Employment Law Questions? Ask an Employment Lawyer.
Hello. Under worker's comp. laws you do not receive a payment based upon the injury itself or the surgery -- you will be paid a certain percentage for a "loss of function" to the body part that was injured -- but that percentage cannot be determined for months after the surgery and post-op therapy and treatment and you will be given a percentage by your own doctor and then the worker's comp insurer will put a percentage of disability on your injury/body, and then the worker's comp judge usually settles on a number somewhere in between. If there is no percentage of disability (you make a 100% recovery), then you will not receive this payment -- you will simply receive approx 60% of your paycheck as a worker's comp payment each week until you return to work and all of your medicals will be covered.
Your attorney is correct. Worker's comp laws do not work like a regular lawsuit. You are paid a weekly wage for a certain number of years (there is a limit to the number of years), and if you "settle" early, the comp insurer is only required to pay you a certain number of those weeks in a lump sum -- and your attorneys job is to try to make the comp insurer offer as many weeks in one lump sum as he can get out of them. In addition to the lump sum of your weeks, you are entitled to a payment for the percentage of disability that you have suffered to the body part that was injured. There really is nothing different that I can tell you on the matter -- but if yo are looking to confirm that your lawyer is not jerking you around or lying to you to get you to settle, I can tell you that he is not. Worker's comp laws STINK and the injured worker is the one who gets the short end of the stick in the long run.
The lump sum settlement is based on the number of weeks that you have left on your claim. For example, if you have 260 weeks to be paid for a "temporary" disability and you have been collecting for a year (52 weeks), then there are 208 weeks left on your claim -- so your lawyer will negotiate with that as the starting point and his goal is to get you a many of those weeks as he can in a lump sum settlement. (There are provisions for longer terms of payment for a "permanent totally" disabled person -- but in order to qualify for those benefits your injuries would have to be catastrophic -- such as a workplace injury that leaves you paralyzed -- and you could be paid weekly for the rest of your life, but then you would never be eligible for a lump sum settlement because there is no such thing as being able to sue for pain and suffering under the worker's comp laws).
The percentage of disability is determined using American Medical Association (AMA) guidelines on placing a percentage of disability on the loss of function to a body part. This is made when you reach a medical end (they cannot due anything further for you). As I said earlier, they will send you to a doctor and your own doctor and each put a percentage number on your end point disability -- and then your lawyer negotiates with the insurer to get the highest amount that he can get on your behalf -- which percentage number will probably be somewhere between your doctor's number and their doctor's number. The comp board then has a chart that they use for an amount for the loss of use of a body part and the percentage number that is placed on the body part that you have lost use of will be the percentage amount of the total loss amount that you should receive. Sometime the employer will try to claim that there is no loss of function in which case a worker's comp judge will make that decision in a hearing on the matter.
So, that's how the worker's compensation laws work and the formulas used to calculate percentages of disability.
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