Sometimes an IME is scheduled by the carrier prior to the filing of a Claim Petition, in order to discourage the injured worker from retaining an attorney. Thereafter, the carrier will often offer the claimant a “voluntary†settlement, based upon the degree of disability estimated by respondent’s expert. If the independent medical expert estimates a disability of 5% partial permanent disability as a result of the accident, the carrier will often offer the claimant a settlement representing a 5% partial total disability. Unfortunately, unwitting claimants may believe that they have forfeited their rights to pursue the claim further by accepting this settlement. However, an injured workers’ right to be fairly compensated for his permanent injury cannot be unilaterally limited by the carrier. Rather, a final settlement can only be enforced when it is given the stamp of approval of a Judge of Compensation. Most claims are worth substantially more than the estimate of the carrier’s medical expert. Accordingly, a carrier’s voluntary tender of a percentage of permanent disability benefits should be considered only a downpayment on the ultimate settlement award.
After a Claim Petition has been filed, and the petitioner attends permanency examinations with both the carrier’s medical expert, and the medical expert recommended by his attorney, the parties are ready to begin settlement negotiations. As indicated previously, most claims for partial permanent disability benefits settle somewhere between the estimates provided by the competing medical experts. The value of the claim will depend on several factors:
- The amount of lost time from work.
- The objective medical testing.
- The nature and amount of treatment provided.
- The limitations caused by the injury.
The Court will set the permanent disability award based upon the degree to which the injury has limited the petitioner’s ability to work and engage in his usual activities. Even after a settlement has been reached for partial permanent disability, in most cases, the claim may be “reopened†within two years of the petitioner receiving his last check for workers’ compensation benefits.
Attorneys’ Fees
In order to obtain fair compensation for the injuries sustained in an accident, injured workers’ should retain an attorney who has experience in the Division of Workers’ Compensation. It is illegal for a workers’ compensation attorney to require a fee to be paid in advance by a client. Rather, the attorneys’ fees are set by the Judge of Compensation, to be paid out of the proceeds of a settlement or judgment. The Judge may set the attorneys’ fee at a maximum of 20% of the award, out of which the insurance carrier may be ordered to pay more than half of the petitioner’s attorneys’ fees.
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