In a career, stretching over three decades, as a Florida Bar Board Certified Workers’ Compensation attorney, I am often asked by clients about settlement. These questions vary and generally they focus on: When should I settle; under what circumstances should I settle; for how much should I settle; and what are the ramifications of settlement. What follows is a brief and somewhat simplified answer(s) to these queries.
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When should I settle?
My response is . . .”Does your doctor believe you are now or soon to be a surgical candidate?” If the answer is yes, I recommend that you wait to settle as the cost of surgery and the unknown result of surgery can be far beyond what was reasonably anticipated. Why take the chance when the unknown is the financial responsibility of the employer/carrier. Additionally, unlike past days when reaching MMI (maximum medical improvement) was a requirement to settle, it is imperative to discern if your medical care is stabilized.
Under what circumstances should I settle?
This is a very difficult question to answer as each case is quite different. Primarily you focus on what is in your client’s best interest. Sometimes, the risk(s) of continuing the process of receiving benefits (i.e. money and/or medical) do not out weigh the fight. Legal defenses such as MCC (major contributing cause) and apportionment, to name a couple, can be difficult to overcome and expose a claimant to paying costs of litigation. Other issues to consider center on the effect this case has on personal, financial, and psychological interests. Generally speaking; however, most workers’ compensation cases settle especially since mediation is mandatory which gives you, the injured employee, a say-so in your future.
How much do I settle for?
Fortunately or unfortunately settling the indemnity or lost wage issue in a workers’ compensation case is a matter of numbers. Simply put, what is the employer/carrier’s exposure for past and future temporary total, temporary partial, impairment benefits, and possibly permanent total disability benefits. A qualified attorney, who at times is a self made accountant, can calculate unpaid wages, reduce same to present day value, and prepare a reasonable sum to be demanded. Please note settlement is strictly voluntary so a demanded sum may not be what the employer/carrier offers or what the case actually settles for. Then there is settlement of the medical benefits, which is by no means simple. It involves what treatment or course of care can reasonably be anticipated and for how long and at what price. Although somewhat speculative, a seasoned attorney can provide the benefit of his expertise in calculating same. In the end however, this is the risk you take should the unexpected occur. It is not uncommon anymore to leave medical benefits open or unsettled when resolving a workers’ compensation case.
What are the ramifications of settlement?
On the one hand, all issues are resolved and you can control your own employment and medical issues. The employer/carrier no longer dictates if you get paid, when you get paid, or how much you get paid. Similarly, they no longer pick your doctors and when you can see your doctors. You are free to make your own decisions. However, this freedom comes at a cost in that settlement is final and forever. You have no recourse. You assume all risks. So, if the unexpected happens, you no longer have the security afforded by an insurance company with deep pockets.
In conclusion, picking a highly qualified seasoned workers’ compensation attorney is paramount not only during the litigation phase of a case, which is our forte, but in providing valuable consultation if and when you settle.