Impairment Rating. Workers' compensation cash benefits ( medical benefits) are geared to a worker's return to work. In order for any cash settlement to be available, there must be an "impairment," which is a concept defined by the American Medical Association. If there is an impairment, a percentage impairment rating is assigned by a doctor, either your doctor or, more likely, by a doctor who does impairment evaluations as part of his practice.
Impairment Amount. A modest of impairment of 1% - 5% will trigger an analysis of wage loss. Wage loss is calculated based upon the number of dollars per hour lost between what the worker earns or is capable of earning after reaching maximum medical improvement and what the worker was earning during the four pay periods prior to injury.
.Wage Loss. This can add up to 20% if the actual wage loss is more than $2.00 per hour.
Age and Education. These are factors included for older workers or workers who have completed less than 12 years of education and do not have a GED (39-71-703, MCA).
Wage loss, impairment percentage, physical restrictions (up to 5%), age, and education factors are combined in determining an "indemnity" cash settlement for an injured worker who has an impairment which is established by objective medical findings and is not based solely on pain, 39-71-703(1)(b), MCA.
Temporary Total Disability (TTD). These are payments are made during the period that the worker is taken off work by medical orders in order to undergo treatment and recuperation from an injury. This is two-thirds of the wages received at the time of injury. Although this two-thirds fraction is a substantial reduction from wages earned at the time of injury, they are non-taxable.
These benefits are paid until the treating physician releases the worker to the same, alternative, or modified position with the same employer at an equivalent or higher wage, 39-71-701(4), MCA.
Permanent Total Disability (PTD). In catastrophic injury cases where the worker cannot return to any work, permanent total disability is paid. Frequently social security disability cash benefits are payable at the same time. Both programs are not required to pay the full amount of benefits when the other program is participating. There is an offset provided for by law in each case. In Montana workers' compensation, the offset is 50% of the benefit if social security is paying the full amount of its benefit. A different formula applies if the Montana workers' compensation insurer is paying 100% of its benefit and social security disability kicks in later on.
When a partial disability case settles, the cash benefits are defined in amount and are usually paid in a lump sum. Such a settlement cannot normally be reopened. One possible basis to request reopening it later on is if a mistake was made in determining what the medical condition or conditions actually were at the time of injury and during the recuperation process. See 28-2-407, MCA. The Montana Supreme Court has raised a high bar against reopening cases for mistakes, and such mistakes are usually only based upon medical malpractice by the medical providers providing treatment prior to settlement.
Medical Benefits. In recent years, it has been standard practice for insurers to consider the settlement of medical benefits. Workers' compensation claims which have historically provided lifelong medical benefits are not the usual type of insurance benefit, as insurance generally contemplates a claim, a claim of payment and claim closure. Claim closure does not occur when medical benefits remain open, and workers' compensation insurance companies have been moving in the direction of offering medical closure in the form of an additional cash payment. In some instances, this is an attractive offer.
New Restrictions. Closure of medical benefits may accelerate with changes in the Workers' Compensation Act passed by the 2011 Montana Legislature, which imposed a five-year limitation on medical benefits. Any person injured after July 1, 2011 will have to either use all benefits during those five years or end them.
Any injured person who can pursue workers' compensation benefits should have legal representation. Every issue discussed here can be manipulated by insurers and no amount of discussion in this blog can adequately protect a person who is trying to make settlements in a serious injury case, or even where the injury is modest.
For information about any aspect of settlements in Montana workers' compensation cases, call Howard Toole Law Offices at (406) 728-4682 or check out our website www.howardtoolelaw.net.
