Author Archives: Karl Voigt IV, Esq.

Settling Your Workers’ Compensation Case

by Karl Voigt

Many of our clients have expressed an interest in settling their workers’ compensation case for a lump sum. And, statistically, most long-term workers’ compensation cases in Pennsylvania do indeed eventually settle for a lump sum. Sometimes a settlement is warranted. When it is, it’s important to know all about the process.

Historically, with our clients who have a long-term workers’ compensation cases, we don’t rush to settlement. Before we seriously discuss settling a case for a lump sum — which stops one’s weekly benefits — we like the assurance of our client’s medical status having plateaued. For example, it would be unwise to settle a case where an injured worker is facing a serious, injury-related surgery in the near future. Therefore, it is far better to settle after any major medical procedures are in the past. Once a client’s medical condition has plateaued, we want to make sure that they have a plan for what happens next. Do they plan on living off of the income generated by the lump sum? Are they going back to school? Have they applied for Social Security disability?

Once these conditions are met, it is usually the injured worker that places the initial demand to settle. Naturally, in some cases, the carrier has already put out an offer; most often, that offer is far too low and was made simply to initiate negotiations. Then the negotiations commence, usually between Claimant’s counsel and Insurer’s counsel or the adjuster. Nevertheless, the negotiation process can take as little as several days or weeks. Sometimes, however, months or even years. Patience is important during the process; we prefer a very methodical and deliberate approach to the process — this is the rest of your life we’re talking about.

Of course, there are two portions of your case generally that can be settled: wage loss and medical. That is to say, you can settle both, or simply settle the wage loss portion and preserve the insurer’s obligation to pay for any future work-related medical treatment. Is also possible to put a time limit on the latter portion. Namely, negotiations can result in an agreement that the carrier will pay medical bills for, say, two or three years following the settlement date.

There is absolutely no requirement that your case be settled. Particularly with cases involving very serious and worsening disability, it may be best for a case not to settle. If your attorney is confident that your benefits will continue without much challenge from the insurer, you can continue to receive weekly checks. However, due to inflation, you will find that the value of those weekly checks reduces over time. The cost of food and utilities goes up overtime. Rent increases over time. Unfortunately, there is no concomitant rise of Worker’s Compensation wage loss benefits.

Of course, the risk that the carrier will file future petitions against the injured worker is always there. However, we remain our clients’ lawyers and are also always there for our clients.

There are two primary factors in evaluating a case’s settlement value: degree of disability and amount of earnings loss. We generally say that assuming the same disability, the injured worker he used to make $50,000 a year settles for more than one who made $20,000 a year. On the other hand, assuming similar income, the worker who now uses a wheelchair to get around settles for more than the one who uses a cane. These are, of course, not the only factors in valuing the case, but they are the major determining factors.

Of course, if the worker was subject to an impairment rating evaluation and, as a result, is now limited to receipt of no more than 500 weeks of continued benefits, the insurer’s exposure to pay future wage loss is now limited.

If your case is in litigation, it will likely be subject to mandatory mediation. Since 2007 it has been mandatory that any cases entering litigation must engage in a mediation with a mediating Judge other than the presiding judge.

There is certainly no obligation to settle your case during the mediation; only your attendance at the mediation is mandatory. During that mediation, the mediating judge will sit down with you, your lawyer, and the insurers lawyer to determine if the parties can come to a “meeting of the minds”.

Once a settlement is reached, it must be approved by a judge, which means there is no check issued immediately, but rather only after a hearing is conducted. The injured worker will have to testify that he or she’s understands the agreement and, of course wishes for it to be approved. If the judge approves, and order will be issued by mail hopefully just several days later. Technically, the carrier has 30 days to comply with that order, although most do within 2 to 3 weeks. Naturally, as of the hearing, any and all weekly workers’ compensation wage loss checks cease.

As you can tell, the settlement process is full of potential pitfalls. When it’s time, however, it’s important that things be done methodically and comprehensively.

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What Are My Rights at an Insurance Medical Examination (IME)?

Karl answered this Pennsylvania workers’ compensation question on Avvo.com:

“What Are My Rights at an Insurance Medical Examination (IME)?”
Sometimes, the insurer gets to choose what doctor examines you. The carrier is allowed to have you examined for an insurance medical examination (IME) twice a year. The IME doctor is hired not to treat you but to express an opinion as to your current condition. The doctor may agree or disagree with your own doctor’s opinions. The insurance company can use their doctor’s opinion for a variety of measures, including trying to terminate your wage loss and medical benefits or trying to reduce your benefits by identifying jobs that you can do with a new employer.

The carrier is responsible for your travel there. That means you can request transportation, or ask in advance to be reimbursed for your own travel mileage.

When you arrive, you have the right to be seen on time. The doctor will conduct an interview and physical examination. No agents of the carrier should be present during either. Under no circumstances should you allow for any invasive testing. You should not do anything during the examination that causes a marked increase in pain. You should document your symptoms before hand and whether they change immediately following the examination.

Technically, the Act actually allows you to bring a doctor of your choosing to the IME. However, this is generally at your own cost and therefore it is a section of the Act rarely used

Always remember, however, that your own doctor calls the shots. If their doctor’s opinion leads to job shopping, or a job offer from your own employer it’s important to let your lawyer know immediately, so that you can get the best advice.

See Karl’s answer here:

http://www.avvo.com/legal-answers/workers-compensation-1633143.html?answered=true

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Can a Nurse Case Manager Talk to My Doctor?

Karl answered this Pennsylvania workers’ compensation question on Avvo.com:

“Can a IC’s Nurse Case manager talk to the Dr. after my appointment without my permission?”

No. As has already been pointed out, one of the first “red flags” that we see in WC cases is the involvement of a nurse case manager. He or she is simply not your friend, but an employee of the insurance carrier whose job it is to control your medical costs and the direction of your case. Customarily, we send out a letter addressed directly to the nurse revoking and rescinding any express or implied permission to speak with your doctors. Your doctors get a copy of the letter as well. Good luck!

See Karl’s answer here:

http://www.avvo.com/legal-answers/-pennsylvania-worker-s-comp-case–can-a-ic-s-nurse-1605795.html#answer_3514957blog

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Can Someone Tell Me What Does “NCP” Mean in a WC case?

Karl answered this Pennsylvania workers’ compensation question on Avvo.com:

Can someone tell me what does ncp meaning in wc injury case????

An NCP is a Notice of Compensation Payable. If you have received one, it’s good news. Without issuing this document, the carrier is not bound to pay any benefits associated with your work injury. If you got one, the carrier is now “on the hook” to pay your medical bills and wage loss benefits.

There are a few forms of NCP. A Notice of Temporary Compensation Payable is — obviously — like an NCP except it can be withdrawn by the carrier without it going to court. A medical-only NCP is an acceptance by the carrier to pay work-related medical bills, but not wage loss.

Even if you received an NCP, it is still important to verify that your average weekly wage, compensation rate and injury description are correct. If you question any of these, you should consult an attorney immediately to discuss options to correct it.

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Bureau of Workers’ Compensation Announces Statewide Average Weekly Wage for 2014

by Karl Voigt

The Bureau of Workers’ Compensation has announced the statewide average weekly wage for 2014. This directly affects workers who are injured in 2014. Generally, workers’ compensation is paid at 66 2/3% of an injured worker’s average weekly wage, up to a maximum as defined by the statewide average weekly wage. Section 105.1 of the Pennsylvania Workers’ Compensation Act requires the Bureau to calculate and publish the statewide average weekly wage so that statewide maximum compensation rates can be calculated. The statewide average weekly wage for injuries occurring on and after Jan. 1, 2014, is $932.00 per week. This represents a s 1.6 percent increase from last year.

As a result, the maximum weekly benefit an injured worker can now collect is $932.00. Therefore, any injured worker who earns more than $1,398.00 a week will be limited to this figure, no matter how much more they earn. Anyone whose preinjury earnings are between $1,398.00 and $699.01 a week will receive 66 2/3% in workers’ compensation. Anyone who earns between $699.00 and $517.78 a week will receive $466.00, which is half of the statewide average weekly wage. Anyone who earns $517.77 or less will receive 90% of their preinjury wage.

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Despite Teething Problems, Workers’ Compensation Automation and Integration System is Functional

by Karl Voigt

Despite Teething Problems, Workers’ Compensation Automation and Integration System is Functional

The Bureau of Workers’ Compensation’s  Workers’ Compensation Automation and Integration System (WCAIS) is now available online. Injured workers can access some portions of their claim online from their home computer.

If your case is in litigation, you may be able to access copies of assignments, hearing notices, exhibits, as well as transcripts. You may also have limited access to actually change your information online. As an example, an injured worker may change his or her address online through WCAIS. However, this will only make the change available to the Commonwealth; it will not change your address with the insurance company.

Injured workers can simply enter in some of their claim information to begin the registration process. They can then initiate access to their file by visiting: http://www.wcais.pa.gov

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New PA Supreme Court Case May Change the Landscape of Vocational Litigation

by Karl Voigt

A November 21, 2013 opinion from the Pennsylvania Supreme Court may have just changed the game in job availability litigation. Since 1996, workers’ compensation insurers have been able to try to reduce an injured worker’s wage loss benefits by alleging that they can return to hypothetical jobs. In an opinion published in Phoenixville Hospital v. WCAB (Shoap, Aplt) – No. 32 EAP 2011, the Supreme Court may have made that task far more difficult for carriers.

In post-1996 litigation, a carrier had to show that hypothetical jobs were available to the Claimant. The Claimant in Shoap was advised of hypothetical jobs and applied for those jobs. Because so much time had lapsed between the vocational counselor’s identification of the jobs and the notice to the Claimant, the jobs were no longer vacant. The Supreme Court did not allow for the reduction of her benefits

The Shoap case in essence maintains that the jobs must be open long enough for the injured worker to apply. In short, because most job identifications are that stale, carriers will likely have a very difficulty time meeting their burden of proof.

The text of the Court’s opinion can be found at:

http://www.pacourts.us/assets/opinions/Supreme/out/J-26-2012mo%20-%201016273591814727.pdf?cb=1

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