To settle a workers’ compensation case, assuming you are already entitled to and are receiving benefits, there’s no precise formula to calculate the settlement amount, since not all cases settle. But generally, from the insurance company’s perspective, they start by assessing whether the injured worker is partially or totally disabled. This matters because the insurer has to consider its worst-case financial exposure. For partially disabled workers—which is the majority—the maximum duration for receiving weekly benefits is six years. So, both the insurer and your lawyer will do the math: your weekly benefit multiplied by six years. That total often becomes the upper ceiling for settlement value. If the worker is totally disabled, however, they can theoretically collect weekly benefits for the rest of their natural life. In that case, settlement evaluation involves calculating life expectancy, weekly benefits, and any applicable cost-of-living adjustments (COLA), which only apply to those on total disability. As a result, totally disabled workers often see higher settlement values, since there’s no six-year cap. There are rare exceptions where partially disabled workers may qualify to continue benefits beyond six years, and those exceptions also affect settlement value. Ultimately, lawyers use these calculations to make a settlement demand, and if the insurer is open to settling, they’ll respond with an offer. Negotiations continue until both sides agree on the amount and terms of the settlement.

You can sometimes—an employer and an employee will agree upon something that the Workers’ Compensation Act calls suitable alternative employment, which has certain statutory built-in protections for both the injured worker and the employer. It’s just one of the mechanisms built into the Act to get the employee back to work in some capacity, if he or she can. It’s not something you can force an employer to do, but even if you’re not going back to suitable alternative employment as defined by the Act, there’s no prohibition against you and your employer agreeing on some other job for you to do. You can’t necessarily force your employer to do that, but again, generally both sides want to see the employee get back to work, and many employers can be accommodating in finding something for you to do. Whether or not you can force your employer to take you back in some alternative position is something that depends on a lot of facts, and it’s something your lawyer would speak to you about.

If you simply can’t do the physical demands—or all of the physical demands, I should say—of your job due to your injury, you’re at least partially disabled, and if you’re partially disabled from doing your former job duties, that equates to entitlement to weekly benefits in workers’ compensation, in general.

Basically, it doesn’t come down to a percentage in terms of how much better you are. Rather, I would look at if you’re, for example, your treating doctor gives the opinion that he thinks you’re capable of returning to your full duties at work, then that opinion is going to result in your weekly benefits being stopped. If for some reason you don’t return, if there’s contrary medical opinions or you’re able to show through other evidence that you can’t do your full duties, then you could remain out on weekly benefits. But generally speaking, as soon as you’re good enough to go back to the job, even though you may not be feeling 100%, quote unquote, then you could be required to go back to work or, if you choose not to, have your weekly benefits stopped.

Yes, you can return to work while still receiving workers’ compensation benefits, as long as you’re returning in some capacity that reflects you’re still partially disabled but able to do some work. If you’re earning less money in your return to work than you were at the time of your injury—whether due to fewer hours, light duty, or restricted responsibilities—you won’t receive your full weekly workers’ comp check. Instead, you’ll receive a reduced benefit, calculated based on the difference between what you were earning before the injury and what you’re earning now.

If you have a permanent injury, which is a little different than permanent disability, permanent injuries can often entitle you to a separate payment of benefits called loss of use benefits. That would look like a doctor saying you have a 5% loss of use of your leg or arm, for example, as a result of the work injury. When it comes to loss of use, there’s a very specific formula for determining what amount of money 5% loss of use equates to. If you’re saying you have a permanent disability—meaning you will always be disabled from doing the job you were doing at the time you were hurt—that can occur in two contexts. First, if you’re only partially disabled, and you could be permanently partially disabled, then unfortunately you’re always going to live with that, but you would fall under the general rule, which is that partially disabled people, even if that partial disability is permanent, are only entitled to collect a weekly benefit check for six years. If, at the six-year or 312-week mark—and when I say mark, it isn’t literally 312 consecutive weeks and then it stops; it’s once you’ve received 312 total weeks of benefits, which can happen over a longer period of time than six years—your right to a weekly check stops. That stops even if you’re still just as disabled as you were in the first six years you were collecting. That’s just one of the many incentives that are built into the Workers Compensation Act to get you, if you can’t go back to the job you were doing when you were hurt, to look for alternative employment or a different career path so that you can get back to earning. If you’re permanently disabled and you’re totally disabled—meaning you fall under the category of persons who not only cannot do the job they were injured at but are hurt so badly and so disabled that they really can’t do any employment or perform any work—then that six-year time frame doesn’t apply, which means you could theoretically, if you’re totally disabled, collect a weekly check for the rest of your natural life.

If you’re unrepresented, the first thing I’d suggest is to hire a lawyer because settlement may or may not be in your best interest depending on many different factors and where your case stands, but in general, if you’re being pressured to settle, understand that you have absolutely no obligation to do so—you never have to settle your workers compensation case, the insurance company cannot force you to settle, and likewise, you can’t force the insurance company to settle even if that’s something you want. A lot of times, clients say, “I just want to settle this,” and while there are a lot of ways we can potentially make that happen, it’s important to understand that settlement is a mutual agreement—it takes two to tango—so if the insurance company has no interest in settling, you can’t compel them to just as they can’t compel you. Settlements raise a lot of questions, like whether it’s the right amount, whether it’s fair, and whether it’s the right type of settlement, and a seasoned workers compensation attorney will be able to walk you through all of your options so that you fully understand what’s best for your situation, the best and worst case scenarios, and perform a complete risk-reward analysis of settling versus not settling your case.

They can and do, unfortunately, and they do it a lot—it can be creepy at times and it can be annoying, but the insurance company often can and does hire independent or third-party investigators or PIs who will follow you, who will take pictures, who will take videos, and they will sit there day after day, hour after hour, capturing nothing until they try and get that one moment where, you know, you perhaps lift something you shouldn’t be lifting or do something else that they will take a snippet of and take out of context and try and spin that into an argument that you should no longer be entitled to workers comp benefits, that you’re a fraud, or that you’re just no longer disabled. We see that happen very often, and most of the time these investigators will look at you and see nothing, and you may not even know what happened, but they do take videos of people who are out on comp, so my typical advice to any client is always conduct yourself in a way as if someone’s watching, because unfortunately they do do that. If you happen to be someone who was assigned an investigator and they’ve got some video of you doing whatever, it’s important to be honest with your lawyer and honest with yourself about why it was that you were doing what you were doing, what’s the context—there’s a difference between saying you can’t do something or saying you don’t do something based on your physical limitations, and it’s often important to have a long and frank talk with your lawyer so that he or she understands where you’re coming from and what the reasons are for the footage that they’re going to now selectively throw up in the courtroom or to the judge to affect your benefits.

Privacy concerns always come up in all cases, and workers compensation cases are no different. I would say you don’t have any privacy rights that are particular to workers comp or workers comp law, but you do have your, um, statutory confidentiality rights in your healthcare information. You have other, um, privacy rights to, uh, have your Social Security number, your date of birth, other identifying information either redacted from workers compensation forms or marked as confidential or sealed through, uh, how they’re filed with the court when that happens, and you always have HIPAA and other, um, confidentiality laws that apply to your sensitive healthcare information and your medical records.

The only, um, and most important issue when it comes to contractors is whether or not they are an employee or truly an independent contractor—if you’re an independent contractor and there’s a 1099 involved, uh, and perhaps a form designating you as an independent contractor is on file at the Rhode Island Department of Labor and Training, then, uh, if you’re not an employee, you’re not entitled to workers compensation benefits. But, um, if there is, uh, a temp agency involved and, uh, you’re placed somewhere, uh, your employer typically is your— is the temp agency and not the, uh, employer, uh, you were placed at—it doesn’t make a difference in terms of you’re still entitled to workers compensation benefits because you are an employee at the end of the day and not an independent contractor. But, um, that’s what we consider when we start hearing about you’re a contractor or you’re borrowed or you’re placed somewhere or it’s a one-time gig—um, it always comes down to can you prove, as you must in a workers compensation case, an employer–employee relationship.