Are you considering settling your North Carolina workers’ compensation case? Has an adjuster or an attorney representing the workers’ compensation insurance company asked you to settle or “clincher” your workers’ comp claim? If you are thinking about settling your NC workers’ comp case then there are a few very important things to consider. Unfortunately there is no workers’ compensation settlement calculator. Each case must be carefully evaluated based on a number of factors.
A workers’ comp settlement in North Carolina is often referred to as a workers’ compensation clincher agreement. A settlement or clincher resolves all of the issues in your North Carolina workers’ comp case. This includes all past, present and future wage replacement or disability benefits, as well as all medical treatment. After your workers’ comp case is settled the employer or its workers’ comp insurance company will pay no further benefits.
Not every workers’ compensation case in North Carolina should settle. In fact some cases should never settle. A badly injured worker who will never work again and will likely require ongoing medical treatment will often do better by letting the workers’ compensation insurance company pay ongoing disability and medical benefits. This may be especially true if the worker is not eligible for social security disability or has no way to get medical treatment other than workers’ comp. While it may be tempting to clincher your workers’ comp case, it might be a mistake in the long run.
The decision on whether to settle or not should include a careful evaluation of the benefits you are giving up. For this reason in most cases it is better to wait until you have received most or all of the required medical treatment, and reached the end of your healing period, which is called Maximum Medical Improvement (MMI), before looking at settling your NC workers’ comp case. Before your treatment is complete it is difficult to determine the cost of future medical needs, including doctor’s appointments, medicine, physical therapy and surgeries. You do not want to settle your case and then realize you need surgery and have no way to pay for it. So it is usually better to complete most treatment and the healing period before settling your workers’ comp case, especially in accepted cases, and where there are not other health coverage options.
In addition to medical benefits you should also consider the value of the disability, or wage replacement benefits you are giving up by settling. This should include any remaining Temporary Total Disability (TTD), Temporary Partial Disability (TPD), Permanent Partial Disability (PPD) and Permanent Total Disability (PTD). This requires an accurate calculation of the Average Weekly Wage.
An injured worker who is considering settling their NC workers’ comp case should also think about the effect on other benefits that may be available. This includes Medicare, Medicaid, private health insurance, Social Security disability, and private long term or short term disability policies.
A workers’ compensation settlement must take into account any interest Medicare may have in payment of future medical expenses related to the workers’ comp injury or condition. Medicare disapproves of an injured worker settling his or her workers’ comp case and then asking Medicare to pay for treatment related to the injury. In some cases it is best to carve out part of the settlement and place it into a special Medicare Set Aside arrangement. In other cases this is not necessary.
Social Security disability payments may be greatly affected by a workers’ compensation settlement. However the proper use of a Social Security disability offset may limit or even eliminate this problem. There are several methods for calculating Social Security disability offsets and the injured worker is allowed to pick the one that helps them the most. But you get one chance at it. Social Security will not recognize an amended agreement intended to correct a botched calculation.
As you can see many times the bad effects of a settlement on other benefits can be reduced or even eliminated through careful planning. But settling a workers’ compensation case in North Carolina without considering how it may affect other benefits is a serious mistake.
Finally, do not confuse the payment of a workers’ compensation disability rating with a settlement. Payment of a percentage rating does not automatically end your right to medical treatment. But it may start the clock ticking on the end of both wage replacement and medical benefits. Often it is not a good idea for an injured worker to accept the payment of a disability rating in a North Carolina workers’ comp case.
Whether to settle your workers’ comp case in North Carolina workers’ comp case is one of the most complicated question your will face in your case. If you are considering settling you should consult a Board Certified Expert in North Carolina Workers’ Compensation Law. Please call or email for your free consultation with NC workers’ comp lawyer Kevin Bunn. Kevin practices workers’ compensation law in the Raleigh area.
According to an article on WRAL, When East Millbrook school officials started sensing tension among their students they brought in Professor Jon Powell and the Campbell Law School Juvenile Justice Project which he leads. The Campbell Law School Juvenile Justice Project is a group of Campbell law students who work with Wake County school children to help them resolve conflicts. The Project partners with several Wake County middle and high schools and is funded through the Campbell University Norman Adrian Wiggins School of Law.
An anonymous eighth grader at East Millbrook complained that students just “didn’t get along.” “It was like he-she said stuff.” The law school mediators focused on the harm that had been done and how that harm could be addressed in a positive way. Mediators first talk to the students separately, then together, to help keep a conflict from escalating into a fight. Professor Powell and the law students’ goal is to get both sides to understand the root of the problems so it doesn’t build up again. “We just worked it out that day” said the eighth grade student.
The Campbell Law School Juvenile Justice Project has dealt with about 80 cases in the last school year. In the last ten years 95% of the students who completed the mediation didn’t offend again. A vice principal at East Millbrook said that the students behavior after the program was “calmer, not necessarily best friends but at peace.”
One of the major changes in the practice of law over the past twenty years has been the increased use of mediation to resolve conflicts. Practically every NC automobile accident, personal injury or workers’ compensation case that is filed is ordered to mediation. There are many NC personal injury lawyers who now limit their practice to working as a mediator. And most NC automobile accident lawyers spend more time in mediation that in trial.
So it’s probably a good idea to start training lawyers in law school to mediate conflict. And I guess if they can mediate a middle school spat they can mediate anything.
Increasingly, parties to a lawsuit or claim are demanding confidentiality clauses in NC personal injury and workers’ comp cases, as well as breach of contract, discrimination claims and even divorce actions. Many employers now require a separate “resignation and release” as a condition of settling a NC workers’ compensation claim, and these agreements often include a confidentiality clause. The reason is pretty straightforward — employers and businesses are reluctant for their employees and competitors to know what they have paid on a claim. My own view is that in the vast majority of cases nobody except the parties much cares what is paid, and its better to not have any remaining post-settlement obligations between the parties. But defendants frequently feel differently.
Recently, the breach of a confidentiality provision cost an age discrimination claimant his $80,000 settlement. Patrick Snay, the former Head of School at Gulliver Preparatory Academy Miami, Florida, filed an age discrimination claim against his employer after his 2010-11 contract was not renewed. The case settled for the payment of $10,000 in back pay plus $80,000. Unfortunately, Snay apparently told his teenage daughter about the deal and she could not resist posting the result on Facebook, advising her 1200 Facebook followers that “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” Needless to say, word of the the post got back to Gulliver officials, who promptly advised Snay that he had broken the confidentiality agreement and would not be receiving his settlement. The Third District Court of Appeal for the State of Florida sided with the school, holding that Snay’s disclosure of the settlement to his daughter violated the confidentiality clause.
Of even greater concern is the potential tax liability associated with including confidentiality clauses in NC personal injury and workers’ compensation cases. 26 U.S.C.A. section 104(a)(2) provides that “gross income does not include the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sum or as periodic payments) on account of personal physical injuries or physical sickness.” So in general, workers’ compensation and personal injury proceeds are not taxed. However in 2003 the IRS ruled that money paid to secure a confidentiality clause is not compensation for personal injuries or physical sickness and so is taxable. Amos v. Commissioner, 2003 Tax Ct. Memo, LEXIS 330 (2003). (We have Dennis Rodman to thank for that. Look it up if you don’t believe me.) So if you have to sign a confidentiality agreement in your NC personal injury or NC workers’ compensation case consider assigning a specific amount of the settlement to that provision, and plan on paying taxes on that amount.
Finally, here are a few tips if you are considering entering into a confidentiality clause along with your personal injury or workers comp case:
- Raise the issue of any confidentiality agreement during settlement discussions.
- Be sure you are allowed to discuss the settlement as required to receive tax and legal advice, meet any obligations to business partners or insurers, or and to comply with any future court orders.
- Know exactly what is confidential. Does the non-disclosure apply to the terms of the settlement, the nature of the dispute itself, information exchanged between the parties?
- Understand the consequences of any breach of the confidentiality agreement. Most confidentiality agreements contain a “liquidated damages” clause, setting specific amount of money as the damages for breach of the clause.
Please call or email if you would like to discuss confidentiality clauses in NC personal injury and workers’ comp cases in North Carolina.
The Wilmington City Council recently voted to reduce Workers’ Comp Benefits in Wilmington NC for firefighters and police officers who are injured in the line of duty. Previously, injured safety workers could draw up to 100% of their pre-injury wages through the city’s workers’ comp program. The change reduced the compensation to the minimum required by the North Carolina Workers’ Compensation Act.
These 100% reimbursement plans are generally referred to as salary continuation. Many state law enforcement officers continue to be eligible for salary continuation through the State of North Carolina’s workers’ compensation plan. Teachers may also be eligible if they are injured in an episode of violence.
I hate to say it, but here they go again.
Currently, if an injured NC worker needs medical treatment that has been prescribed by the employee’s workers’ comp doctor, but the workers’ compensation insurance company refuses to approve the treatment, the injured worker can file a simple motion with the North Carolina Industrial Commission for an expedited or emergency hearing on the issue. (The NC Industrial Commission administers the NC Workers’ Compensation Act.) An Industrial Commission hearing officer conducts a telephonic hearing, listens to both sides, considers the evidence including any medical records the parties present, and makes a decision, usually within a few weeks of when the request was first made. Its a simple, fair process that generally works well for everybody. Senate Bill 174 would change that.
Senate Bill 174 would require that all requests for denied medical treatment in NC workers’ compensation cases be decided only after a full hearing before the Industrial Commission, which would include life testimony and medical depositions of the relevant doctors. The effect would be to delay the needed treatment months or even years. There is no reason to further delay NC workers’ compensation medical treatment. And keep in mind that in most NC workers’ compensation cases the insurance company chose the employee’s doctor in the first place. The bill would also place a greater burden on doctors who take workers’ comp cases, who would have to spend more time in depositions.
The vast majority of injured workers in North Carolina simply want to get the medical treatment they need to get better and return to work. This bill would complicate and delay the process and make it harder for workers to do that.
Go here for an interesting article on the kind of damage Senate Bill 174 could do to injured workers in North Carolina.
If you have questions about your workers’ comp case in North Carolina please feel free to contact me for your free evaluation of by a North Carolina workers’ compensation attorney.