There is no average workers’ compensation settlement for a back injury in New York, as there are no average back injuries. Each case is different, and settlements might range widely. Of course, you should not look at a possible settlement like a winning lottery ticket, as you need these funds to support yourself following a disabling injury. You do want to make sure you receive the full amount you need. The amount you receive depends on the facts and circumstances of your case, particularly the extent of your injury and the actual damages you suffered. Our Bronx workers' compensation lawyers discuss the factors below, to learn more about the specifics of your case call today.
Workers’ Compensation versus Personal Medical Insurance
When you suffer injuries in a work-related accident, your medical coverage will come from workers’ compensation rather than your health insurance coverage. Workers’ compensation aims to cover all such expenses and a portion of your lost wages without the need for you to file a suit.
Steps to Take After a Work-Related Injury
If you suffer injuries at work, there are some steps you should take right away. First, you should notify your employer immediately of your injury and obtain medical care from the professionals your employer directs you toward. The employer will then investigate the accident. If you can, you should also do so, taking photos and getting contact information for all potential witnesses. The employer will then file the initial workers’ compensation claim with the insurance company.
Although you are not required to retain an attorney, you may wish to consider doing so. Your employer has to take the initial steps, but you must participate in the claim. You will also have to work with the claims process and may need to work with the appeals process. An experienced workers’ comp attorney can help you through this process.
You may have to participate in a workers’ comp medical exam. Your personal physician's word may not convince the workers’ comp insurance company.
Factors in Calculating Settlements
In determining your settlement, the insurance company or labor board will look at various issues before deciding what kinds of payments you will receive. It will look at such issues as:
Payments You Receive
Your average salary or wage before the injury and the workers’ comp payments you receive based on that wage will be the most important factor in determining your settlement. For this reason, the calculation of that weekly amount is vital to handling your case. A workers’ comp attorney can review your case and make sure that this calculation is accurate given your circumstances.
Type and extent of the Injury
Obviously, the next important factor is that the more serious your injury is, the higher your settlement is likely to be. However, another critical factor is the extent to which your injury interferes with your ability to return to your work. If the injury prevents returning to your previous job or profession, the case can have a higher value.
Degree of Disability
Your employer’s workers’ compensation insurance company will look at the extent, if any, of permanent disability that you may suffer. The workers’ comp insurer will pay short-term disability until the final extent of your disability is determined. Once that happens, you will continue to receive long-term disability payments from workers’ compensation.
These payments, by the way, are separate from any benefits you may receive from Social Security Disability Insurance. It is, under some facts and circumstances, possible to receive both workers’ comp disability and SSDI if you qualify for Social Security and expect to be disabled for at least a year.
Whether You Can Return to Your Former Career
If you cannot return to your former profession or job, your settlement value may increase. Physical injuries and neurological injuries, which can result in the loss of cognitive function necessary for your job, can keep you away from your previous profession. The less likely you can work at your previous occupation, the larger your likely settlement. Your ability to work can also impact the possibility that you may recover under Social Security Disability.
The Status of Your Case
Any challenge to your benefits can affect the value of your case. If someone has filed a petition to reduce or cut off your benefits, then the value of the case for settlement purposes will decrease. Your employer and its insurance company may dispute the payment of your lost wages, medical care, or any other workers’ comp benefits. While this challenge is going on, you may experience a temporary termination of benefits.
Types of Injuries
The most common work-related back injuries include:
- Strains—overused or overstretched muscles
- Sprains—torn ligaments from sudden movement
- Herniated disc—loss of the cushioning effect of the disks between the vertebrae
The typical causes of these injuries are:
- Slips and falls
- Being hit or caught in moving machinery
- Vehicle accident
- Explosions and fires
- Repetitive and overexertion injuries
Types of Benefits
In a workers’ comp claim, you will generally receive your medical costs and certain unpaid wages. You may also receive rehabilitation expenses.
If your attorney can locate others who may be liable for your injuries, then other damages may be available. Future medical costs that workers’ comp does not cover, pain and suffering, loss of consortium, loss of enjoyment of life, and other similar damages may be possible from these third-party defendants. You also might recover any wages you did not receive from workers’ comp.
Who Can I Hold Liable?
Historically, workers’ compensation established a deal between employers and workers that, in exchange for the right to sue, employees guarantee paid time off and medical care after a work-related injury. Liability rarely plays a role in workers’ comp claims.
However, sometimes your employer is not the only potentially liable party in your accident or injury. If, for example, your injuries were the result of faulty equipment or hazardous conditions for which someone other than your employer may be liable.
Alternatives to Workers’ Compensation
The alternative to a workers comp claim is to sue a third party who may have contributed to your injury. The first thing to know is that a third-party claim is in addition to your workers’ comp claim, not instead of it. Of course, if your employer did not provide workers’ compensation coverage, then the employer may face a lawsuit.
Third-party claims can arise, for example, when a car strikes an employee during work and the driver has no affiliation with the employer. Similarly, when poorly made or maintained equipment injures you, you may have a claim against the manufacturer of the machinery or the company that maintained it. On occasion, a work-related injury will occur on property that does not belong to the employer. If the condition of the property contributed to the injury, then the property owner may be liable for damages as well.
Third-party claims offer an advantage to the employee, as they are not subject to the limitations on recovery found in workers’ compensation statutes and coverage.
These damages can include:
- Future lost wages
- Loss of earning capacity
- Cognitive loss
- Loss of executive function
- Pain and suffering
- The emotional impact of any resulting disability
- Loss of companionship or affection
- Loss of enjoyment of life
- Loss of sexual function
- Worsening of prior injures
Economic damages, that is, the kinds of out-of-pocket costs that your lawyer can more easily demonstrate through paid bills and invoices, which are over and above those that workers’ comp covers, may be recoverable in a third-party suit. Further, noneconomic damages, far more subjective than economic damages, are also recoverable in a third-party suit even though not available through workers’ comp. A skilled and experienced workers’ comp attorney can help you to discover any potentially liable third parties.
Effects of Settlements
The most important effect of a workers’ comp settlement is that it ends your case. If your injuries worsen later or you experience complications, you will not recover additional damages. The potential for these kinds of post-settlement problems is another excellent reason for obtaining your own workers’ comp attorney.
How Long Will a Settlement Take?
Settling a workers’ comp case is not something that happens quickly, and you should expect your case to take some time before it is final. The initial process to approve payments will move fairly quickly, but negotiations to reach a final settlement can take 12 to 18 months.
What Is a Section 32 Settlement?
A Section 32 settlement is an agreement that results in a final payment to an injured worker. It is not and cannot be court-ordered but rather must be a voluntary agreement entered into between the worker and the insurance company or third-party payments administrator.
The Section 32 agreement will cover your workers’ comp case’s lost wages and medical payments portion. The amount of the Section 32 settlement is determined by what the insurance company or administrator thinks it is likely to pay in the future for these purposes. However, in some cases, Reduced Earnings payments, Permanent Partial Disability payments, or a combination of those two may determine the settlement.
A Permanent Partial Disability (PPD) is permanent physical impairment or reduced earnings, either of which arose out of the work-related injury. The PPD will have a permanent negative effect on the worker’s ability to perform work-related tasks and earn a living.
How Does the Section 32 Process Work?
Section 32 settlement discussions usually happen about the time you reach your Maximum Medical Improvement or permanent disability proceedings begin. MMI happens when a worker recovers as much as he or she is likely to, with no further improvements expected. Permanency proceedings are the legal process that will determine the level of permanent injury and disability you have incurred and the effect that will have on your earning capacity. The judge will ultimately decide on the percentage of Loss of Wage Earning Capacity (LWEC).
Once the Section 32 settlement parties agree to specific terms, they must memorialize those terms in a written agreement. The New York State Workers’ Compensation Board requires that a worker (through their attorney) prepare a disclosure form, along with an attorneys’ fee request. Once the Board receives a filing with the agreement, the disclosure form, and the attorneys’ fee request, it will schedule a hearing.
A judge will review the proposed settlement at the hearing to determine whether it is fair and reasonable. If all parties sign the agreement, the court will provisionally approve it. When it grants a provisional approval, the parties have ten days to rescind the agreement. After ten days, the Board will formally approve the settlement. Once the Board grants its approval, the insurance company or the administrator has ten days to make the agreed-upon payments.
Effects of the Section 32 Waiver Agreement
Once you settle your case under Section 32, you will no longer have any rights to ongoing and future benefits. Instead, you will receive the lump sum set in the agreement or an annuity. Once the Board approves the settlement, it is closed, and you may not reopen it.
How a NY Workers’ Compensation Attorney Can Help You
A knowledgeable workers’ comp attorney can help you with your ongoing workers' comp claim, your Section 32 settlement, and any potential third-party liability claims.
An experienced attorney will understand the various factors, including lost wages and potential medical expenses, included in your Section 32 negotiations. An attorney can navigate the legal terms of the proposed settlement to ensure that you understand what you are agreeing to and signing. If there are potential third-party defendants, a skilled workers’ comp attorney will also understand how to investigate those potential claims and how to negotiate or litigate those cases.
If you or a loved one suffered a New York work-related injury, contact a Bronx personal injury lawyer for an initial consultation and no-cost case evaluation. Let an experienced workers’ comp lawyer resolve your case and obtain the compensation you deserve.