In general, when all is said and done, the bottom line for most clients is the answer to this question, “What is my case worth?" The system is, after all, called compensation. Unfortunately, this question is much easier to ask than it is to answer since there are many issues to consider when determining the value of a case.Though nothing is better than getting a comprehensive evaluation by an experienced workers compensation attorney, the following is a general recap of the specifics factors attorneys and insurance asjusters look at in evaluating a claim's worth.
Many times your expectations which might be quite different from reality and you may need to be more realistic. A workers’ compensation case is very different from a personal injury case. The injured workers cannot sue their employer for negligence and they do not get any compensation for pain and suffering. There are also no punitive damages to recover. Additionally, all awards and settlements are based, in part, on an employee’s average weekly wage. Higher wage earners get higher settlements up to a certain point. There is a limit to the value of a workers’ compensation case. As of July 1, 2012, the maximum weekly benefit is $935.00 per week up to five hundred (500) weeks.
I. Factors in determining the value of a claim
A. The first factor: Is the claim contested?
If the claim is contested, in full or in part, it decreases the value of the claim. Thus,your attorney will need to evaluate the chances of prevailing at a hearing, the evidence in your favor, and whether you will be able to testify appropriately and willing to go through the litigation and, perhaps, the appeal process. Other factors may include your likeability, your credibility, and the Virginia Workers’ Compensation Commission's trend regarding specific legal issues which may be involved in the case. Is the risk of a hearing such that you will get actually nothing instead of settling for something? Would you be better off settling or is the risk of a hearing minimal?
B. The second factor: What is your average weekly wage?
This will affect how much compensation you will receive for lost wages and for permanent partial disability benefits. Make sure that the calculated benefit has been calculated to the highest possible benefit by getting a 52 week wage statement from the insurance carrier. Many times, employers do not inform the insurance adjuster about overtime or bonuses, which should be included. Double checking the adjuster's math is helpful. When a lot is at stake, I will even submit the wage documents to the Commission for the Commission to determine the average weekly wage. If you have a second job which is substantially similar to your work injury job, then that income can be added to determine your average weekly wage.
C. The third factor: How much temporary total disability benefits are available?
When you are receiving temporary total disability benefits, each year that goes by decreases the value of your future temporary total disability benefits by 52 weeks. Thus, if you have received 450 weeks of total temporary disability benefits, there is very little value left in the lost wage portion of the claim.
Temporary total disability benefits are also cut short by a claimant returning to work in light duty capacity or being released back to work full duty. Thus, if you are on total temporary disability benefits, there needs to be an estimate of how long you will remain totally out of work. Will the treating doctor keep you totally out of work for the entire 500 weeks? Most often, doctors are very reluctant to do that and will keep a claimant totally out of work for a while but then gradually start returning them to go back to the work force with restrictions.
Factors that will help you determine the length of time are: (1) whether your employer will be willing to accommodate any permanent work restrictions; (2) will you have any permanent work restrictions; (3) do you have any other work skills; (4) do you have a GED; (5)your age; (6) do you have a criminal record; (7) the economic environment within your locality; and (8) can you handle ruthless vocational rehabilitation attempts by the insurance adjuster.
Additionally, you need to evaluate if there is any exposure to the insurance company for permanent total disability benefits. If this is the case, there is no 500 week limit, and the value would be based upon your life expectancy. To have a permanent total case, you would need to have a loss of range of motion to both legs, both arms, loss of both eyes or ears, or a brain injury rendering you incapable of gainful employment.There is a lot of medical evidence that goes into this type of evaluation but the payoff could be great and is worth the effort to pursue.
D. The fourth factor: Are you entitled to any permanent partial disability benefits?
If you have a permanent loss of range of motion in a specific body part(s) (an appendix of the body parts is at my website : www.injuredworkerslawfirm.com), when you have reached maximum medical improvement you are entitled to permanent partial disability benefits pursuant to a math formula based upon the impairment rating given by your workers’ compensation treating physician. When settling a claim, you may not yet be at maximum medical improvement and, thus, you can estimate the approximate impairment rating. However, if you receive 500 weeks of lost wages, you would not receive any additional funds for a permanent partial disability.
E. The fifth factor: What is the cost of future lifetime medical treatment related to their accident?
The injured worker is entitled to lifetime medical treatment related to the injury. The lifetime valuation of such an award and the uncertainty of what may lie in the future make it hard to determine the exact cost of lifetime medical care. It is important to include in the evaluation future potential surgeries, diagnostic tests, and future lifetime prescriptions. Additionally, a claimant is entitled to up to $45,000 of medical equipment. Thus, this also needs to be factored into some cases. In complicated cases, a life care planner can create a detailed cost analysis of the client’s future medical care costs. Another thing to consider is whether or not you want medical care from your workers’ compensation treating physician. Many times, there can be a conflict between you and the doctor that needs to be considered in valuing future medical expenses.
If you are on social security disability and entitled to Medicare, the Medicare set-aside will be calculated by CMS (Center for Medicare and Medicaid Services). However, there are still a lot of future medical expenses that Medicare does not pay. For example, Medicare has a deductible and certain prescriptions are not covered by Medicare; neither is mileage to and from medical appointments.
II. Coming up with an exact dollar amount
Valuing these benefits is simply figuring out what is due and whether it has been paid. The value of a case is driven primarily by the extent and severity of the person’s injuries. Other important factors to consider include the type, extent, and frequency of past medical treatment and the need for future treatment.
The main factors to look at are: (1) The income from the job and compensation rate; (2) the number of weeks of potential compensation remaining; (3) the inability to return to any form of work; (4) the ability to return to some form of light duty work and the availability of such work; (5) if there is a return to light duty work, the payment rate of the light duty job; (6) the permanent injuries to any extremity, hearing, or vision; (7) the cost of future medical treatment; and (8) the present value of these benefits.
In conclusion, valuing a claim for settlement is similar to a real estate appraisal. You really do not know how much a house is worth until it is actually sold. The same is true in the value a workers’ compensation case. The true actual value of the case depends on how much the insurance company is willing to pay and how much the injured worker is willing to accept. No two claims are the same, just like no two people are the same. However, using the above information, hopefully you can come up with an appropriate settlement value range that will help you know if you should settle your claim and if so, the appropriate range.