How Does an Attorney Determine the Amount of Damages?

When it comes to determining how much is satisfactory for damages for workers’ compensation cases, many factors are taken into account. Most attorneys who specialize in workers’ compensation have specific formulas that calculate a settlement.

Therefore, how does a workers’ compensation attorney determine the appropriate amount of damages in a workers’ compensation case?

We have asked attorney, Alaina Sullivan, and here is what she had to say:

What Is Workers’ Compensation?

Workers’ compensation essentially is a form of insurance for employers to help cover employees who are injured while on the job. Employers who have employees of a certain number are required to carry this policy, and all employees under them are entitled to file a claim for work-related injuries sustained that prevent them performing their normal work duties.

In exchange for the ability to receive these benefits, however, employees waive their rights to pursue a personal injury claim against the employer for their injuries. Workers’ compensation will cover medical expenses, as well as lost wages for the employee.

Medical Records and Bills

Nothing can be calculated without the numbers, so the first step that needs to be taken is to get all copies of the accident reports made, any medical records regarding the injury and witness statements for people who witnessed the incident happen.

The attorney will need the full medical records, so it may be best to wait until the employee has reached maximum medical improvement (MMI) the stage where the recovery has essentially been made, and all medical bills have been received.

The medical portion of the evidence is important since medical bills can make up for the majority of the benefits received so the full balance on all bills is needed for the employee to be paid for these costs.

How Does an Attorney Determine the Amount of Damages?

Bodily Impairment and Lost Wages

Additionally, part of the settlement is calculated by a percentage rating for what is known as “bodily impairment.” If the percentage is 100, this means the employee is fully-impaired. If the employee has a zero percent, he or she is completely healed.

In the medical records, it will be important that the employee have a physician’s description of what the percentage rating is in the final medical report. When calculating lost wages for the injured employee, the workers’ compensation attorney will use this bodily impairment percentage.

The workers’ compensation wage will be multiplied by the time to heal, and the resulting figure will become part of the settlement received.

Future Medical Expenses

In addition, the final medical report will also include the future medical costs and expenses that the treating physician anticipates the employee needing. These costs will need to be justified, but if they are supported by medical evidence in the report, they will also become part of the settlement calculation.

Waiting Period

Each state has its own set of laws when it comes to workers’ compensation, and in some states, the employee must meet a waiting period. For instance, in the State of New York, an employee will not be considered temporarily disabled until that employee has been absent from his or her job because of the work-related injury for at least seven days.

This does not mean payment is only from the date of the end of the waiting period, but the payment can still be retroactive to the date of injury. The waiting period means he or she cannot file a claim before then. Consult the appropriate state law to see if a waiting period applies.

Temporary Disability Payments

The settlement amount may also include temporary disability payments, and these are calculated similarly to permanent disability payments. Depending on the state’s worker’s compensation laws, the attorney will take a certain percentage and multiply it by what the employee’s weekly wage was at the time of injury.

This wage will normally be determined by taking an average of the most recent six weeks of pay stubs. Every state also has a maximum allowable benefit, so that weekly amount should not be it. The percentage used for permanent disability is often the same for temporary disability payments.

Permanent Disability

If the employee’s injuries were particularly severe, the employer may also be required to make payments for either permanent or semi-permanent disability. A workers’ compensation will be able to assist in this calculation or determination, as well.

Temporary disability is not subject to taxes, and neither is permanent disability. Most states use the formula of taking two-thirds of what the employee’s weekly wage was to calculate what the person’s permanent disability payment will be.

Every state has a maximum weekly average wage, however, so the amount cannot be more than that set number.

Attorney’s Fees and Legal Costs

Lastly, if the person did hire an attorney to help him or her during the worker’s compensation process, legal costs and attorney’s fees can be added to the settlement amount.

Contact an Attorney Today

If you are in the process of pursuing workers’ compensation and have questions about how damages are calculated, a workers’ compensation attorney can help review your case and discuss your options.

An attorney can listen to the facts of the case and can best advise you on how to proceed. Contact an attorney experienced in workers’ compensation law to schedule a consultation today.

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