Should I Settle My Workers Comp Case Before or After Surgery?

 

Workers Comp Pays for Surgeries that are Reasonable, Necessary, and Causally Related to Covered Work Injuries. But Sometimes, Settling Your Claim Before the Operation is Best. Learn How to Decide Whether to Negotiate a Workers Compensation Settlement After Surgery or Before.

 

Several events should prompt you, the employer, and the insurance company to consider settlement during the workers comp claims process. A doctor’s recommendation that you undergo surgery for the work injury is one of these milestones.

 

Deciding to have a surgical operation is often a difficult choice in the best of circumstances. It is made more challenging by the uncertainty and complexity of workers comp law.

 

This article’s purpose is to explain the factors to consider when choosing whether to settle your workers compensation case after surgery or before having a suggested operation. 

 

The study and balancing of multiple points are necessary to decide if you should settle before or after surgery. Ultimately, it comes down to whether you want the surgery. And if you do, when you want the procedure, who you want to perform it, the likelihood that workers comp will cover it if the insurer disputes liability, your current functioning, and the settlement amount offered. You must weigh the advantages of getting more money in your pocket now and having control over your treatment against the potential benefits of having the insurer pay for surgery and any complications.

 

Email or call me if you have questions after reading the information and would like a consultation with a top-rated work injury lawyer: (804) 251-1620 or (757) 810-5614. Hundreds of employees have relied on me to negotiate tens of millions of dollars in workers comp benefits and settlements. You only have one shot to settle – and my law firm can help you.

 

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What is Surgery? 

 

Health trade organizations such as the American College of Surgeons and state legislatures, including the Virginia General Assembly, have defined surgery

 

Surgery is the structural alteration of the body by the incision (cutting into) or destruction of tissue to diagnose or treat a medical condition or disease using any instrument that causes localized alteration or transportation of human tissue. 

 

The tissue can be burned, cut, frozen, probed, vaporized, altered by mechanical, thermal, electromagnetic, or chemical methods, or manipulated by a closed reduction for fractures. 

 

Some jurisdictions and medical professionals consider removing foreign objects from the eyes or body and epidural steroid injections for pain as surgery also.  

 

Standard surgical instruments include knives, scalpels, probes, lasers, ultrasound, radiation, and needles.

 

Who Can Perform Surgery?

 

A health care provider can perform surgery if they are:

 

  • Licensed by the Board of Medicine as a doctor of medicine, osteopathy, or podiatry; or

 

 

  • Licensed by the Boards of Medicine and Nursing as a nurse practitioner; or

 

  • A physician assistant acting under a doctor’s supervision

 

Does Workers Compensation Pay for Surgery?

 

Yes. You can use a Workers Compensation Award Letter to pay for surgery recommended by your treating physician. 

 

Workers comp law requires employers or their insurance carriers to pay for all reasonable and necessary medical care related to your work injury, including surgery. Qualifying medical care and surgery are covered 100% – you do not owe a deductible or any co-payments. 

 

Workers compensation medical benefits include postoperative care, such as:

 

  • Assistive devices (canes, crutches, walkers, wheelchairs, etc.)

 

 

  • Home and vehicle modifications (ramps, handrails, doorway alterations, pedals, sliding doors, stairlifts, bed lifts, handicap-accessible vehicles, etc.)

 

  • Home health care services from private nurses or family members

 

  • Infection care (MRSA, staph infection, etc.)

 

  • Orthotic appliances

 

  • Physical therapy

 

 

  • Prosthetic appliances

 

  • Replacement of surgical hardware

 

  • Revision surgeries

 

  • Skilled nursing

 

  • Wound care

 

What are the Most Common Surgeries in Workers Compensation Claims and Auto Accident Lawsuits?

 

Many of the injured workers and car accident victims I represent have undergone or received referrals for surgery. 

 

Orthopedic surgery is the most common type of surgery for injured employees. Orthopedics focuses on treating the musculoskeletal system (bones, joints, ligaments, muscles, nerves, and tendons). 

 

Neurological surgery is also prescribed frequently in workers compensation. This medical specialty treats injuries and disorders of the brain (skull fracture, etc), spine, cerebrovascular system, and central and peripheral nervous system.

 

Plastic surgery for burn injuries (skin grafts, etc) and heart surgery for cardiovascular diseases are not as prevalent in workers compensation cases but still needed by some injured employees.

 

Below are lists of the most common surgeries for injured workers. I have litigated and settled workers comp claims involving each of these operations. 

 

Common Orthopaedic Surgeries

 

Orthopedic surgeons use different procedures to treat acute trauma injuries and degenerative conditions. These methods include:

 

  • Arthroplasty (joint replacement): This procedure is the surgical replacement of an arthritic, necrotic, or otherwise damaged joint with a prosthesis. 

 

  • Arthroscopy: This surgery is minimally invasive and uses small incisions, an endoscope, and irrigation fluid (saline) to examine and treat the damaged body part.

 

  • Debridement: This procedure removes damaged, dead, and infected body tissue (muscle, bone, skin) to heal the healthy tissue. 

 

  • Fusion: This operation uses bone grafts and hardware (rods, screws, etc.) to fuse bones.  

 

  • Internal fixation: This procedure holds broken pieces of bone together after a fracture. 

 

  • Open surgery: This term refers to a surgical procedure that uses large incisions to examine and treat the body.

 

  • Osteotomy: This surgical procedure corrects bone deformities by cutting, then repositioning the bone.

 

  • Soft tissue surgery: This operation repairs ligaments, tendons, and stretched nerves. 

 

The Orthopaedic ClinicCarolinas Center for Surgery, Cedars Sinai Marina Del Rey Hospital, and past board certification applications indicate these are the most common orthopedic operations. 

 

  • Acetabular osteotomy

 

 

 

 

  • Debridement of skin, muscle, or bone

 

  • Forearm (radius) bone fracture repair

 

 

  • Joint fusion

 

 

  • Knee arthroscopy and chondroplasty to correct or remove damaged cartilage in the knee and allow it to move freely and without pain

 

  • Knee arthroscopy and meniscectomy to repair a torn meniscus

 

  • Knee replacement surgery (either partial or total)

 

  • Kyphoplasty

 

 

 

  • Removal of hardware and support implants

 

  • Repair of a femoral neck fracture

 

 

  • Repair of a trochanteric fracture

 

  • Revision joint replacement surgery

 

  • Shoulder arthroscopy 

 

  • Shoulder arthroscopy and debridement

 

  • Shoulder arthroscopy with decompression, debridement, biceps tenodesis, and distal clavicle excision 

 

  • Shoulder replacement surgery

 

  • Spinal cord stimulator implantation

 

 

 

Common Neurosurgery Procedures

 

A neurosurgeon might provide medical attention and take over care if you suffer spine trauma or a work-related head injury. 

 

Like orthopedic surgeons, neurosurgeons perform laminectomies, micro discectomies, and spinal fusions. 

 

Neurosurgeons also perform the following operations:

 

  • Chiari decompression: This procedure removes the bone at the back of the skull to create more space for the brain.

 

  • Craniotomy: This procedure is the surgical removal of part of the skull. 

 

  • Shunt: A shunt drains excess cerebrospinal fluid (CSF) from your brain.

 

  • Spinal tap (lumbar puncture): This procedure helps your physician diagnose the underlying condition and rule out possible causes of your symptoms.  

 

Can I Choose My Surgeon under Workers Comp? 

 

Your right to choose your surgeon depends on where you are hurt and your case’s procedural status. 

 

Each state has unique workers compensation laws governing an injured employee’s right to select their surgeon.  

 

In Virginia, you have the right to select your surgeon if your employer or its workers compensation insurer denies your claim. You can choose who does your surgery if you need the operation before the workers comp hearing to determine compensability

 

However, your freedom to choose your workers comp surgeon is restricted once the insurer accepts the claim or the Workers Compensation Commission enters an order or judicial opinion holding that your injury is covered. 

 

The insurer’s liability is limited to paying for your attending physician’s surgical services. Treatment with a different surgeon could be considered unauthorized. And your employer and its insurance company are not responsible for the payment of unauthorized treatment. 

 

For more information on this topic, please read my article: How to Change Treating Physicians in Workers Comp

 

Do I Have to Get Surgery if My Workers Comp Doctor Recommends It? 

 

Maybe.

 

Workers comp cannot make you have surgery. But it can penalize you if you do not have it.

 

Under workers comp law, you must have surgery if your attending physician states that it is necessary or if the Workers Compensation Commission orders it. You risk losing your medical and wage loss benefits (Temporary Total, Temporary Partial, Permanent Partial Disability) by refusing the operation. 

 

There is, however, an exception to this rule. You do not have to get the surgery if you prove that your refusal is justified.   

 

The Commission will view the refusal to get surgery from your point of view. Potential grounds for finding the unwillingness to have surgery is justified include:

 

  • Your treating surgeon states the procedure’s outcome is uncertain. For example, a 50% chance that the surgery fixes the problem could be a basis for not moving forward with the treatment. 

 

  • There is a significant risk that surgery could result in paralysis, severe infection, or further harm and function loss. 

 

 

  • A health care provider gives evidence that you fear surgery, which prevents you from having it. For example, having a family member who suffered severe surgery complications may serve as the basis for refusing to have it. 

 

 

Can the Insurance Company Refuse to Pay for Surgery for My Work Injury?

 

Yes. Self-insured employers, workers comp insurers, and third-party claim administrators (TPAs) such as Sedgwick, Gallagher Bassett, and ESIS often refuse to authorize surgery. 

 

Surgery is expensive. To save money, insurers often delay or deny surgical authorization – even if you have an Award Order. The hope is that you give up and do not push the issue. 

 

Common reasons given for denying surgery include:  

 

 

  • The operation is not medically necessary because it is unlikely to help. 

 

  • Conservative treatment methods have not been exhausted.  

 

  • An unauthorized physician recommends the surgery, not your authorized doctor. 

 

What to Do When the Insurance Company Refuses to Pay for Surgery for Your Work Injury

 

You have options if the insurer refuses to pay for a workers comp surgery. 

 

First, contact the claim adjuster and ask why they have denied your surgery. Though you might not be able to persuade the adjuster to approve it, you may gain information that can help you if litigation is required.

 

Second, file a workers comp claim alleging a change in condition and seeking authorization and payment of the recommended surgery. Include supporting medical documents with the claim.  

 

When you file a claim, the Commission will send the insurer a 30-day order. The insurer has 30 days to state if it will approve or deny the surgery and, if denying it, why. A failure to respond to the order might result in the Commission assessing sanctions and fines against the insurer. 

 

The Commission will refer your claim for surgery to the hearing docket if the insurer denies it and you have submitted medical evidence. 

 

Next, serve the insurer with discovery requests (interrogatories, requests for the production of documents, requests for admissions), get a supportive report from your surgeon, and take depositions if necessary. 

 

Focus on developing and presenting evidence that shows:

 

  • Your attending physician recommends surgery and finds it medically necessary.

 

  • Conservative treatment methods failed.

 

  • You and your treating surgeon believe there is a causal connection between the work-related injury and the surgery. You need not prove that the trauma is the sole or even the primary reason you need surgery, only that it is a cause. This distinction is crucial if you have a pre-existing condition such as degenerative disc disease or osteoarthritis

 

You may choose to have the surgery while this claim is pending. The workers comp insurer will have to pay for the surgery if you win the claim, even if someone else paid for the surgery. 

 

But remember: You are responsible for paying for the operation if you lose. This risk is usually too much to accept unless you have private health insurance or a health care plan (Medicare, Medicaid, Tricare, etc.) that will pay for the surgery. 

 

To learn more about this topic, read my article: Dealing with a Medical Treatment Denial during Your Workers Comp Case.  

 

How Long Does the Workers Comp Claim Adjuster Have to Authorize and Approve Surgery?

 

Unfortunately, there is no time limit for a workers comp insurance adjuster to approve surgery unless you force the issue. And there is a good chance the adjuster will not respond unless you are proactive. 

 

This is why I recommend filing a claim for surgical authorization if the claim adjuster has not responded to your email or phone call or approved the procedure within one week of your or your doctor’s request (if you want the operation). Show the insurer that you will protect your rights in court when necessary. 

 

Can I Get a Workers Comp Settlement Before Surgery? 

 

Yes. It is possible to settle your claim and accept a cash buyout of future medical benefits for your work injury

 

Can I Receive a Workers Comp Settlement After Surgery?

 

Yes. 

 

The parties in a workers comp case – you, the employer, and the insurer – can negotiate a settlement at any time as long as the Workers Compensation Commission approves it. 

 

Does Having Surgery Increase the Workers Comp Settlement Amount? 

 

The possibility that you may need an expensive surgery increases the value of your workers comp claim. But having the surgery doesn’t necessarily have the same impact.

 

Having surgery might increase your settlement if you need continuing medical care after the operation, never regain the ability to return to light duty or full duty work, or have surgical complications. Otherwise, having surgery may decrease how much you get through settlement. 

 

Insurance companies consider and try to project your future medical needs when negotiating a settlement. If the insurer pays for surgery before you try to resolve the case, your future medical needs will be lower in theory. And this will lower your case’s settlement value. 

 

Here is an example of how it works:

 

You are a truck driver who suffers an injury in a work-related motor vehicle crash or a nurse that needs surgery after a patient assault.

 

You choose a doctor from the offered panel of physicians, who then refers you to an orthopedic surgeon. The orthopedic specialist has examined you several times and reviewed the MRI, and recommends an operation. But the insurer refuses to pay for the surgery because an IME doctor saw you for fifteen minutes and says your condition pre-existed the workplace incident.

 

You are able to work light-duty without the surgery and are hesitant to have it.

 

You have two options in this scenario: (1) file a claim for authorization and payment of surgery, which you will likely win, or (2) try to settle.

 

This case would have more settlement value before you undergo surgery.

 

The Pros and Cons of Settling Before Surgery

 

Analyze the following factors when deciding whether to settle your claim or fight for surgery.

 

What are the Advantages of Settling My Workers Comp Case Before Surgery?

 

There are several advantages to negotiating a workers comp settlement before having surgery. These include:

 

  • You do not have to worry about the uncertainty of litigation if the insurer denies that the operation is reasonable, necessary, or related to the work injury. 

 

  • You can choose your surgeon. This is significant if you have a poor relationship with or lack trust in your authorized workers comp physician or want to see another doctor.  

 

  • You can decide when you have the surgery. This helps if you are uncertain about surgery or have a future date to undergo it and want to avoid risking wage loss benefits if you delay.  

 

 

  • You might receive more money. We discussed the impact of projected future medical expenses on settlement value earlier in this article. Settling before the operation allows you to include the surgical cost when negotiating a fair amount. 

 

  • Other health care coverage may pay for the surgery if you draft the settlement papers correctly, and the insurer has valid defenses to the claim. This allows you to net more money. 

 

  • You will not have to participate in weight loss/dieting programs or smoking cessation classes if you do not want to. This is relevant if the surgeon will not operate until you stop smoking or lose weight, and the insurance carrier suspends your weekly checks because you are not showing progress. 

 

What are the Disadvantages of Settling Before Surgery?

 

Settling your claim too early can have devastating consequences. Consider the following possibilities when deciding what is best for you:

 

  • You might have to pay for the surgery out of pocket. Private health insurance or other health care plans may refuse to cover the surgery if the settlement papers do not include protective terms or you did not take proper action before settling. 

 

  • You might have surgical complications that affect your ability to work or increase your medical expenses.

 

 

  • You might be settling before knowing your permanent restrictions from the work injury.

 

The Pros and Cons of Settling After Surgery

 

Now the article examines the advantages and disadvantages of settling your workers compensation claim after surgery. 

 

What are the Advantages of Accepting a Settlement After Having an Operation? 

 

There are many advantages to waiting to settle your claim until after surgery. These include:

 

  • You will not have to worry about how to pay for the surgery. 

 

 

  • The insurer is responsible for any surgical complications that require additional medical attention or cause disability. 

 

  • You might be eligible for additional wage loss benefits if you have not reached the 500-week cap on indemnity benefits and the applicable statute of limitations allows it. 

 

What are the Disadvantages of Settling After Surgery?

 

The disadvantages of waiting to settle your workers comp case until after surgery include:

 

  • You might receive less money. Workers comp is a pay-as-you-go system. The insurer will lower its valuation as it pays more benefits to you. 

 

  • You might have to continue treating with a physician you do not like.

 

  • The insurer will continue to have control over your postoperative care, which could result in delays in treatment and recovery. 

 

  • Your case’s value may decrease if the surgery is successful (good for your health but not for the settlement amount). The insurer could argue that you are now capable of working and earning at or near your pre-injury average weekly wage.   

 

What is the Average Workers Comp Settlement After Surgery?

 

In my experience, the average workers compensation settlement after surgery is $40,000.00 to $325,000.00 or more. 

 

The potential value of your case depends on many factors, including:

 

  • Whether the workers comp insurer or another health care plan paid for the surgery

 

 

  • The likelihood that you will require additional surgery, including a revision operation or hardware removal 

 

  • Whether you will require long-term pain management after surgery

 

  • Whether the employer requires resignation as a settlement term and, if so, whether you had health insurance through the employer or someone else 

 

  • Whether you are experiencing problems with other body parts because of overuse and overcompensation related to the work injury

 

  • Your ability to return to any employment after surgery

 

  • Potential future wage loss

 

  • The number of weeks of indemnity benefit paid to date

 

 

 

Who Pays If My Condition Worsens and I Need Surgery After a Workers Comp Settlement?

 

You or your health insurance plan, if you have one, might have to pay for a surgery that is needed after you settle your workers compensation claim. It depends on the settlement terms and how well you protected yourself.

 

If you negotiated an “open medical” settlement, then the insurer could be liable for the cost of surgery. You could submit the surgery bill to the insurer for payment or if you have already paid for the operation, reimbursement. You only need to file a change in condition claim seeking payment or reimbursement to reopen the case.  

 

If you accepted a “full and final” release of your worker comp claims, then it is unlikely that the insurer will have to pay for the surgical procedure. 

 

If the need for surgery results from a new work-related injury, you can file a new claim for benefits. You will have to prove a recent injury by accident arising from employment to recover benefits.  

 

If none of these situations apply, then you should try to use private health insurance to pay for surgery needed after the settlement. Including the proper language in the settlement papers can trigger your state’s anti-subrogation statute and ensure that other health coverage pays for ongoing care.

 

A Lawyer Who Can Help You Increase the Value of Your Workers Comp Settlement – Before or After Surgery

 

Insurance companies use data from thousands of claims and teams of adjusters and attorneys to limit your medical options and decrease your claim’s value. But you can overcome this – with help. 

 

Call me today for a free consultation: (804) 251-1620 or (757) 810-5614. See why past clients and fellow attorneys have voted me one of the best personal injury lawyers in the state. We can discuss your options under tort law if your physician recommends surgery for the work injury or if you want to settle your claim after having an operation. 

Corey Pollard
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