Tuesday, February 05, 2008
What is a Fair Final Settlement?
That is a question I am asked over and over but usually too early. I like to tell people that the legal determination is like the tail of the dog...and the dog itself is the medical treatment. It is usually too soon to be guessing about any settlement or amount due before the medical care has finished. Trying to figure it out before a person reaches MMI (maximum medical improvement) is nearly impossible. If someone is in a hurry then any settlement is going to be based on very unclear facts. After all if the doctor can improve your condition then finish the treatment. If you do not then do not expect the insurer to give you big bucks. They too have a right to say give it a chance. Don't say you are in horrible shape and deserve a lot of money when you don't finish the treatment. If you do then seek to settle the figure will often be much lower. My preference is to finish out with your treatment and then see what is the best way to resolve the case. If you are permanently and partially disabled we pay attention to the rating and the future medical care. The rating or damage estimate is also called impairment and more then one doctor can be involved in the rating. The treating doctor would rate and then we usually ask for a second opinion through the state. The second opinion is called a DIME for Division Independent Medical Exam. That opinion can address your rating and much more including your treatment. I've seen treating doctors say zero and a DIME come back much much higher. Further a treating doctor may say you are finished but the DIME says more can be done. It almost always benefits the claimant to go with a DIME. However it is a judgement call (it can also hurt your claim) so attorney advice is often essential. All of this enters into a possible settlement but never expect the insurer to roll over or guide you on this. Regretably extremity injuries such as to a hand or leg usually receive low permanent benefits but there are exceptions. As for losing your trade or occupation...Colorado gives nothing for this unless you can allege you are permanently and totally disabled which can lead to very high settlements. Trying to do this on your own is not just complicated it almost guarantees a battle. Still total disability does not mean you are flat in bed all the time. It is more a matter of how employable you are in the real world. Insurers like to say if you can work anywhere even part time you are employable but it is more complicated then that. Often we have to use vocational experts to help out with this. In any event the right time to discuss settlement is after treatment and a rating. At that time it must be carefully reviewed. Finally we also have to consider Medicare in some cases. Here is an example....your cash calculation amounts to $100000 but also the insurer arranges a medicare fund of $60000. The numbers can be higher or lower but requires much thought. What is a medicare fund? Medicare may require money be set aside in a fund to help with your future medical needs where you are going to also be getting medicare benefits. So to the question...what is a fair final settlement? It can be as big as legally allowable but like snowflakes each case is different. I really recommend that anyone wanting to settle or contacted by the adjuster to settle use an attorney. They can do two things. First, they can protect you and help you to max out your benefits. Second, they can calculate and negotiate a settlement that usually is quite a bit higher then what has been offered.