I recently received a question from a gentleman named Charlie who asks:
I filed chapter 13 about 2 years ago, now I got hurt on Job and am receiving W.C. In the process W.C. is to build a new house for me. How does chapter 13 come to play?
My husband, Jonathan Ginsberg, has been a bankruptcy lawyer in Atlanta for over 20 years. I asked him to respond to this question. Here is his response:
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When speaking to prospective clients, I often get the questions "what is my case worth?" and "when will my case settle? I cannot think of any situation where I would be able to answer this question truthfully before I would have an opportunity to dig into the file and read all of the medical records. I think that any lawyer who throws numbers and dates at you is not being straight with you because there are so many factors that influence the timing and settlement value of your case.
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I am often asked how I know when a case is ready to settle. There are many factors that go into this judgment call, one of the most important being the disability rating assigned to my client.
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I have been classified Catostrophic by GBWC and am totally disabled. Everyone concerned has no objections. My insurance Co. has said that they may want to settle. Medicare setaside has already benn set. What should I be looking for in a settlement. Is there an amount that I should be looking for . I am 55 and will not be able to work again. My claim is covered by the SITF. , but my Ins. Co. is in rehab. Thanks I look forward to your answers.
–James
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I was injured in a car accident in Dec. 2004 while on the job. Workers comp accepted responsibility and paid my medical and PT expenses. Extensive injuries included broken femur, broken (upper) arm, fractured liver (which required surgery for continued bleeding), broken ribs, punctured lung, etc. Spent 24 days in ICU. After several months recovery at home, Dr. declared me at 7% disability, and worker's comp paid several months worth of benefits based on that rating. Now it is 2 years later and while I am able to work, I still have little strength in my arm, and I walk with a limp (and occasionally my leg gives way and I nearly fall). Some days are pretty painful, although I manage to hold down a full-time job. One year ago, they asked if I wanted to settle (not naming a figure) and I declined. Nothing else has been mentioned. Can you give me a vague figure for settlement for these type injuries and also will my time run out for settlement?
Jodi Ginsberg replies: I look at a number of factors when creating a demand for settlement. There are two "big picture" concepts that apply:
1) the best time to settle is when there is maximum uncertainty in your case. Perhaps you are facing surgery, which would mean unknown medical costs and unknown lost wage benefits payable. Perhaps your doctor is proposing conservative treatment in the form of several months of physical therapy after which possible surgery. As your lawyer, I can make the argument that the insurance company's potential financial exposure might be XYZ dollars. If your doctor has released you back to work or if your doctor has already performed surgery and you are participaing in an uneventful rehabilitation, there is less uncertainty and less reason for the insurance company to value the case at a high number.
2) insurance companies look at their potential financial exposure when deciding how much to offer you in settlement. They don't care who you are or what you did. They are only concerned about money. If we can convince them that they may be on the hook for hundreds of thousands of dollars, they will offer substantially more than they would if they calculate their exposure at a few thousand dollars.
Here, my biggest concern has to do with the age of your case. First, you may have a statute of limitations problem. Second, you would have to link your current problems back to an accident that happened two years ago, despite your return to work. The insurance company will argue that any current problems may have to do with your post-December, 2004 work (or perhaps non-work) activity.
Returning to work, as you may have guessed, can create issues with settling a case.
They have already paid you PPD (permanent partial disability) so you would need another doctor to give you a higher PPD rating that what you already have.
I think that your case has some settlement value, but perhaps not as much as it would have had in 2005. If you want to call me to discuss, please feel free to do so.
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North Carolina trial lawyer Chris Nichols has written a very useful description of how the Medicare Set Aside rules work in workers' compensation cases. He also notes that federal law also permits Medicare to pursue Set Asides in liability cases (although Medicare has not yet done this).
Chris describes the concept of a Set Aside as follows:
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I am frequently called upon by my clients to explain the difference between settling their workers' comp cases and agreeing to a "no-liability" stipulation.
If the insurance company has paid benefits, paid for medical care and accepted the on-the-job injury claim as compensible, then the only type of settlement permitted is a standard settlement.
