A Workers compensation claim in Florida can be settled, sometimes it’s referred to as a “washout”. The requirements for a workers compensation settlement depend on whether the injured worker is represented by an attorney. Settling a workers compensation case without an attorney can come at a cost and is generally more difficult.
The injured worker should keep in mind that the insurance company will use an attorney to represent them even if the injured worker does not have an attorney. The lawyer representing the insurance company has a duty to protect their client and not the injured worker.
SETTLEMENT WITH AN ATTORNEY REPRESENTING THE INJURED WORKER
Studies have shown that when the workers compensation claimant has hired a lawyer, it costs the workers compensation insurance company approximately 40% more.
Effective July 1, 2002, when workers compensation claimant is represented by an attorney they can settle their case at any time. The injured worker does not have to be at maximum medical improvement. Also, the injured worker is not required to appear before the judge of compensation claims for a settlement hearing to determine whether the settlement is in his best interest or will definitely aid in his rehabilitation. The judge only approves the attorneys fees paid by the workers compensation claimant which are established by law. The attorney, as required by law, provides documentation about any child support owed and if past due child support is owed to the judge. If child support is owed, adequate provision for payment of past due child support must be made, usually no more than one-half of the injured worker’s net settlement.
The reason behind streamlining the settlement process when the workers compensation claimant is represented by an attorney is that the worker is protected by his attorney who makes sure that the injured worker is getting a fair settlement given the facts of his case and the attorney makes sure the injured worker knows what he is doing. Questions about indemnification clauses and the impact of the settlement on potential entitlement to social security and medicare benefits are addressed by the attorney.
SETTLEMENT WITHOUT AN ATTORNEY REPRESENTING THE INJURED WORKER
If the injured worker does not have an attorney, he or she must be at overall maximum medical improvement before he or she can settle the case. In some cases the employee may be at maximum medical improvement for some of his injuries and not other injuries which delays settlement. Also, it is difficult to get MMI ratings from the doctor (There is an exception to this requirement. When the workers compensation carrier files a notice controverting the workers compensation claim within 120 days of receiving the notice of injury and the judge finds a justiciable [real] controversy for the denial exists).
In addition to being at MMI, the employee must attend at a hearing to show that settlement will definitely aid in the employee’s rehabilitation or is otherwise in the employee’s best interest. The judge will require the injured worker to make adequate payment of past due child support.
The injured worker should be extremely careful during settlement discussions with the adjuster or the insurance company’s attorney. In some cases a verbal settlement can be reached without the injured worker realizing they have settled their claim.
In some instances the adjuster or attorney for the insurance company will make promises and representations when reaching a verbal agreement that are not set forth in settlement paperwork. Most written settlement agreements include what is called an “integration clause”. An integration clause will state that the terms set forth in the written agreement take the place of, or cancel, all prior promises and representations so the court will not consider any prior promises or representations.
The unrepresented injured worker should also be careful about indemnification clauses. These are promises made by the injured worker that they will pay any claims made against the insurance company for outstanding charges stemming from the workplace accident and injuries.
Also, the injured worker should be aware that the settlement of the workers compensation case in some cases can affect the amount of social security benefits and medicare benefits they may be entitled to.
Settlement of the workers compensation claim can have serious consequences. Call us today for a free consultation. Compensation you deserve….it’s what we work for.