Month: April 2019

When Can I Get My Scar Money?

Question

When Can I Get My Scar Money?

Answer

The point in time at which you are likely to receive this benefit is when a doctor has given an opinion that your disfigurement is at “end result,” meaning that further medical care is unlikely to enhance the appearance of it.

When Scar Money Arrives

The Rhode Island Workers’ Compensation Act does provide for a separate benefit, i.e. a separate check and amount of money if you have disfigurement from the injury, whether that is a scar, a burn or some other deformity. Once you are at that point in time, your lawyer and the insurer will meet with you to view the deformity or disfigurement and try to agree on a number or a dollar amount that is fair.

How Much Scar Money is Worth

The value of your scarring or disfigurement is highly subjective. However, a lawyer who has done this many times will have a very good idea as to whether you are better off taking the offer that is on the table for the scarring or proceeding to workers’ compensation court and having a judge determine the amount of your scarring benefit. This usually occurs about six months after the date of the injury, but it could happen earlier or later.

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What Is The “Going and Coming” Defense To Workers’ Compensation?

Question

What Is The “Going and Coming” Defense To Workers’ Compensation?

Answer

The going and coming rule is a rule that Rhode Island recognizes as a bar or a prohibition against receiving compensation.

The Rule

Generally, the rule states that injuries sustained while going to or coming from the workplace are not compensable under the Rhode Island Workers’ Compensation Act and do not entitle the employee to any benefits. In reality, however, case law overtime has expanded the number of exceptions to that rule- so much so that it’s commonly considered that the exceptions have swallowed the rule.

You're Neither Entitled or Barred

So, that’s not to say that if you have a case where you get hurt going to or coming from the workplace that you will be entitled to benefits. The employers and insurers will aggressively pursue a going and coming defense the moment they smell one. This requires that your lawyer be very well-versed in handling that area of the law because the case could be hotly contested. At the end of the day, the mere fact that you were going to or coming from work when you got injured does not necessarily mean that you’ll be barred from compensation.

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Is There A Danger Of Getting Less Than What An Insurance Company Initially Offered At Trial?

Question

Is it possible to get less when my workers’ comp case goes to trial?

Answer

If you go to trial, it’s always possible to lose and therefore end up with less than what you were offered.

The Compromise

The offer is a compromise on both sides, because the insurance company could wind up not owing you anything. On the other hand, you may prevail and they may owe you a lot more than what they initially offered.

Difficult Cases

These types of cases and situations require a great deal of judgment and experience on the part of your workers’ compensation lawyer. They also require a lot of thought from the employee, because everyone’s situation is different; what might be best for one person may not be the best for another person.

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What Can I Expect If My Claim Goes To A Hearing Or Trial?

Question

What happens when my claim goes to trial or a hearing?

Answer

Anytime you file a petition in the workers’ compensation court in Rhode Island, the matter comes on for a pretrial hearing.

During the Pretrial Hearing

If there is a dispute about whether or not you’re entitled to benefits under the Rhode Island Workers’ Compensation Act, your lawyer may file what’s called an original petition, which essentially determines whether or not you should be on workers’ compensation at all. Once filed, that petition will trigger a “pretrial hearing,” which is a court date that you and your lawyer attend.

During that hearing, a judge will informally listen to arguments from both sides, review evidence available at the time, and make a preliminary determination without the benefit of a full hearing. In some cases, a judge might determine at the pretrial heraing that additional evidence or a full trial is necessary.

Why Pretrial is Important

In reality, the pretrial conference on your original petition is the most important day in the life of your workers’ compensation case in Rhode Island. The reason for that is if your original petition is granted at this first pretrial hearing court date, then you’ll immediately begin to receive everything you’re entitled to under the workers’ compensation act. For all intents and purposes, you would be in the driver’s seat in terms of your legal case.

If your case is denied at the pretrial level, then you will have to take a “claim for trial” (an appeal) and you would not receive benefits during that process. You will then be proceeding through a long and winding road known as claiming a trial, which can be very difficult, and take a very long time, all during which you’re not receiving income replacement.

Why Petitions Aren't Granted

There are many reasons why a petition may not be granted at the pretrial level. While lawyers try to avoid proceeding further than the pre-trial hearing, doing so can be necessary. There are also some cases in which the lawyer and the employee realistically know that the case has serious legal problems. In those cases, the lawyer should make his or her client very aware of the fact that a denial at the pretrial level is likely.

They should already be prepared for how they’re going to attack the case after that point, whether it’s to target some sort of settlement through a denial and dismissal, or to proceed through a full trial. If doing the latter, a strategy has to be determined and the cost to the employee of prosecuting the case in the absence of receiving any benefits must be considered.

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If There Is No Settlement, Will A Workers’ Compensation Claim Go To Trial Or A Hearing?

Question

My case didn’t settle- will my claim go to a trial or hearing?

Answer

If there is no settlement, a workers’ compensation claim will not necessarily go to trial.

Settlement Can Happen at Anytime

Oftentimes the idea of settlement will come up in the life of your case during the time when nothing is actually pending in court. It may just be that you’ve been collecting weekly benefits for some time and the carrier or someone else reaches out and asks whether there’s any interest in ending the case with the lump sum settlement.

When Settlement Pops Up

In many cases, however, the prospect of settlement rears its head during a contested hearing or a trial. That may be a trial regarding whether or not you’re even entitled to continuing benefits under the workers’ compensation act. Alternatively, an ancillary dispute may come up regarding payment of a particular medical bill or authorization for a particular type of treatment, which may be the impetus for the parties or the judge to suggest that settlement be explored.

How Settlements Work

One of the things that the judge will ask the employee during the settlement hearings is whether or not they understand that they do not have to settle the case. The employee should be aware that he or she could go to trial or proceed with the full hearing, present evidence, present witnesses, and have a judge make the official determination. In making that determination, there could be a decision that the employee is no longer entitled to benefits or whatever they’re asking for. In that case, weekly checks would stop. On the other hand, the matter could be decided in the employee’s favor, in which case the weekly checks would continue. In light of the consequences of proceeding further, the employee has to make an intelligent decision about whether or not settlement is in his or her best interest.

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Does The Settlement Have To Be Approved By The RI Workers’ Compensation Agency?

Question

Does my settlement have to be approved by the state workers’ comp agency?

Answer

Any type of settlement- whether it’s a denial and dismissal or a lump sum commutation- has to receive the approval of a judge from the Rhode Island Workers’ Compensation Court before it is official.

Settling Right

This is because the Rhode Island Workers’ Compensation Act is remedial in nature and is designed with some benevolent purposes for helping the injured worker. So, the last thing a judge would want to see is that an employee is trying to settle a case that is clearly not in his or her best interest.

What the Judge Looks At

The judge will look at whether or not the employee understands the settlement and the consequences of the settlement, as well as whether or not the employee is capable of some sort of work, even if it’s light or restricted in nature. The judge will also consider whether or not the employee has something in place to be able to receive future medical treatment. This is because a settlement typically means that the insurance company is no longer responsible for paying for future medical bills. Some judges will have other questions that they will ask in order to determine whether the settlement is in the best of interest of all parties.

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Do All Parties Have To Agree In Order For A Settlement To Proceed?

Question

Does everyone have to agree for my case to settle?

Answer

Generally, all parties have to agree in order for a settlement to proceed.

Agreement is Key

A settlement can’t be had if the employee does not agree. Likewise, no settlement can be had if the insurance company (typically the one paying the settlement) doesn’t agree. There are provisions in the workers’ compensation act that require a demonstration before the judge that the actual employer or the employer’s company understands that there is a settlement.

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How Long Does It Take To Get A Workers’ Compensation Settlement?

Question

My workers’ comp case just started- how long will it take to start getting my checks?

Answer

There is no rule about how long it takes to get a workers’ compensation settlement. In fact, many cases will never settle.

The Average Case

Having said that, if a particular case is the type of case where settlement makes sense, then it will typically take at least six months of being on benefits before settlement discussions even come up. The only exception to this is if you are talking about someone who is entitled to workers’ compensation benefits and gets compensation for some time. In that case, the type of settlement is a lump sum settlement that’s also referred to as a commutation. That typically takes time.

Denial and Dismissal Settlements

Another type of settlement is one where there is some dispute as to whether the injured worker even qualifies for workers’ compensation benefits. In those cases, there can be a type of settlement called denial and dismissal (a “D & D”), meaning that the employer will pay a lump sum that is typically much smaller than a commutation, in exchange for the employee giving up the claim. This may or may not make sense given the facts of a case and whether or not an employee is likely to succeed going forward. So, it’s important to distinguish between the two types of settlements in Rhode Island workers’ compensation cases when talking about settlements: D&D vs. Commuation.

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Is The Settlement I Agree To Final?

Question

I just settled- is it final or can I change my mind?

Answer

The settlement you agreed to is final.

The Decision is Final

The settlement that you agree to is final. Any settlement has to involve an appearance or hearing before the workers’ compensation court so that a judge can determine whether or not to approve the settlement. The judge and lawyers will question the employee at length in order to make sure that the employee has demonstrated that he or she understands the consequences of the settlement.

"Meds Open" Cases

It is important that the employee understand that they will never be able to go back to any court to reopen the case or ask for additional money. Note that we are now seeing some cases that settle with medicals still being paid for. These “meds open” type settlements involve paying you a lump sum and stopping your weekly checks, but keeping the obligation of the carrier to pay your ongoing medical bills open.

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What Is A Lump Sum Settlement In Rhode Island?

Question

What does a lump sum settlement mean in Rhode Island?

Answer

A lump sum settlement is an agreed-upon value paid to the employee that ultimately closes the case.

Lump Sum aka Commutation

A lump sum settlement in Rhode Island workers’ compensation cases is often referred to as a commutation. This situation generally involves a person who’s been on workers’ compensation for six months or more. If it doesn’t look like the employee is likely to return to his or her job for whatever reason, then there is the possibility of a lump sum settlement or commutation. In these cases, we try to calculate a fair number that takes into consideration how much longer the person would even be entitled to collect checks versus the likelihood that they could ever collect checks for that period of time before being knocked off by the employer.

Appearing Before The Judge

We try to arrive at a number that both sides are willing to accept. In order to do this, we must appear before a judge of the workers’ compensation court and explain the settlement. The judge will ultimately decide whether or not he thinks a settlement is in the best interest of both parties and decide whether or not to approve it accordingly.