Typically, waiting until after surgery to negotiate will increase the value of a workers comp settlement. The Board will use the New York workers comp 2018 Guidelines for Determining Permanent Impairment to value injuries in a case. For neck and back injuries, they will use the 2012 Impairment Guidelines. These Guidelines set the value of a case based on the severity of a worker’s injury.
Workers Comp Settlement After Knee Replacement Surgery
A knee replacement surgery is a very serious procedure. Oftentimes, an injured worker who undergoes an arthroscopic knee surgery will need a replacement later in life. This is particularly the case when dealing with workers who have jobs that involve frequent kneeling or squatting.
The Guidelines specify that doctors should value knee replacement surgery at a minimum of 35 percent schedule loss of use. Doctors may give additional value for knee replacement surgery depending on surgical outcome. Outcome depends on range of motion, alignment, and stability. A knee replacement surgery with a bad outcome can receive up to 80 percent schedule loss of use. The same surgery with a good outcome will usually land in the 35 percent schedule loss of use range. Insurance carrier doctors will usually find 35 percent, the minimum. These percentages determine workers comp settlement value after surgery.
Importantly, loss of use equals a lump sum money award. The higher the schedule loss of use value, the more money an injured worker is eligible to receive. If an injured worker feels that they will need a knee replacement in the near future, it is sometimes in their interest to wait for surgery before entering into a workers comp settlement agreement.
Settlement for Spine Injuries After Surgery
Similar to knee replacement surgery, a spine operation can greatly impact the value of a workers comp settlement. When doctors and the Board value a spine injury case, they look to whether surgery was performed. The 2012 Impairment Guidelines provide tables doctors will use to determine permanent spine injury. Symptoms and other findings are given points. The total points, when added together, will equal a severity ranking. If an injured worker undergoes spine surgery, such as a fusion, it will most likely result in a higher severity ranking.
When dealing with a spine injury, the Board and doctors will consider surgery, nerve root compression, imaging studies, sensory loss, and range of motion. Severity ranking factors into an injured worker’s Loss of Wage Earning Capacity (LWEC). The higher the LWEC, the more money to the worker.
In sum, if you are an injured worker considering surgery, it is almost always in your interest to have the surgery before settling your case. But this should always be discussed with a workers comp attorney familiar with the facts of your specific case. Every case is different and sometimes closing a case before surgery is in fact the right call.