, it is imperative to understand what workers’ compensation benefits it entitles you to and what rights you are relinquishing, as a part of a proposed settlement agreement. Consider the following benefits and how they are typically handled in workers’ compensation settlements.
In most cases, the insurance company’s doctor performing your independent medical examination will determine the type and severity of your disability.
Based on the evaluation results, the doctor assigns the percentage representing your level of disability and sends a report back to the workers’ compensation board.
A permanent partial disability rating may range anywhere from one to ninety-nine percent. The majority are between five and thirty-five percent. A rating of one hundred percent indicates a permanent total disability. Workers’ Comp disability categories
- Temporary Total Disability prevents you from working at all for a limited time.
- Temporary Partial Disability prevents you from performing some of your job duties for a limited time.
- Permanent Total Disability prevents you from ever returning to work, either for your current employer or for any other employer.
- Permanent Partial Disability is a permanent injury that partially impairs your ability to work.
Permanent partial disability claims are the most prevalent type of workers’ compensation claim, representing over one-half of all workers’ compensation claims filed each year in the United States. PPD may result from a wide variety of work-related injuries, from physical injuries to mental health issues.
Traditional physical work injuries, such as herniated disks, burns, or amputations, may cause permanent partial disability. It may also be caused by occupational diseases, such as lung disease from asbestos poisoning or toxic fumes.
Permanent Partial Disability
If your work-related injuries result in some permanent impairment, but do not make you totally disabled, you may be entitled to a monetary award to compensate for your permanent impairment. If you have new work restrictions due to your injury that limit the work you can do, or if you had surgery under your workers’ compensation claim or your body can never return to its pre-injury state, you may be entitled to a permanent partial disability award.
Many employers may propose a settlement of the permanent partial disability claim by offering a dollar amount equal to, or slightly less than, the amount of your potential permanent partial disability award under your workers’ compensation claim. A very important thing to remember is that they will require you to give up something for this money. You will give up the right to argue that you are permanently and totally disabled, or the right to argue that you have a specific medical condition related to your workers’ comp claim, or the right to any future medical treatment. If a significant amount of money is at stake, you should speak to a workers’ compensation lawyer about the implications of this settlement agreement.
Temporary Total Disability (Time Loss Compensation)
If your workplace injury caused you to be unable to work for a period, you likely received partial or total temporary disability benefits, or time-loss compensation benefits, during that period. However, for a variety of reasons, your employer or its insurance company may not have paid you these benefits when you were entitled to them or may have paid you too little. Your employer may offer to settle with you for a lump-sum amount in exchange for your agreement not to pursue further compensation.
Types of Settlement Arrangements
There are two primary types of workers’ compensation arrangements: lump-sum and structured settlements.
In a lump-sum settlement, you will sign a workers’ compensation agreement that forfeits certain rights in exchange for a one-time, lump-sum payment from your employer or its insurance carrier.
In a structured settlement, you will instead receive smaller payments over time, such as one year, 10 years, or more.
Considerations in Deciding Whether to Accept a Settlement
First, consider that a settlement may be a guaranteed benefit. If you do not accept the settlement and instead pursue your claim through a hearing at the workers’ compensation appeals board or litigation in the state court system in your state, the judge may rule in your employer’s favor, leaving you with little or no benefits. On the other hand, you may prevail and actually recover more than the settlement offer. A settlement may be a guarantee to provide you with certain benefits and eliminate the risk associated with litigation.
A second consideration is that you may need to give up your right to future medical treatment for your injury (if your state allows you to waive this right). If you anticipate needing surgery, expensive medication, or multiple doctor visits, it is probably not in your best interests to settle.
A third consideration is that settlement is not permissible in every state at every point in a workers’ compensation claim. We discuss this further below, but consult with an attorney about your settlement options, especially if your employer has offered you a specific settlement offer and a lot of money is at stake.
State Rules on Workman’s Comp Settlement
Settlement is not permitted at all stages of a workers’ compensation claim in all jurisdictions. If you have not received a settlement offer, do not assume that your employer is not interested in settling your claim. It may be that the law does not permit your employer to engage in settlement negotiations with you until your claim reaches a certain point. For example, some jurisdictions do not permit settlement regarding whether a workers’ compensation claim is allowed or denied. In those jurisdictions, if you meet the requirements for a workers’ compensation claim, the claim is allowed, and if you do not meet the requirements, your only option is to appeal the order denying your claim.
Another area in which several states do not allow settlement is with respect to medical benefits. Some states permit you and the employer or insurance carrier to enter into a settlement agreement that precludes you from coming forward and having your medical bills paid for by your employer in the future. Other states view this as unfair to the employee and may require the employer to pay medical bills notwithstanding any settlement agreement between the parties.
Many states require a judicial review of a proposed settlement agreement. This is particularly true if your claim is pending in a judicial proceeding, either at the administrative hearing level or the state court level.
If your case has been to a hearing or court, a judge will review the proposed settlement agreement and approve it unless some provision of the agreement violates the law.
What is, and is not, permissible with respect to settlements is typically not reflected in state statutes. For example, Oregon does not have a statute that allows settlements concerning medical benefits. However, attorneys will and often draft settlement agreements that extinguish a worker’s right to future medical benefits. An attorney in your area who is familiar with workers’ compensation will help you to determine what settlement options you have and whether it is in your best interest to accept a settlement offer.
How Long Can Your Workers’ Compensation Case Last?
The first major factor in determining how long a workers’ compensation case can last is the severity of the injury or injuries sustained in the work-related accident. In most cases, where surgery is required, the physician will need to wait a minimum of six months and typically up to twelve months before determining that the injured employee has reached maximum medical improvement and is ready to be released with their final impairments and work restrictions in the case. As a result, most surgical cases last longer and take more time than non-surgical cases.
Another important factor, in addition to the extent of injuries and whether the injured employee requires surgery, is whether the case is accepted or denied by the employer and its insurance carrier. In an accepted case, at least in theory, the case can proceed more smoothly and have a faster start and hopefully a quicker end and resolution than one that is not accepted. However, this is an oversimplification, as even an accepted case can drag on for months or even for a year, two years, or more.
Combining Disability Awards and Social Security
If you are receiving Social Security Disability benefits and are approved for a workers’ compensation settlement, you must notify Social Security.
The Social Security Administration (SSA) does not allow for double payments for a similar disability. The SSA’s formula for calculating offsets to disability payments takes into account an individual’s age, work history, and contributions to the Social Security system throughout their working lifetime.
Frequently Asked Questions (FAQs)
What is the maximum amount I can receive for a workers’ compensation settlement?
The maximum amount you can receive depends on the state in which you were injured. There is no federal limit on workers’ compensation settlements.
Should I settle my workers’ compensation claim before or after surgery?
It is generally advisable to wait until you have reached maximum medical improvement (MMI) before settling your claim. MMI is the point at which your injury is no longer expected to improve with further treatment. Settling before MMI could result in a lower settlement amount.
How can I negotiate a higher workers’ compensation settlement?
You can negotiate a higher settlement by gathering evidence to support your claim, being prepared to discuss your settlement demands, and considering hiring an attorney to represent you.
What are some of the risks of settling a workers’ compensation claim?
Settling a claim means that you are giving up your right to pursue further legal action against your employer or the insurance company. You may also receive a lower settlement amount than you deserve if you negotiate without proper representation.
