Final Resolution of Claims & Attorney’s Fees
Established workers’ compensation claims are eventually resolved by the workers’ compensation board (WCB). The WCB will either permanently close a case where all of the issues have been resolved or tentatively close a case that requires no ongoing oversight.
As a claimant’s case proceeds through the workers’ compensation system an injured worker will continue to receive benefits so long as there is a disability requiring ongoing medical treatment which prevents the claimant from working. However, typically, as time goes by, an injured worker will reach a plateau in medical treatment. It is at this point when the board will determine that either no further disability exists or that the worker has reached maximum medical improvement and suffers from a permanent disability.
If a permanent disability exists, the next step is determining how the claim will ultimately be resolved. If the injuries involve extremities such as the hand, foot, leg, arm, etc., the WCB has established schedules that pre-determine the amount of weekly cash benefits the worker is entitled to. The amount of weeks of compensation is for the most part determined by the percentage of loss of use to the extremity. For example, a worker who has sustained a 100% scheduled loss of use (SLU) of a leg would be entitled to 288 weeks of compensation at weekly rate of 2/3 of the established weekly wage. If the scheduled loss of use is 25%, the worker would be entitled to 72 weeks of compensation. The percentage of disability is determined by agreement or by the judge when there are conflicting medical opinions. If a worker receives a scheduled loss of use award, the claim will not be closed. Rather, the worker will maintain the right to seek additional benefits should the injury require future medical care or again result in the inability to work. A worker who sustains a loss of use to an extremity that is greater than 50% may be entitled to be classified as having a permanent disability instead of accepting the scheduled award. This could result in substantially more cash benefits over the life of the claim.
Permanent injuries that affect the neck and back, as well all other work related injuries and illnesses are considered non-schedulable injuries. These cases are often concluded with a determination that a worker has sustained a permanent disability (partial or total) entitling a worker to a certain number of weeks of weekly compensation. However, this determination is not pre-determined as a scheduled loss of use award, but rather determined after a complex analysis of the severity of the disability combined with the vocational ability of the worker. This reflects an attempt to make an award that simulates the worker’s loss of wage earning capacity as a result of the permanent disability. The severity of the disability will be determined by the often conflicting medical reports (treating doctor vs. insurance company doctor). The vocational aspect of the analysis is based in part on the medical records, vocational reports, and testimony of the worker. Vocational analysis attempts to determine whether the worker possesses skills, education, and experience to perform other work.
There is no limit on the number of weeks of entitlement to weekly cash benefits if a worker is found a have a permanent total disability. The totally disability finding indicates that the worker has a complete loss of wage-earning-capacity. In cases were the worker is found to have a permanent partial disability (the majority of the cases) the range of weekly benefits is 225 weeks for loss of wage earning capacity of 15% or less to 525 weeks for loss of wage earning capacity of greater than 95%.
As illustrated above, this system sets a cap on benefits for most injured workers based upon the assumption that the worker can return to work in some capacity. However, a worker who is found to have a 80% loss of wage earning capacity or greater can request ( prior to the end of the benefit period) a subsequent finding of total disability if there is a change in the claimant’s ability to return to work or wage earnings capacity.
In addition to schedule loss of use awards and the classification of a permanent partial or total disability, the WCB allows the parties to negotiate a final resolution of the case. This is typically done through a written negotiated contract called a Section 32 Agreement whereby some or all of the issues are resolved with the worker waiving some right to future benefits in exchange for a lump sum of money.
This type of agreement usually addresses the worker’s right to receive future cash benefits, future medical treatment or both. Once the parties have reached an agreement and it is approved by the WCB, the worker will no longer be entitled to receive cash and or medical befits related to the workplace accident or illness and it is almost impossible to re-open the claim. However, the worker will receive an immediate lump sum payment as well as the elimination of anxiety associated with an ongoing claim and uncertainty of a judicial determination.
The insurance company representing the employer will negotiate the lump sum payout taking into consideration various factors such as the extent of the injuries, the age of the claimant and his or her ability to return to work and the probability that future medical treatment will be warranted. There is no exact formula for determining the amount of the settlement, however, the amount is almost always higher when the workers waives the right to future medical costs as compared to just waiving the right to receive future cash benefits. A worker considering waiving the right to future medical care should take extreme caution; medical treatment may be extremely costly and any future medical treatment will be his or her sole responsibility.
As to attorney’s fees upon conclusion of the case, it is common practice for attorneys to request a fee of approximately 15% of the value of the scheduled loss of use award or section 32 agreement. Fees associated with classification of permanent injuries are requested based upon the percentage of disability at the time of classification. All requests for attorney’s fees over $500.00 must be in the form of a written application to the workers’ compensation judge. The judge will review the amount of work and time involved in the representation and the worker will have the right to question the requested fee or consent to fee requested. No attorney is entitled to a fee in a workers’ compensation case unless and until it is approved by the WCB.
As outlined above, the final resolution of a workers’ compensation claim is not straightforward. Each person’s needs must be carefully considered prior to deciding how best to resolve the case. An experienced attorney should be consulted to assist with this decision-making process, especially when it comes to negotiating a fair and just settlement.
If you have suffered an unfortunate accident at work, or have been the victim of a medical condition caused from the nature of your job, you may be entitled to significant compensation from your employer or other responsible party. Don’t go it alone. The Law Offices of David Smoren, PLLC has the expertise and resources to file and prosecute a successful workers’ compensation claim on your behalf. Employers have attorneys protecting their rights and so should you.
The Law Offices of David Smoren, PLLC has successfully handled hundreds of workers’ compensation claims resulting in millions of dollars in compensation and medical benefits for our clients. There is never a fee unless we are successful in recovering benefits for you. Call 718 225-6700 today for a free phone consultation or to arrange for an office or in home consultation or simply post a comment or question on the contact form.