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.
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.
A health care provider can perform surgery if they are:
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:
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.
Orthopedic surgeons use different procedures to treat acute trauma injuries and degenerative conditions. These methods include:
The Orthopaedic Clinic, Carolinas Center for Surgery, Cedars Sinai Marina Del Rey Hospital, and past board certification applications indicate these are the most common orthopedic operations.
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:
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.
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:
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:
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:
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.
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.
Yes. It is possible to settle your claim and accept a cash buyout of future medical benefits for your work injury.
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.
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.
Analyze the following factors when deciding whether to settle your claim or fight for surgery.
There are several advantages to negotiating a workers comp settlement before having surgery. These include:
Settling your claim too early can have devastating consequences. Consider the following possibilities when deciding what is best for you:
Now the article examines the advantages and disadvantages of settling your workers compensation claim after surgery.
There are many advantages to waiting to settle your claim until after surgery. These include:
The disadvantages of waiting to settle your workers comp case until after surgery include:
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:
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.
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.