Settlement Agreements

I am at a bit of a loss to explain the new provision in our workers compensation law which allows for lump sum settlements. (HB 2123)    It is a poorly written provision, passed with no public hearings, for purely political reasons. There are so many unanswered questions and issues and processes which will need to be developed, that I cannot begin to explain to you how these new settlements will be negotiated, approved, or paid. So, definitely topics for another day as we know more answers.

For now, what we do know is the effective date for this legislation is January 2012. So, no settlement agreements before that date. The new statute requires the worker be 55 years old before a settlement can be considered. (this age requirement drops to 50 over time) The settlement amount must be paid with a periodic payment schedule, rather than a single lump sum. (details of what this may require or allow are unclear) Settlement agreements will have to be approved by the Board of Industrial Insurance Appeals. (details are also unclear, other than the Judges may not give legal advice) Once approved, the settlement agreement will resolve all aspects of the claim, except future medical care. (although, whether this is anything more than a hollow promise of future treatment remains to be see)

I can also tell you to be cautious. I will not suggest that under no circumstance should an injured worker consider such a settlement agreement. Now that these agreements are allowed, we will see more benefits being denied and disputed. Given the absence of the sure and speedy safety net which injured workers were promised, there may be situations where such a settlement arrangement may be the best course of action. That said, the Department and Employers have more experience with workers compensation and are under no financial hardship or duress. You won’t necessarily know what you are entitled to, what to ask for, or what’s fair under the circumstances. An unrepresented worker will be at a disadvantage – you will not be bargaining from equal positions. If you are not already represented by an experienced workers comp attorney, consider hiring one. Feel free to take that with a grain of salt if you think it’s self-serving. But, I didn’t write the law, in fact I opposed it. I can protect my clients. Who will protect those who don’t have an attorney? These settlements are risky for unrepresented workers and any cost savings to the system comes from workers getting less than they would otherwise be entitled to receive. So, be cautious. Be informed. Get good advice.

2 thoughts on “Settlement Agreements

  1. My husband injured his back at work in 2006, after receiving all conservative treatment, his AP recommended surgery. Approximately 6 months later the surgery ways finally approved by L&I. Over the next 4 years his condition remained too unstable to return to work or participate in any type of physical therapy, an IME was done and the results were inconclusive, “no decision can be made due to IW medical instability.” His claim, basically fell into limbo, he continued to receive his L&I checks,but no medical treatment. This eventually caused him to fall into a very deep depression with suicidal thoughts. Fortunately L&I eventually approved 4-6 months of behavioral health treatment. Due to the dedication and persistence of his counselor, an appointment for him to be seen by a medical provider was finally approved, an MRI was ordered and he was then referred to a neurosurgeon, who recommended another surgery. While waiting for approval from L&I his condition became so bad that he went to the ER and surgery was performed the next day. Since then he still hasn’t had any physical therapy, or any kind of return to work treatment. January of 2013, he had finally had enough, and made a call to his claims manager saying that he wanted to close his claim. Within 3-4 weeks an IME was performed, a settlement letter was sent and the claim was closed without the claims manager even discussing the IME results or amount of the settlement offer with my husband. The claim was closed on 2-1-2013; and the settlement was considerably less than anticipated,considering everything he went through. What factors are considered when settling a claim and is it too late to appeal?

    • I can’t tell if you are in Washington State or not? If you are, and the closing order was issued on 2/1/13, then you are most likely past your 60 day appeal period (unless there was quite a delay in your receipt of the order, or some written protest was filed?). However, in order to get the claim closed, there would have had to be evidence in the file that your husband was able to return to work in some capacity, and you don’t mention this? Formal “settlements” in Washington are required to go through a formal process at the Board of Industrial Insurance Appeal, and will be approved only if they are in the best interest of the worker. My best advice at this point is to get to an attorney in whatever State the claim is based.

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