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Should I settle in Maryland?

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  • Should I settle in Maryland?

    I was injured in 1990 in a fall. MD workers comp was filed and took care of most of the med payments, TT and so on. I had 5 lower back surgeries 2 of them due to a botched fusion at L4-L5. Finally I was fused at L4-L5, L5-S1 and was fairly free of pain. Within a couple of years pain returned and was found to have a slight herniation at L2-L3. Pain generally increased and this disc got worse then it was found to be going at L3-L4 also. It got to the point where I was on oral meds up to 800mg of Oxycontin a day. Then an implanted intrathecal pump took over to get rid of the orals. This has been OK but pain is on the increase and increased dosage isn't controlling the back pain or leg pain. I have tried to work and twice have had to quit as it becomes unbearable and nobody wants to hear that you have to go lay down. I am so sick of dealing with workers comp, doctors and lawyers I sometimes don't even want to go on. I was recently given my "last" IME and was found to be less disabled than I was 10 years ago. I had 2 offers to settle last year for 50K each and turned them both down. So today I received another 50K offer. Is this the magical number or what? My treating physician put me off of work permantly last Sept. but it doesn't seem to matter. A FCE 2 years ago had me lifting 20lbs. occasionally and frankly 2 years maybe I could have but things have been gradually been getting worse. I have 2 young kids (4 and 6) who keep me going and probably keep me from doing anything stupid. I am so sick of fighting this but 50K will barely cover med expenses for the next 3 years. I know of no one else I can talk to about this as it seems one has to experience all of this to realize the full extent of what is happening. My lawyer is always in a hurry when I talk to him and changing legal council at this point will only cause more delays, he has been there for me for the last 15 years. He tells me don't expect a real big settlement as workers comp cases aren't like auto accident cases. Is this the way workers comp cases in MD. settle? I just don't know what to do any more.

  • #2
    I can't tell you to settle or not. You really need to take the advice of your lawyer here. He has all the records and knows the case. I will say that 50K is on the high side for a WC settlement. It really isn't like civil cases. For a back case the results in surgery, it isn't unheard of. Still a tad on the high side, but not outrageous for a settlement. I assume this is a full and final settlement and not a stipulation since you are quote $ figures and not %. If you tell me the rating(s) you were given, I can give you a better idea. I can guess from the 20 lb limit, but it is better if I know what you were rated.

    Are the new problems with the disks a result of the injury? So much later I'd be surprised if they were found to be related.

    Have you discussed voc rehab? You might want to bring that up to your lawyer. Have you already gotten PPD?

    You don't have to ever settle a claim. You can keep it open indefinitely. Settling is one way of ending it though, so you don't have to keep dealing with it. You can see whatever doctor you want. Treatment is your own choice. You do lose the ability to get future time off paid and to come back for treatment or voc rehab.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    • #3
      Re: Should I settlein MD?

      When I read my 1st post it seems like I left so much out, and some of it will answer your questions. !0 years or so ago I went for a hearing and was found to be 60% and was given a grant to cover loss of future earnings. It was paid out over time but all in all it amounted to around 128k before doctors and lawyers fees. I owed everyone and their brother at this point for helping me through bad times so another chunk disappeared. Anyhow as time went on and I started feeling worse I returned first to pain relief doctors and got everything from a TENS unit to aqua therapy. Everything seemed to help a little but over time the TENS was burning my skin, aqua therapy couldn't be continued because of the cost etc.,etc. This is when I returned to a real doctor, which happened to be a neurosurgeon. He told me at this point another fusion had a chance, maybe 70%, of helping me. The ins. co. refused to consider and quite frankly I wasn't crazy about it either. I was determined to be at MMI at this point.
      This is when I went for the FCE. I was then signed up for voc rehab and spent the next 3 months looking for jobs which for the most part were out of my capacities. This didn't matter though as long as I documented that I went after 15 jobs a week. My so called counselor was driving me nuts and this turned out to be a very stressful situation so I opted not to continue after the initial 3 months figuring I could look for a job on my own. This was Jan,05 and I am still looking for a job. I get weekly updates from Career Builder and Monster but it seems as if the jobs are either to physical or I don't have enough experience to get hired. I was also told to lie during an interview if I was asked if I thought I could handle a position physically. Whats the sense in doing that? So I can get fired later, or worse hurt myself more.
      After all of this is when I started getting the first offers for settlement. When I was first determined to be 60% I believe their dr. said 30% and my dr. said 90% and that is where the 60% came from. Their dr. now is saying 14%. This was the IME I just went for a few months ago. He seemed so sympathetic to my problems but when his report came down it read as though there was barely nothing wrong with me. A Discogram of L2-L3 showed it was pretty well blown as it wouldn't hold any pressure but his report had it slightly herniated. This is the disc causing the problems in the front part of my thighs so I am told, and it doesn't feel minimal. I haven't heard anything to the contrary about these discs(L2 through L4) not being related to the others so I'm assuming they are. I was told that these had more strain on them as the lower were fused.
      As far as I know this would be full and final but 50k before the lawyers cut doesn't seem like much for all that I've had to deal with and who knows what the future is bringing. I really am sick of it all and wish it would go away.
      Last edited by riverat2002; 09-26-2006, 02:55 AM.

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      • #4
        OK, now your situation makes more sense and I can see why settlement is being considered. Your ratings are definitely on the high side. If you are at all functional, a 90% rating was not going to happen. I can probably guess which doctor rated you, but that is neither here nor there.

        Honestly, at this point, I see nothing more that can be done but settle. Keep in mind the following is just my opinion and you should really discuss this with your lawyer before acting, as they have the full history. If you think you are going to go for the surgery soon, I'd wait on settling. Get the surgery and related treatment covered, maybe try for voc again post surgery. Then talk settlement. If you know that you are not going to do the surgery, or it won't be until way down the road, settling now isn't a bad option. It is unusual for claims to sit open for so long. My oldest open claim is from 96. Once you start hitting the 10 year mark, particularly if there isn't active treatment throughout, you can start running into issues with subsequent injuries, degenerative changes and the like which muddy the waters. As your doctor probably told you, once you have a fusion, the risk of herniation of the disks above and below increases. The descrepencies arise when there are both degenerative changes and changes as a result of the fusion. Only the portion attributed to the fusion is counted toward WC and your rating. That *may* be accounting for the different rating this time around. I'll go on a limb and assume that the rating is apportioned and the 14% is the portion that is being attributed to the accident/worsening of condition.

        To be honest, with a 20 lb lifting restriction, 14% is a lot closer to where these usually wind up than 60%. PPD for a 14% claim would be max $7980, so the 50K offer is more than fair. Even bumping it to second tier puts you between a max of $18, 525, and $60,515. You would need a rating of approximately 40% to hit the 50K mark for PPD. Your last award was third tier, which is why it was so much more. With a 14% rating this time around, I'd say your chances of getting above second tier are between slim and none.

        I think you shot yourself in the foot with voc however. If you were applying for jobs you were not qualified for, trust me, that would be noted in the reports. If you were the one who opted to cease/not renew after 3 months, your chances of being awarded it against are low. If you go for further treatment and apply again after that, your chances increase somewhat. I'm not sure why you applied for jobs you weren't qualified for and why you didn't request a different counselor if you were not getting along with the one you were first assigned. In any case, that ship has sailed.

        Please though, do speak with your attorney before taking any of my advice. If it has been going on for this long, he has much more information than I have.
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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        • #5
          Re:Should I settle

          First let me say thanks for your time as I know of no one else I can talk about this with and I value others opinions as it usually gives a different and sometimes better point of view.
          My rating last time at 60% was the determination of the WC hearing. The actual from the IME was 30% I believe. My doctor gave a 90% so I got the average. Maybe that is why it seems so low. But even if it goes the same way and my Dr. gives 90% again it could hit 52%. The way things are going it seems like it would be a gamble. If I was to take the 50k it would cover my pump maintenance for 3 years or so unless I get another source to pick up the tab. This is what worries me as I believe I have enough skills to start up my own business doing something I like and be able to slack off on my bad days without any problems. Just a thought as medical ins isn't cheap and if I am working I wouldn't be eligible for medicaid or whatever it is called.
          The reason I was applying for jobs beyond my physical capacities was because I had to show that I looked for so many jobs each week and there just aren't that many jobs that I would qualify for with my experiences that are light duty. I wish I had known I could ask for a different counselor as this one must have had the most points for returning people to work. She definitely wasn't worried about how she treats people.
          Again let me thank you for your input as even though I have been going through this for quite some time I really have no clue to how things work at this stage of the game. I certainly want to do what is best as sometimes it seems as though I am fighting this battle alone. I just hope my frustrations don't make me make the wrong decisions.

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          • #6
            One thing I should clarify, that I shouldn't have assumed you knew. If you have a previous award, you aren't entitled to be paid for it twice under worsening of condition. There is a week for week offset on any award. If you are actually found to be in better condition than you were at the time of your last award, you wouldn't get anything under worsening. You could still get medical treatment but you wouldn't get additional PPD. If you are less disabled as a result of the injury, you aren't going to collect more money. In order to be paid additional PPD, you would need to be found to be more than 60% disabled this time around.

            Settlements must be passed by the commission and the way the commission decides if it is "fair" is by taking the dollar value of your ratings and calculating what your PPD would be if not for the settlement. This is to protect injured workers from accepting low settlements and closing off their right to future medicals out of ignorance, bad legal advice or lack of qualified medical opinion. In evaluating whether the 50K is fair, the Commission will look at the value of the claim based on the ratings presented. If you have one doctor who rates you at 14%, it is very unlikely that the other doctor would find you at 90%. Nothing is impossible and I did have one case that had a 0 and a 100 (basically agreed she was disabled but not as a result of the injury at work do to unrelated medical conditions) but that is extremely rare. If your doctor was who I think it is, yeah, 90% is possible, but a split is unlikely when one rating is first tier and the other third, and even if they did split, you are still at 52% and that is less than 60%. Even a perm total (100%), split with a 14%, puts you under the 60% bar.

            Even if the rating is 90%, and for some reason the WC carrier agreed (ain't gonna happen, but let's just say it does), since you already got 400 weeks for the 60%, you would only be eligible for the difference between that and the 500 weeks maximum under "other cases". In other words, you would only get 100 weeks of benefits, and the max per week is $601. Actually, since your accident was 16 years ago, your maximum would be lower but I don't have the figures going back that far readily available. The furthest back I have is 2001 and then the max you would receive would have been roughly 50K. With a maximum exposure on the claim under 50K (meaning there is no way the carrier would have to pay more in PPD than that), the settlement would be approved by the Commission.

            What all this means to you is, financially, settling would put you ahead of trying for worsening of condition. The only way settling would work against you is if you were going to go for surgery or have extensive medical maintenance costs. Once you settle with WC, your regular insurance would pick up the cost of continued care, subject of course to the terms of the plan. While you certainly can counter offer on a settlement, that is something you really need your attorney to handle. Whether it makes sense to do so, is also something your attorney can advise on.
            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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