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Negotiating a Settlement without an Atty in CA
#1
  • I worked part time and after 11 mos I had to tell my boss I could no longer physically do the work. I had no problems getting my claim accepted and everything has gone strangely easy unlike everyone's nightmare stories I have heard.
  • I received temp dis benefits of minimum (as I was only working part time) for about 1 year and then their Dr. said I was Perm & Stationary.
  • And that apportionment was 51% job related, 49% Previous condition. In the report the Dr mentions that I had symptoms of my condition prior to and sought medical treatment for the past 2 yrs prior to employment for occasional back pain. This is not correct, although I had an MRI done on my back 5 months before I began work, it was done as a precaution for a mild backache and since I had a history of kidney stones she said lets be on the safe side and check it out on a Dr's visit for another reason, I just brought up that my back hurt that day. I never heard back from Drs office about anything wrong with the test or any abnormalities in the MRI. Therefore I had no knowledge that I had spondylolisthesis as it often shows no symptoms, I don't feel I had any of the symptoms before that I have now. So because I had one MRI done, he apportioned it 49/51%, I guess. I didn't seek any medical care for my back until 5 months on the job, and 10 months after that MRI was done. I was not given my diagnosis until 1/2014! Regardless, I disagree that the condition was in any way disabling before work, otherwise how could I have done the job in the beginning? But I dont know if any of that even matters. Here is what is happening now...

I received a letter from CA State Fund, saying my Dr rated me at 20%, therefore with their adjustments they said I was 16% PD. and that was worth $8880. They agreed with the Dr's Report it says. Dr indicated future medical was necessary especially spinal fusion surgery. So they agreed to pay future medical and $160 for 55 weeks or I could take a C&R for 50,000 and no future medical

I wrote a letter back to them explaining that I was not likely to go with the C&R, and  they did not take my tension headaches into consideration in rating because I was not being treated for them by my orthopedic surgeon. And I thought the rating was calculated wrong, for occupation and other things. (My job was unique so I am not sure who picks out occupation code) (heard nothing back)

I then got a summary rating determination from workers comp board that said a Judge has ruled that my disability rating is 26% and that a judge has ruled that apportionment is not consistent with the law. And that maximum earnings awarded due to no wage statement? Therefore It was ordered that they pay me $290 a week for around 114 weeks and future medical. I was happy with this...until...

The next day I received another summary rating determination in the mail saying that a Judge ruled that in fact apportionment was within the law and that it was applied 50% and therefore my benefit payout was reduced to 13% and paid at amended amount of $160 wk, for 44 weeks. Which is $7,040.

Now I was prepared to fight the apportionment and maybe get a rating of 75/25 at worst as well as include the headaches attributed to my condition. But I have decided I would to get a C&R and negotiate a lump sum settlement.
I understand the implications this brings, but It is what is best for my family at this time. I am a 39 yr old  married mom of 4 kids, ranging from 8-17 and I will not likely be able to find many pt or ft  jobs with the restrictions that the orthopedic surgeon imposed. My company has no other jobs I can do. I am no longer an employee.
RESTRICTIONS: No bending, lifting, twisting. Weight lift restrictions 20lbs. No sitting or standing longer than 20 minutes without 5 minute opportunity to change positions.

I would like to ask for a settlement and I was eyeing a number of 190k. and a voucher for education benefits to get retraining. In the statement I am sending a list of the 3 surrounding counties and the costs of the surgery my doctor says I will need. " I think that provisions for future medical care should be made ....for physical therapy, medication etc ..and certainly to include surgical fusion."
The average cost of the surgery is 134k and I have listed each hospitals cost for the surgery that ranges from 99k to 240k. I also figured out the 26% diminished capacity of future earnings at around 55k for part time work and 147k for full time work. That is where I am getting the  190k. with no future medical

Does anyone have any knowledge of the difference between the first offer of 50k and what they will end up settling for? Even if they consider the apportionment what difference does it make when they have to pay out 130k plus for medical in the future or more...

I read that the restrictions set on you for future work is more important that the rating. The restrictions are not listed in the P&S report from Dr. but they are still in effect and haven't changed since my first appt. I also read that restrictions are reason for higher settlements. I am assuming that they will come up a bit from their first offer of 50k, but If I offer 190k will they come back with 60k? So I will have to go back and forth?  I obviously don't expect to get the full amount I am asking, but I thought the 50k was a high offer for an initial offer so they obviously have a reason for it being that high. My doctor even mentioned don't go with their first offer. :Smile But I think they will still be saving money in the long run by cashing this out.

Lastly, I do NOT want an attorney. Unless they were working for free...and maybe not even then. I have represented myself in family law court for 10 years after being BURNED by several attys, I also have assisted in the paperwork of a 3 year long divorce battle, and I have successfully defended myself in traffic and small claims court. I am familiar with the legal system, and have studied up A TON on this new field of workers comp law. I want nothing to do with an atty even if it means getting a bigger settlement. I am 100% anti attorney. I have been much more successful on my own then with whatever an atty has done for me. BUT in saying all that I realize that I still lack the inside experience that you can get from the entire process of this and I don't know what really goes on behind the scenes and in this process as opposed to what you read and how it supposed to be done, so that is why I am asking for any advice in this forum before I send in this statement to my adjuster.

If anything sticks out to anyone on any topic...please comment. Any little snippets of advice are appreciated.
 
Reply
#2
wow.
you are on top of things and have a good business-like approach to your own injury which is very rare. your familiarity with the american legal process obviously shows.
one area you missed--is the present value/future value calculation of lifetime treatment. it is a significant discount when looking at the life expectancy of a 39 yr old male (even with outrageously low interest rates thses days):
http://www.ssa.gov/planners/lifeexpectancy.html

monetarily speaking work restrictions have no $$ value in calculating california PD.

I'm surprised the carrier offered to stipulate to open medical; most fight like a cornered wolverine to get a C&R.
that they are not afraid to handle your claim for the next 20-30 years reduces your negotiating leverage.
you've obviously learned that using what the opponent doesn't want is the best leverage to get what you want.

california reforms in the last 20 years have continually eroded the bargaining power of the claimant in obtaining future comp benefits. what with the Utilization Review maze and changes to apportionment laws, negotiating leverage has been accruing towards the employer/carrier at a monumental rate.
I think your choice of a C&R reflects what you've already found out.

other considerations:
the carrier pays treatment at a steep discount that is not available to private payers.
you are correct to value the medical as the deal breaker not the apportionment--but
where did the two summary ratings come from?
while the judge did not issue an appealable order on the apportionment, their opinion should have greater weight then the DEU
you need a rating on the headaches if one wasn't included with the ortho report. you are bargaining with a phatom threat without it.
maybe you can trade a higher settlement range if you forgo asking them for a consult and rating on the headaches--just a negotiating thought.
you need a settlement range to help you evaluate offers and make counter offers:
a low to which you won't do a C&R and a high which you think will realistically handle your medical needs
I suspect the $50K figure is an "in-house" authority level point for the adjuster and not a reflection of your case value.
if so, there will be delays getting approval for a higher amount.

there are on-line rating calculators to help with PD calcs.
and there is a settlement calculator that may help with various medical calculations
http://www.settlementevaluator.com/

that's probably a lot to digest for now.

you had a very good post.
Reminder :
........Each state has their own comp system; POST YOUR STATE to get accurate information. Use the search feature to find information from similar questions.
THANKS FOR POSTING.
 
Reply
#3
(08-20-2015, 02:10 PM)1171 Wrote: wow.
you are on top of things and have a good business-like approach to your own injury which is very rare. your familiarity with the american legal process obviously shows.
one area you missed--is the present value/future value calculation of lifetime treatment. it is a significant discount when looking at the life expectancy of a 39 yr old male (even with outrageously low interest rates thses days):
http://www.ssa.gov/planners/lifeexpectancy.html

monetarily speaking work restrictions have no $$ value in calculating california PD.

I'm surprised the carrier offered to stipulate to open medical; most fight like a cornered wolverine to get a C&R.
that they are not afraid to handle your claim for the next 20-30 years reduces your negotiating leverage.
you've obviously learned that using what the opponent doesn't want is the best leverage to get what you want.

california reforms in the last 20 years have continually eroded the bargaining power of the claimant in obtaining future comp benefits. what with the Utilization Review maze and changes to apportionment laws, negotiating leverage has been accruing towards the employer/carrier at a monumental rate.
I think your choice of a C&R reflects what you've already found out.

other considerations:
the carrier pays treatment at a steep discount that is not available to private payers.
you are correct to value the medical as the deal breaker not the apportionment--but
where did the two summary ratings come from?
while the judge did not issue an appealable order on the apportionment, their opinion should have greater weight then the DEU
you need a rating on the headaches if one wasn't included with the ortho report. you are bargaining with a phatom threat without it.
maybe you can trade a higher settlement range if you forgo asking them for a consult and rating on the headaches--just a negotiating thought.
you need a settlement range to help you evaluate offers and make counter offers:
a low to which you won't do a C&R and a high which you think will realistically handle your medical needs

there are on-line rating calculators to help with PD calcs.
and there is a settlement calculator that may help with various medical calculations
http://www.settlementevaluator.com/

that's probably a lot to digest for now.

you had a very good post.

Thank you very much.
I went to the link you posted on life expectancy, and it shows my life expectancy is 46 more years for a 39 female. I just calculated my loss of earnings through retirement age. But Medical I cant know what costs will be needed except for the one thing the Dr. said I will need and that was the surgery. So I just left it at that. I mean I could have looked at the cost of lifetime care, including surgery but then the settlement amount asked for could have been as high as 300k with loss of earnings from full time work and surgery and misc medical. From what I hear that aint happening...so I would really rather not negotiate back and forth and come up with a number that the insurance company will think is a value for them and something they might possibly just accept, going by the 50k opening offer.  I have had no issues like so many people talk about. My case was accepted with no argument, everything has been timely, my adjusters have been helpful, I have received all the medical care I have asked for and its been authorized in a timely manner. They have not disputed anything really...but I just found it odd about the summary rating reports contradicted each other the next day!. Those came from State of CA Dept of Industrial Relations Division of Workers Comp. Disability Evaluation Unit. I just wish I knew how much they usually go up from their first offer? If that is the lowest amount....do they go up 10k, 25k more? 100k?  I know what the lowest I will take is...but I would like to get this settled asap.
 
Reply
#4
there is no loss of earnings payments in california outside of your PD rating.
although they will allow the PD rating to be corrected if it changes within 5 yrs of the injury date.
you should really look at all your medical needs that will be covered by your comp award and they will be buying out of.
there is no universal negotiating system or standard stepping process.

I edited my earlier post to include my opinion the the $50K was likely only the adusters authority level and not a realistic value of your claim case. a judge would not approve a C&R that was obvously too low for the claimants needs.
how soon did the doctor think your surgery was likely to happen?
although it's no guarentee for the future if the carrier has been freely providing all treatment and benefits
it maybe worth waiting.....
Reminder :
........Each state has their own comp system; POST YOUR STATE to get accurate information. Use the search feature to find information from similar questions.
THANKS FOR POSTING.
 
Reply
#5
So When negotiating my claim all I am asking for is a buyout on future medical and the amount they would have paid me for the permanent benefits which was a measly 7k?
 
Reply
#6
correct.
your are converting to a lumpsum cash out what they might have to pay if they kept the claim open (including the possibility of a surgery gone bad and maybe an increase in the PD.)
if the first DEU rating without apportionment stands up, it would be worth more then $30K.
Reminder :
........Each state has their own comp system; POST YOUR STATE to get accurate information. Use the search feature to find information from similar questions.
THANKS FOR POSTING.
 
Reply
#7
Has your work comp primary treating doctor written about your headaches and stated they are related to your injury? If this has not happened adding it to your claim is going to be difficult. I see a problem since you have been treating outside of work comp for your headaches as far as getting leverage for a settlement as 1171 has mentioned "bargaining with a phantom". After SB863 carriers are no longer liable for treatment obtained outside of the MPN. Also, has the doctor you are treating with private insurance opined it is caused by your work related injury? If you are using private insurance they may want to be reimbursed if this injury is deemed work related.  

Unfortunately, you cannot request a provision in your settlement for fusion, physical therapy etc  because the laws have changed and all requests are now subject to UR and IMR process. Previously this type of thing could be opined upon by a QME and written as part of the agreed settlement for future medical treatment, but those who had these awards are very upset as they are finding they are now subject to UR and IMR and being denied things they thought were part of their settlement. It sounds like you want to do a C&R anyway.

As 1171 mentioned what WC pays is lower than what you would pay for cash or what private insurance would pay. I would recommend looking at Medicare rates and you can find these on-line. This is not accurate but it is closer. However it may not be realistic as UR and IMR has lowered future medical costs to carriers. I think the possibility for a fusion is what I would use as well as your medication costs as your main negotiation tool. Again, you have been extremely lucky you have not had problems with denials of treatment and testing's. This may be attributed to your relationship with a good claims adjuster. Claims adjusters come and go and I know several injured workers who are dealing with State Fund and have EVERYTHING sent through UR and most requests are denied by UR and IMR. Loss if earnings is for civil cases and not work comp just like pain and suffering is also not part of work comp although you can be rated a small amount for pain in a PD rating.

Has your doctor stated what was the cause of your spondylolisthesis? As you stated you can have spondylolisthesis and not have any symptoms. The QME should have stated why it was apportioned such as arthritis. Fighting apportionment can be difficult. You can request your work comp PTP to do a rating or rebuttal report on what the QME rated you and then take both reports to court and the one the judge finds most substantial will stand. If you have other medical evidence to support why the rating was not accurate, you can submit it to the QME and request a supplemental. If you were represented by an attorney, he could depose the QME. I do not know if it is too late to do these things now as this has already been opined by a judge.

If your date of injury is after 1/1/2013 you would qualify for a voc rehab voucher of $6,000. for college and an additional voucher of $5,000. check that can be used for anything. If your date of injury is before 2013 the voucher is for college and the amount is depended upon your PD rating and is on the DWC website.

I would recommend to check with your private insurance will cover a work related injury after you settle with C&R.


Good luck to you.

Sorry my reply was being typed before a few other responses were made.
I am not an attorney.Anything I write should not be considered legal advice.I am writing from my own personal experiences,which is not from any sort of legal background. You should consult with an attorney over legal issues. In California, if you cannot get an attorney you can consult with an I&A officer.
 
Reply
#8
(08-20-2015, 01:16 PM)Midnight Wrote:
  • I worked part time and after 11 mos I had to tell my boss I could no longer physically do the work. I had no problems getting my claim accepted and everything has gone strangely easy unlike everyone's nightmare stories I have heard.
  • I received temp dis benefits of minimum (as I was only working part time) for about 1 year and then their Dr. said I was Perm & Stationary.
  • And that apportionment was 51% job related, 49% Previous condition. In the report the Dr mentions that I had symptoms of my condition prior to and sought medical treatment for the past 2 yrs prior to employment for occasional back pain. This is not correct, although I had an MRI done on my back 5 months before I began work, it was done as a precaution for a mild backache and since I had a history of kidney stones she said lets be on the safe side and check it out on a Dr's visit for another reason, I just brought up that my back hurt that day. I never heard back from Drs office about anything wrong with the test or any abnormalities in the MRI. Therefore I had no knowledge that I had spondylolisthesis as it often shows no symptoms, I don't feel I had any of the symptoms before that I have now. So because I had one MRI done, he apportioned it 49/51%, I guess. I didn't seek any medical care for my back until 5 months on the job, and 10 months after that MRI was done. I was not given my diagnosis until 1/2014! Regardless, I disagree that the condition was in any way disabling before work, otherwise how could I have done the job in the beginning? But I dont know if any of that even matters. Here is what is happening now...

I received a letter from CA State Fund, saying my Dr rated me at 20%, therefore with their adjustments they said I was 16% PD. and that was worth $8880. They agreed with the Dr's Report it says. Dr indicated future medical was necessary especially spinal fusion surgery. So they agreed to pay future medical and $160 for 55 weeks or I could take a C&R for 50,000 and no future medical

I wrote a letter back to them explaining that I was not likely to go with the C&R, and  they did not take my tension headaches into consideration in rating because I was not being treated for them by my orthopedic surgeon. And I thought the rating was calculated wrong, for occupation and other things. (My job was unique so I am not sure who picks out occupation code) (heard nothing back)

I then got a summary rating determination from workers comp board that said a Judge has ruled that my disability rating is 26% and that a judge has ruled that apportionment is not consistent with the law. And that maximum earnings awarded due to no wage statement? Therefore It was ordered that they pay me $290 a week for around 114 weeks and future medical. I was happy with this...until...

The next day I received another summary rating determination in the mail saying that a Judge ruled that in fact apportionment was within the law and that it was applied 50% and therefore my benefit payout was reduced to 13% and paid at amended amount of $160 wk, for 44 weeks. Which is $7,040.

Now I was prepared to fight the apportionment and maybe get a rating of 75/25 at worst as well as include the headaches attributed to my condition. But I have decided I would to get a C&R and negotiate a lump sum settlement.
I understand the implications this brings, but It is what is best for my family at this time. I am a 39 yr old  married mom of 4 kids, ranging from 8-17 and I will not likely be able to find many pt or ft  jobs with the restrictions that the orthopedic surgeon imposed. My company has no other jobs I can do. I am no longer an employee.
RESTRICTIONS: No bending, lifting, twisting. Weight lift restrictions 20lbs. No sitting or standing longer than 20 minutes without 5 minute opportunity to change positions.

I would like to ask for a settlement and I was eyeing a number of 190k. and a voucher for education benefits to get retraining. In the statement I am sending a list of the 3 surrounding counties and the costs of the surgery my doctor says I will need. " I think that provisions for future medical care should be made ....for physical therapy, medication etc ..and certainly to include surgical fusion."
The average cost of the surgery is 134k and I have listed each hospitals cost for the surgery that ranges from 99k to 240k. I also figured out the 26% diminished capacity of future earnings at around 55k for part time work and 147k for full time work. That is where I am getting the  190k. with no future medical

Does anyone have any knowledge of the difference between the first offer of 50k and what they will end up settling for? Even if they consider the apportionment what difference does it make when they have to pay out 130k plus for medical in the future or more...

I read that the restrictions set on you for future work is more important that the rating. The restrictions are not listed in the P&S report from Dr. but they are still in effect and haven't changed since my first appt. I also read that restrictions are reason for higher settlements. I am assuming that they will come up a bit from their first offer of 50k, but If I offer 190k will they come back with 60k? So I will have to go back and forth?  I obviously don't expect to get the full amount I am asking, but I thought the 50k was a high offer for an initial offer so they obviously have a reason for it being that high. My doctor even mentioned don't go with their first offer. :Smile But I think they will still be saving money in the long run by cashing this out.

Lastly, I do NOT want an attorney. Unless they were working for free...and maybe not even then. I have represented myself in family law court for 10 years after being BURNED by several attys, I also have assisted in the paperwork of a 3 year long divorce battle, and I have successfully defended myself in traffic and small claims court. I am familiar with the legal system, and have studied up A TON on this new field of workers comp law. I want nothing to do with an atty even if it means getting a bigger settlement. I am 100% anti attorney. I have been much more successful on my own then with whatever an atty has done for me. BUT in saying all that I realize that I still lack the inside experience that you can get from the entire process of this and I don't know what really goes on behind the scenes and in this process as opposed to what you read and how it supposed to be done, so that is why I am asking for any advice in this forum before I send in this statement to my adjuster.

If anything sticks out to anyone on any topic...please comment. Any little snippets of advice are appreciated.

I'm exactly where you were. Would love to find out what the outcome of your settlement was. Please advise. I need help. Thanks so much.
 
Reply
#9
What issue do you need help with? PD? future MED?
Are you locked in on a C&R or will you consider stipulated award?
Reminder :
........Each state has their own comp system; POST YOUR STATE to get accurate information. Use the search feature to find information from similar questions.
THANKS FOR POSTING.
 
Reply
  


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