How Much of a Settlement Can You Expect for a Herniated Disc under Workers Comp?
Learn How to Increase the Settlement Amount for Your Work-Related Herniated Disc Injury
A herniated disc is one of the most catastrophic injuries you can suffer at work. Regardless of whether the disc herniation is in your neck or back, it can result in periods of pain and discomfort over the rest of your life, the need to undergo surgery to repair the disc, failed back syndrome, and the need to find a new career that is less demanding physically and that may pay less.
Unfortunately, employers, workers comp insurance carriers such as Travelers and The Hartford, and third party administrators (TPAs) such as Sedgwick and Gallagher Bassett often add insult to injury by denying workers comp claims for a herniated disc. They may accept a muscle injury such as cervical or lumbar strain initially but will deny coverage for the herniated or bulging disc if it looks like surgical treatment is necessary and there will be an extended period of time missed from work. Fortunately, you do not have to accept this decision.
The purpose of this article is to help you get the best herniated disc workers comp settlement possible. It discusses both the medical and legal issues you will face during the workers comp claims process so that you understand your treatment options, the types of workers compensation benefits available, and what to consider when making decisions that increase the value of your herniated disc settlement.
Keep reading to learn more about the factors to consider when answering the question: How much is my herniated disc settlement worth under workers comp?
If you have any questions about your case, or are looking for a top-rated Virginia work injury lawyer, call me for a free consultation: (804) 251-1620 or (757) 810-5614. I’ve negotiated hundreds of workers comp settlements for employees who suffered neck and back injuries on the job, and I’m ready to help you navigate the workers compensation laws that decide your medical and financial future.
What is an Intervertebral Disc?
Your spinal column is made of cervical, thoracic, lumbar, sacral, and coccygeal vertebrae, which are bony structures.
In between each vertebra is a disc that provides cushioning and helps protect the spinal cord. These discs also allow movement between any two vertebrae.
An intervertebral disc is named for the vertebra it sits below. For example, the L4 disc is between the L4 and L5 vertebrae and the C2 disc is between the C2 and C3 vertebrae.
Each disc has two main parts: the annulus fibrosis and the nucleus pulposus.
Annulus Fibrosis (Outer Part of the Disc)
The annulus fibrosis is the outer portion of the disc. Its job is to protect the soft material in the center of the disc.
Made of fibrocartilage, the annular fibrosis is able to stretch and compress. This allows your disc to change shape and move on another.
Nucleus Pulposus (Inner Part of the Disc)
The nucleus pulposus is the soft core of the disc.
Made of water mostly, the nuclear pulposus can change shapes but does not compress much.
What is a Herniated Disc?
An intervertebral disc is fragile. It can handle some straight compression but has difficulty with shear stress. Shear stress, which occurs at L1 and L5 frequently, is a force that causes two structures to slide against one another in opposite directions.
A herniated disc is a disc where the annulus fibrosis tears or ruptures, causing part of the nuclear pulposus to protrude. Usually, the herniation occurs toward the back of the disc, where the annulus fibrosis is the thinnest and weakest. Depending on the severity of the herniation, the nucleus pulposus may extrude all the way out the disc.
A herniation causes lots of damage to the disc casing, which is irreparable. Discs are unable to repair themselves when damaged because they have no blood supply. A disc relies on tissue fluids circulating through it for materials that allow it to grow and stay healthy.
What are the Types of Herniated Discs?
There are three types of disc herniations:
Disc Extrusion
A disc extrusion occurs when the outer wall of the intervertebral disc tears, causing the inner disc material to project outside of the disc and into the spinal canal.
Protruded Disc
A disc protrusion occurs when a piece of the nucleus pulposus breaks through a tear in the annular fibrosis, but not as far as when there is a disc extrusion.
Disc Sequestration
A sequestrated disc, also called a free fragment, occurs when a piece of the nuclear pulposus separates and breaks through the annular fibrosis. This disc fragment then moves into the spinal canal, where it can move up and down and affect different levels of the spine.
What are the Common Effects of a Bulging or Herniated Disc?
Both bulging and herniated discs can cause the same effects, including:
- Irritation or pinching of spinal nerves, which can cause radiating pain, also called referred pain, to other parts of your body.
- Pain with movement because part of the nucleus of the disc has escaped and there is now less cushioning between vertebrae.
- Pain caused my vertebrae slipping on one another because of a deformed disc or discs.
What Causes a Herniated Disc?
There are many potential causes of bulging and herniated discs:
- Auto accidents
- A fall from a height, such as a roof or a ladder
- Being struck by a falling object, especially on the head, neck, or back
- Crush injuries
- Forklift accidents
- The gradual weakening of the annulus fibrosis
- Lifting a heavy object
- Progressive degeneration
- Pushing or pulling an object
- Repetitive motion injuries (cumulative trauma)
- Slip and fall accidents
- Squatting in an awkward position
- Trip and fall accidents
- Twisting while carrying an item.
- Workplace violence (assault and battery)
Because there are both non-traumatic and traumatic causes of a herniated disc, employers and insurance carriers often dispute and deny workers comp claims for back injuries involving disc bulging, herniation, or disease.
What Types of Employees are Most Likely to Suffer a Herniated Disc on the Job?
No matter your job or the industry you work in, you are at risk of suffering a herniated or bulging disc on the job.
But those of you who are required to lift, carry, push, pull, transfer patients, bend in awkward positions, or drive often are at greater risk of suffering a work-related herniated disc. This includes:
- Electricians
- Flight attendants and other airline employees that work for carriers such as American Airlines or United
- FedEx and UPS delivery drivers
- Home care attendants
- Mechanics
- Nurses
- Roofers
- Stockers at grocery stores such as Food Lion, Wegmans, Aldi, and Publix.
- Welders
You are also at greater risk of suffering a work-related herniated disc if you are:
- Age 30 or over. As you get older the covering of the spinal disc weakens and the inside of the disc hardens, putting you at greater risk of injury. I’ve helped many persons over the age of 50 qualify for Social Security Disability benefits because of disc problems.
- Deconditioned and starting a job that requires physical exertion
- Overweight
How is a Herniated Disc Diagnosed?
Many types of medical providers can diagnose and treat a herniated disc, including:
- Family Practitioners (Primary Care Providers)
- Nurse Practitioners
- Physicians’ Assistants
- Internists
- Orthopedic Surgeons
- Neurosurgeons
- Neurologists
- Pain Medicine Doctors
- Physical Medicine and Rehabilitation Specialists (Physiatrists)
- Physical Therapists
- Chiropractors
- Rheumatologists
Your medical provider will diagnose a bulging or herniated disc using these methods:
Medical History
At your first appointment, the doctor will ask how you were injured and write down a description of your pain and other symptoms. Make sure you tell every doctor you see how you were hurt and whether it happened on the job. Do not assume the doctor will know. Health care professionals are focused on making the right diagnosis and treating you, not on possible litigation.
Physical Examination
Your doctor will conduct a physical examination to test your symptoms in various positions. Usually, this exam is hands-on.
Your doctor may also observe you when you aren’t looking to make sure you are truthful and not exaggerating your symptoms. For example, if you walked with a limp in the doctor’s office, then the doctor or his staff may watch as you walk through the parking lot to your car to see if you still limp.
Diagnostic Tests
Depending on your description of the accident and symptoms, your physical examination, and how you respond to conservative treatment, your doctor may refer you for diagnostic testing. Common tests for herniated discs include MRIs, CT scans, and X-rays.
What is the Difference Between a Herniated Disc, a Bulging Disc, and Degenerative Disc Disease?
There are many terms used to describe spinal cord disc and nerve problems. For example, your workers comp doctor may use the following terminology from appointment to appointment:
- Annular tear
- Bulging disc
- Degenerative Disc Disease (DDD)
- Disc disease
- Herniated disc
- Lumbago
- Pinched nerve
- Ruptured disc
- Sciatica
- Slipped disc
These terms are often used interchangeably to refer to a work-related disc injury and are based on radiographic findings on an X-ray, CT scan, or MRI. But there are differences between each diagnosis.
Herniated Disc vs. Bulging Disc
There is a difference between a bulging disc and a herniated disc.
As discussed above, you have suffered a herniated disc when there is a tear or rupture of the annular fibrosis, the outermost part of the disc.
When you have a bulging disc there is no rupture or tear. Rather, the annular fibrosis is stretched, causing the disc to bulge.
Both bulging and herniated discs can cause back pain and damage the spinal nerve roots. I have represented many injured workers, including nurses, construction workers, truck drivers, and warehouse employees for Amazon, Kroger, Target, and Walmart, who have suffered bulging disc injuries that were just as severe and limiting as herniated disc injuries.
Herniated Disc vs. Pre-Existing Degenerative Disc Disease
If you’re reading this article, then there his a high likelihood you had degenerative disc disease before you were hurt on the job.
Many people start to have degenerative disc disease in their 20s and 30s, even though they’ve never suffered trauma to their back or neck. The degenerative disc disease is often the result of micro-traumas to the annulus fibrosis caused by body weight and normal wear and tear. Smoking cigarettes may also contribute to degenerative disc disease.
Your doctor may diagnose degenerative disc disease if you have a disc herniation. But it is possible to have degenerative disc disease without having a herniated disc. For example, your treating physician may diagnose disc disease if a specific disc has a loss of height or is dehydrated.
Usually degenerative disc disease without herniation or bulging results in mild back pain. If it causes severe pain, then it is usually for only a few days at a time.
Orthopedic doctors treat degenerative disc disease nonsurgically in most cases, using physical therapy and prescription medication. Those of you with a herniated disc affecting a spinal cord nerve root are more likely to require surgery.
For more information on this topic, read my article: Workers Compensation for Degenerative Disc Disease and Arthritis.
What are the Most Common Herniated Disc Injuries and Their Symptoms?
The symptoms you have from a herniated disc and the limitations it causes depend on what disc is herniated and whether it is in the cervical, thoracic, or lumbar spine.
Herniated Disc in Low Back (Lumbar Spine)
More than 80 percent of herniated disc injuries occur in the lumbar spine.
The most common areas for lumbar spine herniation are the L4-L5 and L5-S1 levels. I’ve negotiated hundreds of workers compensation settlements for herniated discs in the lower back.
Herniation at L5-S1 Level
A herniated disc at L5-S1 often compresses and impinges the S1 nerve root. This may cause:
- Weakness in the leg, all the way down to the calves and ankles
- An inability to raise your toes
- A diminished reflex in your Achilles Tendon
- Numbness, tingling, and sensory loss all the way down to your calf and the lateral side of your foot
Herniation at L4-5 Level
A herniated disc at L4-L5 often causes compression and impingement of the L5 nerve root. This may cause:
- Weakness in your big toe
- Weakness in your entire foot
- Pain and sensory deficit down the anterior part of your affected leg
Herniation at L3-L4 Level
A herniated disc at L3-L4 often compresses and impinges the L4 nerve root. This may cause
- Pain and weakness in your quadriceps muscle
- Weakness or difficulty when extending your knee
Herniated Disc in Neck (Cervical Spine)
Though not as common as low back herniations, a herniated disc in the cervical spine can cause just as much pain, discomfort, and limitation, if not more.
Herniation at C4-C5 Level
A herniated disc at C4-C5 may cause impingement of the C5 nerve root. An impinged C5 nerve root causes weakness in the upper arm’s deltoid muscle. It may also cause shoulder pain.
Herniation at C5-C6 Level
A herniated disc at C5-C6 may cause impingement of the C6 nerve root. An impinged C6 nerve root causes weakness of the biceps and wrist muscles.
Herniation at C6-C7 Level
A herniated disc at C6-C7 may cause impingement of the C7 nerve root. This may cause weakness in the triceps and fingers.
Herniation at C7-T1
A herniated disc at C7-T1 may cause C8 nerve root impingement. An impinged C8 nerve root may cause difficulty with gripping and handling. This is a problem for injured workers whose jobs require repetitive hand use.
Herniated Disc in Mid Back (Thoracic Spine)
Thoracic spine disc herniations are less common than herniated discs in the cervical and lumbar spine. But they can cause serious problems and often require spinal surgery.
I have negotiated herniated disc workers comp settlements for employees hurt in a range of industries and occupations.
What is the Average Settlement for a Herniated Disc in Workers Compensation?
There is no “one-size-fits-all” approach to calculating the value of a herniated disc claim. I’ve obtained herniated disc settlement ranging from $10,000.00 for a client who improved after a week of bed rest and physical therapy with limited time off from work to more than $1,000,000.00 for an injured roofer who requires a wheelchair and will never return to his past work. You can see some of my case results here.
There are, however, several factors to consider when determining the correct settlement amount for your herniated disc settlement:
Can You Prove that Your Work Accident Caused Your Herniated Disc or Exacerbated, Aggravated, Accelerated, or Flared Up Your Pre-Existing Degenerative Disk Disease?
As I discussed earlier, many people have degenerative disc disease even though they’ve suffered no trauma. This fact, as well as multiple medical studies showing that people who are asymptomatic (no symptoms) may have herniated discs that are visible on imaging, means that an MRI or CT scan showing herniation or bulging of a disc may not be enough to win your case in front of the Workers Compensation Commission.
To prevent this, you have two options:
1. Get a doctor to state that the work accident caused your disc herniation. This is possible if you:
- Were involved in a traumatic event, such as work-related motor car crash
- Completed a written work injury report
- Notified your employer of the accident
- Have no history of prior back or neck problems or medical treatment
- Have no prior MRI showing disc herniation
2. Ask a doctor to state that the work accident aggravated, exacerbated, accelerated, or worsened any pre-existing disc disease you may have had, including herniation. This is possible if you:
- Were able to work without difficulty for a period before you got hurt at work
- Had not treated for your degenerative disc disease in the 3-month period before your injury
- Went from asymptomatic to symptomatic after the work accident
- Had a change in the nature of your symptoms in the back or neck, including new radiating pain
- Were not recommended for surgery but now need surgery to fix the herniation
You do not have to prove that the work accident was the primary cause of your herniated disc, only one of the causes or contributing factors to your disability or need for ongoing medical care.
How Much Did You Earn at the Time of Your Herniated Disc Injury?
How much workers comp pays often depends on how much you earned while working for your pre-injury employer.
The more money you made, the greater the potential value of a herniated disc settlement. The less money you made, the lower the potential value.
Are You Eligible for Wage Loss Benefits Because of the Disc Herniation?
If your herniated disc results in a period of total disability from all work, then you are eligible for temporary total disability (TTD) benefits for that period. You can also receive TTD benefits if you are restricted to modified duty but your employer cannot accommodate those restrictions.
If you return to modified duty work, either with your pre-injury employer or another company, and earn less money because you can no longer do the things you once did or are working fewer hours, then you can receive temporary partial disability benefits for your herniated disc. These benefits are paid at 2/3 of the difference between your pre-injury average weekly and your post-injury wages.
Are You Eligible for Permanent Partial Disability Benefits Because of the Herniated Disc?
When you reach maximum medical improvement (MMI) for your work injury, you may be entitled to permanent partial disability (PPD) benefits for loss of use of the affected body parts.
Virginia workers compensation law does not allow PPD benefits for injuries to the back and neck solely, but you can receive PPD benefits for a herniated disc if the injury affects your arms or legs. It is common for a herniated disc in the neck to cause problems with the arms and a herniated disc in the back to cause problems with one or both legs.
To qualify for PPD benefits, you must obtain a permanent impairment rating from a licensed physician. This impairment rating is worth a specific amount of money depending on your pre-injury average weekly wage, the body part affected, the percentage impairment.
Will You Require Vocational Rehabilitation Services Because the Herniated Disc Injury Prevents You from Going Back to Your Old Job?
If you have light duty restrictions because of your herniated disc and the employer is unable to accommodate those restrictions, then you can request vocational rehabilitation services at the employer and insurance carrier’s expense.
These services are expensive and you should include their potential value when negotiating a herniated disc settlement.
What Medical Treatment Do You Need for Your Herniated Disc? More Importantly, Will You Need Disc Surgery for the Herniation?
The goal of treating a work-related herniated disc injury is to relieve pain and restore function.
Usually, doctors will start with conservative treatment of the herniated disc. Conservative treatment includes:
- Bed rest
- Traction
- Exercise – It’s important to keep moving if possible. This improves your recovery.
- Prescription Medication and Over the Counter (OTC) drugs, including anti-inflammatories, muscle relaxants, and analgesics
- Epidural Steroid Injections (ESIs) for chronic pain
- Physical Therapy
- Hot and Cold Application
- TENS units
- Acupuncture
- Chiropractic care
For many of you, conservative treatment will help and allow you to return to work. But if it fails, then an orthopedic surgeon or neurosurgeon may perform one of the following operations for your herniated disc:
- Laminectomy with nerve root decompression
- Spinal fusion
These are expensive surgeries ranging from $25,000.00 to $150,000.00 all-in. There is also a possibility that you will need a fusion if the laminectomy fails, or that if you undergo fusion to begin with you will need hardware replacement or an extension of the fusion in the future. It is common to develop arthritis at the levels next to where you undergo the initial fusion.
Most insurance carriers require you to cash out future medical treatment as part of the settlement. Make sure you are aware of the projected value of your medical needs because of the herniated disc.
Are You Under an Open Award or Is a Workers Comp Trial Required?
Because injured workers cannot receive damages for pain and suffering under workers comp, insurance carriers almost always have leverage when negotiating settlements.
There is, however, an exception.
If you have a Workers Compensation Award Letter that provides benefits, including lifetime medical treatment, then you are in a much better position to negotiate a workers comp settlement for your herniated disc. When you have an Award Order you can avoid the risk of losing at a workers comp hearing and the employer and insurance carrier cannot stop your benefits arbitrarily. Rather, they must file an employer’s application for hearing and provide evidence and documentation supporting their position that you are no longer eligible for benefits.
What Defenses is the Insurance Carrier Raising to Your Herniated Disc Claim, and How Strong are They?
The most common defense arguments in workers comp claims for herniated disc injuries are:
1. You have a pre-existing condition affecting your back or neck.
2. You suffered a minor strain or sprain that resolved and any ongoing problems or treatment needs are related to your pre-existing condition, not the covered injury.
3. You were hurt, but the accident was the result of your willful misconduct. For example, insurance carriers often argue that a person is not entitled to workers comp benefits because of a safety rule violation if they fall from a height or hurt their back while lifting someone or something. I defeated a violation of a safety rule defense in a recent case involving a union lineman who fell from a height and injured his disc.
4. Your injury was the result of repetitive motion, not a specific, identifiable event.
5. You suffered a herniated disc but the recommended treatment is unreasonable or unnecessary and a medical treatment denial is appropriate.
If your treating physician disagrees with any of these defenses, the insurance carrier will likely request that you attend an Independent Medical Examination (IME). The IME doctor, who is handpicked and paid by the insurance carrier, is more likely to issue a report that is unfavorable to you.
Part of determining a reasonable settlement range for a herniated disc claim is evaluating the strengths and weaknesses of potential defenses.
Are You Required to Resign as Part of Settlement?
Many insurance carriers will ask you to voluntary resign to settle your workers comp case.
If you are back to work for your pre-injury employer, this can be a major inconvenience and financial risk. Make sure you ask for an additional lump sum to buy yourself more time to find a new job within your restrictions.
If you have permanent work restrictions that prevent you from returning to your pre-injury job, you should still ask for additional money to resign. The amount, however, will be less.
Hire a Top-Rated Attorney to Negotiate a Workers Comp Settlement for Your Herniated Disc
A work-related herniated disc injury can cause permanent damage to your spinal cord, potentially resulting in the need for tens of thousands of dollars in medical treatment and a permanent career change. A fair herniated disc workers comp settlement can ease some of these concerns by putting you and your family in the best position possible to deal with the challenges that come with this type of injury.
If you want help taking on the insurance claim adjuster and their team of defense attorneys, call me today: (804) 251-1620 or (757) 810-5614. Act quickly. You must move forward with your claim before the applicable workers comp statute of limitations expires.
From filing a workers comp claim to uncovering and developing facts in discovery to defending you at deposition to representing you at mediation or trial, I’m here to help you get the most amount of money possible for your herniated disc injury. And to help you identify other income available to you for your on-the-job disc injuries, such as Social Security Disability, Long Term Disability, work-related VRS retirement, and monetary damages through tort law if a third-party’s negligence caused your harm.
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