The value of a North Carolina workers' compensation claim depends on many factors. These factors include the date of your injury, the amount of your compensation rate, your work restrictions, your permanent partial disability or impairment rating, your job opportunities and efforts to find a job, and numerous other factors such as your age, educational level, and general health.
The date you were injured is important, because after the 2010 elections when the Republicans took over the state legislature, one of the first things they did was to reduce the duration of disability benefits payable to the most seriously injured workers. This new law went into effect on June 24, 2011. Anyone injured on or after that date is limited to 500 weeks of temporary total disability benefits, unless they meet one of two small exceptions to that 500-week cap. People with the same injuries and disabilities that were injured before that date do not have a cap on the duration of their benefits and can theoretically draw a workers' compensation temporary total disability check for the rest of their lives. So the first factor in determining the value of your case is, were you injured before or after this date on which benefits were reduced?
The second important factor is, what is your compensation rate? The compensation rate is an amount that is two-thirds of your average weekly gross wage for the 52-week period before your injury, in the employment where you were injured. One of the first things I do when I take on a new client is calculate their average weekly wage to make sure that the insurance company is paying the correct compensation rate every week. I have found some fairly egregious errors in average weekly wage. The most spectacular calculation mistake I found was a few years ago, when my new client told me his compensation rate and asked whether bonuses were supposed to be included in the calculation. The answer is, yes, bonuses, overtime, commissions, and all types of cash compensation, and even in-kind compensation such as use of a car, truck or housing, are supposed to be included in the calculation.
Well, it turns out that this man had a salary of about $37,000 a year but he worked for a company that had paid him an additional $35,000 in bonuses over the course of the year. When the insurance company calculated his average weekly wage, they did not include the $35,000 bonus. That big bonus divided by 52 weeks is $673 per week, and the compensation rate on that additional $673 per week is approximately $448 per week. Because they had not included the bonus, they were shorting this client $448 per week in workers' compensation benefits. I jumped on that and got it straightened out pretty quickly for my client.
Your work restrictions from the treating doctor are the next big factor we have to consider. If you are sent back to work full duty, no restrictions, then you probably do not have any eligibility for ongoing temporary disability payments. Any settlement you get at the end of the case would be based on your permanent partial disability impairment rating, discussed below. However, if you do have restrictions from the treating doctor due to the work injury, and those restrictions hamper your ability to earn money, then you might be entitled to ongoing temporary total or temporary partial disability checks from the insurance company. Both of these benefits have a duration of 500 weeks for people injured after the magic 2011 date, and you are entitled to choose whichever method of settlement of your case provides you with the most money.
If your restrictions are serious enough, you might still be on temporary total disability and completely unable to work, and that is going to be the biggest potential pot of settlement money for you. If you can return to work but you have to take a cut in pay because of the restrictions, then you might be due two-thirds of the difference between your pre-injury average weekly gross wage and your current, restricted, average weekly gross wage. If you made $800 per week before your injury and now you can only make $600 per week, then the insurance company may owe you a permanent partial disability check that is two-thirds of the $200 difference, or $133 per week. If there are no restrictions, then you probably won't qualify for either temporary total or temporary partial ongoing disability payments, then your permanent partial disability impairment rating is your only choice.
A doctor assigns a permanent partial disability rating, or impairment rating, when you have reached maximum medical improvement. An injury that requires surgery to repair it will typically have a rating of 10% or more, depending on the outcome of the surgery. Non-surgical injuries will typically have less than a 10% rating. North Carolina has a rating guideline put out by the Industrial Commission. If your settlement will be determined by the rating, you are entitled to get a second opinion on the rating from a doctor of your choice at the insurance company's expense. However, let a workers' compensation lawyer help you choose that doctor because otherwise, you will not benefit from that second opinion. A doctor who knows what he or she is doing has to be selected. An injured worker can accept payment of the rating and keep the medical coverage open for two years or more, rather than settle on a final basis.
If you have been released to the doctor to return to work with restrictions, and your employer of injury has no modified work for you to do, then you must engage in a “diligent and reasonable job search” in order to maintain your disability status and continue to get the temporary total disability checks. Here at the Bollinger Law Firm, we provide our clients with a log on which to record their job search activities so that it will be done in a neat and logical fashion in case we have to present evidence of the job search at a hearing. Generally speaking, a diligent job search is three or more job inquiries per week. A reasonable job search means that you are making job inquiries for positions that are within your intellectual, educational, and experiential abilities, and are also within your physical restrictions from the doctor. The 2011 law requires this job search to be conducted within a 50-mile radius of your home.
These are some of the most important factors determining the fair settlement value of your workers' compensation case. The cost of future medical treatment can also be factored in, but that usually does not add much value to the settlement. These are the most important things we look at when we start to evaluate a case but there can be other factors that have some bearing on settlement value. An individual who is well-spoken and would present himself well at a job interview might be viewed as having a better chance than someone else in getting a new job and thereby stopping the payment of the weekly benefits, which might reduce the settlement value in the eyes of the insurance adjuster. However, a client who has performed a very physical job his entire life and did not finish high school, and who is now over 50 years old, might be viewed as someone who has a very low chance of getting back in the work force after his injury, and that intangible factor would possibly increase the settlement value of his case.
Everyone's case is different, and a final settlement ultimately is the amount of money that the injured worker and the insurance company can agree upon to settle the case. There really is no hard and fast formula that we can use to determine settlement value, except for the PPD rating in the few cases where it is appropriate. It often comes down to several of these factors and the experience of the lawyers who were representing you, the injured worker, in negotiating the deal for you. An experienced lawyer, a Board Certified Specialist in Workers' Compensation Law, can help you maximize the settlement value of your case. The insurance company's goal is to pay you as little as possible, so if you want to maximize the settlement, you need to understand all these factors and how they play into the final result.
If you are not represented by a lawyer, call me for a free consultation. I will be happy to go over your case with you and help you to figure this out, at no charge. It is part of my free consultation. Bob Bollinger