What Are Workers’ Compensation Compromises and Releases?

Posted on Wednesday, March 13th, 2019 at 3:45 pm    

A compromise and release (C&R) is a way to settle your worker’s compensation claim. In Virginia, these are commonly called Full and Final Settlements, whereas in North Carolina, these are commonly called Clincher Agreements. These kinds of settlements are generally used for workers who are disabled from their pre-injury job and will likely need future, long-term medical care. There can be settlements even when the worker returns to his/her former job – based on the understanding that the worker will need continual funds for medical treatments.

These full settlements mean that the entirety of the case—both the future indemnity (some portion of the value of the future compensation checks the worker would likely receive), and the future medical value of the claim (some portion of the value of the future work injury care that the injured worker will likely receive for the remainder of his or her life) are completely resolved. In exchange for a lump sum which represents these two sides of the injured worker’s case, once the final settlement Order is entered by the Commission, then all of the ongoing benefits for both weekly checks and medical stop, permanently.  

General considerations

There are many considerations that you will need to review with an experienced North Carolina or Virginia work injury lawyer depending on where your claim is:

  • Have you reached maximum medical improvement? Workers should usually not consider any lump sum settlement until they know the seriousness of their injuries. Typically, workers should continue treating with their doctors until it’s clear additional medical care won’t improve the worker’s health.  Once the worker has reached his/her maximum possible health, then a compromise and release may be advisable. Also, workers who reach MMI may still need to treat with doctors so their condition doesn’t get worse, or to simply assist with ongoing pain management.
  • What is the level of your permanent work restrictions? There is a continuum of SEDENTARY, LIGHT, MEDIUM, HEAVY or some combination thereof. Usually these restrictions are determined via a Functional Capacity Exam (FCE). Then within the FCE, there are sometimes some additional specific restrictions as to the injury itself. (e.g., no overhead work).
  • What is your lifelong job skill set prior to your work injury? For instance, if you have spent your entire life in manual labor, and you are now permanently restricted to sedentary (desk or sit-down work), it may be very difficult for anyone to find you a job. This will make it more likely that you will finish out the entirety of your Award and that you should receive a larger portion of your potential future payout in lump sum. On the other hand, if you have numerous skills outside of manual labor and you are highly educated, and you have physical injuries, your physical injuries will likely have less effect on your future job prospects. In that circumstance, the settlement value of your claim would be lower.
  • What is your pre-injury average weekly wage? (AWW) It’s important to know this as your wage determines the amount of your comp checks each week (2/3rds of your AWW) and hence, the higher the AWW, the higher the comp checks, and also the higher the settlement value.
  • How old are you? We all know that typically, severe injuries take longer to heal or may not heal if an injury occurs at age 57 vs. age 27. In addition, it is much harder to begin a new career with restrictions at an older age than it is when a worker is young.  
  • What type of work injury do you have? Is it a partial disability or a full disability? If it’s a partial disability, you may be able to work at another job but for lesser pay. Full disability generally means you won’t be able to work again at your pre-injury job, and you are either 100% disabled, or restricted to such a degree that you have not been able to find a job within our physical restrictions.
  • Does your injury qualify for additional compensation above and beyond being unable to work? Some injuries such as loss of vision, serious disfigurement, or an amputation may qualify for additional benefits. Your attorney will help you obtain a proper medical evaluation so you can claim this additional pay.
  • Are you eligible for Medicare or will you be eligible soon? If so, then you will likely have to enter into a Medicare Set Aside agreement so it’s clear what workers’ comp will pay for your medical bills and what Medicare will pay.

Additional questions include:

  • What are the tax consequences of a settlement?
  • How do you determine what medical expenses you will have for the rest of your life?
  • How is the amount of your claim adjusted because you are getting the money in a lump sum instead of payouts through the rest of your life?

Some of the answers to these questions are general. Most depend on the individual facts of your case.

When a settlement is truly a compromise rather than just paying a lump sum for certain benefits later.

The employee and employer may have different ideas on how much medical treatment you will need in the future. The amount that will be included in the settlement needs to be artfully negotiated so that the worker gets the best amount. Experienced work injury lawyers understand the legal arguments. They also work very carefully with your doctors to fully understand what treatments, medications, and other health care costs you’ll have. In some cases, it can be fairly clear that the worker will need to see a physical therapist several times a month. In other cases, where the health effects of the work injuries may deteriorate over time (such as when he/she has a disease), it can be harder to determine what care is needed. In other situations, the injury may be so severe that it is clear that as the worker ages, home healthcare or attendant care will be required, with potential significant future costs.

At the end of the day, unless dealing with a Medicare situation, the portion of the claim and any settlement that deals with future medical care comes down to the comfort level and a frank discussion between the injured worker and his or her attorney. How likely is it that the injured worker will require future surgery? How likely is it that the injured worker will return to employment and obtain health insurance to cover the cost of such surgeries? Are the contemplated future medical costs based in reality or are they just “worst case scenario” medical costs?

There are several reasons for entering into a compromise and settlement

  • First, it means you control the funds instead of the employer. If there’s a settlement, you can decide which doctors you will see – you don’t have to see the company doctors. You get to pay the doctors directly which means you don’t have to argue about the bills with your employer or the insurance company.
  • Second, you’re not on the defensive. You don’t have to worry about the employer constantly trying to say that you can return to work or that you’re not looking for work if you can work with restrictions.
  • Third, it means you won’t need to work with a nurse case manager. While the manger can be useful, at times, the case manager is often trying to find a way to terminate your benefits by showing you’re not complying with the medical advice you’re given. It also means more privacy. In a settlement, it’s just you and your health care providers.
  • You won’t have to work with the Vocational Counselor anymore. Let’s face it, although vocational rehabilitation is supposed to find you another job within your restrictions, the real game is to impair your case by tripping you up when you forget to come to meetings or follow up on some stupid job lead that you have no interest in. Then they drop the hammer and try to cut you off of benefits. Settlement gets you out from under those folks.
  • It also means that you can invest the funds if you get a lump sum payment. With a long-term payout, you don’t have access to the funds now. With a compromise and release, you can use the lump sum to make wise choices such as paying off a mortgage or starting a business.
  • It means your family has an inheritance if something should happen to you. If you were to die during receipt of your workers comp funds from an unrelated cause, in most cases, all payments would cease. By getting a lump sum, now that money is in your account, available for your use, or to pass on to your loved ones in case something should happen to you.

It is also important to understand that full settlement means just that—it settles all aspects of your case. It is possible to use the C&R to just settle just settle the wage issues (indemnity-only settlements),  but leave the medical payments open. The second scenario is useful, for example, when someone’s future healthcare costs are so extremely high or at this point unknown that it makes a full settlement impractical. In such cases, settling the indemnity side alone—providing a lump sum to the injured worker—while leaving the medical portion open, may make sense.

Then again, many insurance carriers simply refuse to engage in such settlements and insist on an “all or nothing” approach. Either the entire claim is resolved, or not at all.

There may be additional factors

Injured workers need to review what other benefits they may be entitled to with time or due to a disability. Some workers may be entitled to Social Security Disability. (SSDI) Workers may also be entitled to Social Security retirement income when they reach age 62. They may also be entitled to Medicare, Medicaid, or other government benefits.

Experienced lawyers will also review the workers’ family situation. Who can the employee rely on for support? The education and ability to earn another type of income needs to be considered. The severity of the injuries needs review. The more doctors and healthcare providers the patient requires, the harder it becomes to make an evaluation of how much money is needed for long-term health problems. If a worker has mental health difficulties, it can be extremely difficult to know how much psychiatric and psychological help the worker needs.

At the North Carolina and Virginia Law office of Joe Miller Esq., we have helped thousands of workers get just recoveries for workplace accidents and illnesses. We’ve been fighting for clients for more than 25 year. We’ll explain when you should consider a settlement and what the terms of the settlement should be. For help now, 1-(888) 667-8295 or complete my contact form to schedule a free appointment.