Do you have a self-administered Medicare Set-Aside fund?

February 27, 2015 by · Comments Off
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If you are an injured worker who is on Medicare, filed for Social Security or otherwise eligible for Medicare, when you settle your workers’ compensation claim, you and the insurance carrier have to get approval from Medicare. This is often a lengthy process and often times the entity overseeing the settlement for Medicare (CMS) will require a self-administered Medicare Set-Aside fund. This means that a portion of the injured workers’ settlement money must be used for medical care related to the work injury and once those funds have been exhausted, Medicare can pick up the rest of the bills. You will get the funds and place the money in an interest bearing account to use for your medical care that Medicare would have paid for.Warning sign

Injured workers’ who have self-administered Medicare Set-Aside fund need to keep excellent records in order to ensure that they are in compliance with the self-administered Medicare Set-Aside fund. CMS has now come up with a Tool-kit for injured workers explaining this process and breaking down what records and expenses injured workers need too keep track of. This is a great tool for anyone who has self-administered Medicare Set-Aside fund stemming from a workers’ compensation injury. To view the Took-kit click on this link.

If you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

~Author
Michele Lewane, Esq.

Frequently Asked Questions about Structured Settlements

February 20, 2015 by · Comments Off
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Generally, I am not a fan of structured settlements since a client’s funds are restricted and if and when circumstances change, the annuity does not change with the changing needs. In workers compensation cases, unlike personal injury claims, you can’t sell your structured settlement. It is part of an Order where the injured worker is the beneficiary but NOT the owner of the annuity. With that being said, many times a partial structured settlement (a lump sum of cash and an annuity giving monthly income for life), can be something worthwhile for my clients to consider.

Why should one consider a Structured Settlement?money roll

 Tax-Free Benefits. All payments are tax-free. The IRS code allows for the tax-free accrual of interest on the sum of money used to fund your periodic payment. As a result, you receive more money than investing it yourself.

 Future Guaranteed Payments. Unlike a “cash-only” settlement, a Structured Settlement will provide guaranteed benefits at specified payment dates to assure you of financial security. For example, you can receive monthly payments for life or for a specified period of years along with future lump sums of cash at designated intervals.

 No worries about having to manage a large lump sum of cash on your own

 Flexibility to Meet Individual Needs. A Structured Settlement can be designed to meet your needs. You may wish to provide for future education expenses, supplement a retirement fund, or simply provide for general monthly expenses. The plan can be tailor-made to meet your objectives.

Why is a Structured Settlement a better investment option than a “cash-only” settlement?

 No Tax Liability on Earnings. If you accept a “cash-only” settlement and invest it yourself you would most likely incur tax liabilities on the income produced by your investments. Private investment income is simply not eligible for the tax-free benefits available under the I.R.S. Code.

 No Fees or Expenses. Also, in contrast to private investments, there are no brokerage fees or expenses when selecting a Structured Settlement.

 Low Risk. In addition, Structured Settlements are substantially risk free. Investments in stock and other equities can be speculative, carrying with them the risk of loss. Even less speculative investments such as bonds and certificates of deposit, are subject to the risk of interest rates going up and down.

If you are settling your workers’ compensation case or if you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

Michele Lewane, Esq.

Why should I consider a Structured Settlement?

February 13, 2015 by · Comments Off
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A structured settlement gives an injured worker the unique ability to design payments tailored for his or her long-term needs. Structured settlement payments can accommodate family needs, such as a child’s education or an important role in helping to settle workers’ compensation claims. In 1997, Congress amended the federal tax code to encourage the use of structured settlements in workers’ compensation claims. It provides an injured worker with steady tax-free income and financial security.

The Issue: The workers’ compensation system is a limited solution
Typically in Virginia, an injured worker gets weekly benefit payments in addition to medical treatment. But some medical care can be denied even if recommended by the injured worker’s doctor. Also, when the injured person dies, all benefits usually end with nothing payable to family members.

The Solution: Tailored tax-free income from a structured settlement
With a flexible and secure payment stream, a structured settlement offers several advantages including the ability to diversify a settlement with cash and tax-free income. With multiple payment options, your settlement design can address future income and medical needs more effectively than is possible with just a single cash payment.

Resolving permanency and death claims
When workers’ compensation cases involve death or permanent disability, the security of a structured settlement can bring significant long-term financial advantages. For both situations, structured payments can be guaranteed for a worker’s life and even a spouse’s life. That can be a major benefit over other payment options which stop immediately upon a worker’s death.dollar signs

Are you a Medicare beneficiary?
When settling your workers’ compensation claim, medical treatment may continue to be a priority. If you are a Medicare beneficiary, the Centers for Medicare and Medicaid Services (CMS) will review your settlement to be sure Medicare covered expenses are appropriately included in your settlement. This is often done through a Medicare Set Aside (MSA) account.

This allocation is important for two reasons. First, it is a necessary step toward compliance with the federal law that protects the Medicare system for beneficiaries like you. Second, a CMS review and approval of the MSA protects you if the amount of money that’s been allocated for those expenses falls short due to a change in your medical condition. In this instance, Medicare would step in and pay for those accident-related expenses covered by Medicare, bringing you peace of mind.

Funding your MSA with a structured settlement is permitted by CMS and offers security that you will always have access to medical care.

When making the decision to settle your workers’ compensation claim, it’s important to do so in a way that provides future income that will address your needs and goals without sacrificing financial security. A structured settlement can be an option.

If you are settling your workers’ compensation case or if you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

Michele Lewane, Esq.

What is a Structured Settlement?

February 6, 2015 by · Comments Off
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In simple terms, a structured settlement is a financial tool for injured people when you settle your workers compensation claim. You choose a structured settlement instead of taking one lump-sum payment .Regular payments are then made over a specified period of time to match your future needs and goals. Financial advantages include:

  • Guaranteed paymentsmoney bag
  • Tax free
  • 100% lifetime exclusion from income, dividend and capital gains taxes
  • Customized to meet both immediate and future financial obligations
  • No risk of losing money on market-vulnerable investments or from poor financial management

dollar signs

You may want to consider structured settlements if your claim involves:

  • Long-term medical needs
  • Temporary or permanent disabilities
  • Minors or the mentally incompetent
  • Severe injuries that result in brain damage or shortened life expectancy
  • Surviving spouse and/or dependents in a death case

 

Structured settlements may also help an injured workers and their family prepare for the future by protecting their funds and (depending on how the policy is dispersed) may help ensure that the injured worker is still eligible for other state and federal benefits (Medicare, Medicaid or Social Security).  It is best to consult an experienced workers’ compensation attorney if you are considering settling your case as this process can be complicated and you will want an attorney to make sure all of your funds are properly allocated.

 

If you are settling your workers’ compensation case or if you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

 

Michele Lewane, Esq.

How to calculate your workers’ compensation lost wage benefits

January 30, 2015 by · Comments Off
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Under the Virginia Workers’ Compensation Act, employees who are injured on the job or contract work-related diseases may be eligible for certain benefits, including compensation for lost wages.

Your overall workers’ compensation benefits depend on the details of your injury or disease as well as the wages earned at the time of the injury. I have put together some instructions to help injured workers who may be missing time from work because of their injured to calculate their benefits and make sure they are receiving the proper compensation (subject to state minimum and maximums).
1. Collect your pay stubs for the 52 weeks prior to your injury (this includes over time, per diem pay, bonuses and commission). Calculate your total earnings (not you’re your take home pay) over that period and divide the figure by 52. The resulting amount is the average weekly wage as defined under the Virginia Workers’ Compensation Act. If you do not yet have 52 weeks under employment, a figure will be derived using the earnings of similarly employed persons at your place of work or in the local area.Calculator and paperwork
2. Multiply your average weekly wage by 66.66 percent (or 2/3rds for easy estimation). The resulting figure is your initial wage compensation amount or compensation rate, which is subject to certain adjustments as described below. This is the rate that workers’ compensation lost wages will be paid and the rate that all future calculations will be subject to.
3. Visit the Virginia Workers’ Compensation Commission website and take a look at the Compensation Benefits Chart. This chart lists the minimum and maximum wage compensation amounts for each calendar year as set forth by the Commission. If your initial wage compensation amount falls inside the range listed, you will receive the calculated amount in weekly benefits (or TTD), for as long as the Commission allows if the doctor has you out of work. If your initial wage compensation amount falls outside this range, it will be adjusted accordingly based on the minimum or maximum rates.

If you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

~Author
Michele Lewane, Esq.

BEWARE of PHONY TIME LIMITS

January 23, 2015 by · Comments Off
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“Help, my Adjuster called and offered me a settlement and she said I have to respond to her by tomorrow or she’ll close my case!”

I get calls like this from injured workers all the time. The injured worker is panicked because they don’t know if it is a fair settlement offer (most of the time it’s not!), they don’t know what it means if the adjuster closes their case and now, they have a very limited amount of time to get some information and make a very big decision. Insurance Adjusters love to use this ploy to pressure folks into taking a low ball offer by using fear, panic and phony time limits to pressure to add to the anxiety and burden that injured workers and their families are already experiencing.

Here is what I tell folks in this situation:

1) Settlement is a mutual agreement - The Adjuster cannot force you to settle if you don’t want to and you cannot force the insurance company to settle if they do not want to.
woman on clock2) No time limit for settlement – Because settlement is a mutual agreement that can take time, compromise and negotiation, there is no set time limit for this process. Workers’ Compensation claims can settle at various stages of the claim process depending on an injured workers’ particular situation. There are several other time limits that govern a workers’ compensation claim (reporting the injury, filing the claim, requesting additional body parts, requesting lost wages or permanent partial disability), however reaching a settlement agreement is not one of them.
3) The Adjuster cannot “close” your case – If you have an Award Order protecting your benefits, then the Adjuster may close their internal file but this does not mean that your case is closed or that you are no longer entitled to benefits because the Award Order states that your claim is open for as long as necessary (the medical portion). Make sure you understand what an Award Order is and if you have one so you don’t fall victim to this empty threat.
4) Workers’ Compensation is a slow process – When injured workers tell me the Adjuster needs an answer about settlement “tomorrow” it makes me see red flags! Workers’ Compensation is a slow process and adjusters typically move at their own pace so when I hear about this 24 hour time limits I always caution people: What is the rush? Is there a legitimate reason this decision has to be made so quickly or is it just the insurance company trying to save some money by pressuring an injured worker into a hasty settlement?

If you would like more information on the Virginia Workers’ Compensation system, legitimate workers’ compensation time limitations or the settlement process, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

~Author
Michele Lewane, Esq.

Top 6 reasons injured workers should not go to court on their own

January 16, 2015 by · Comments Off
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I hear a lot of injured workers say that they are willing to “roll the dice” the first time around with the Virginia Workers’ Compensation Commission and represent themselves. They are afraid an attorney will cost them too much and think because they “should” be entitled to benefits that they will of course get them. I generally caution injured workers against this type of thinking because there are several formalities that people who don’t practice workers compensation law can easily fall into. I’ve listed a few of them below to illustrate what I’m talking about:

1) Mistakes – If you make a mistake (miss a deadline, do not get the medical record to prove your case, fail to file documentation or fail to call an important witness) there is no “undo” button. The Commissioner will only be able to review and consider evidence in the case that was properly documented, disclosed and filed with the court within their time limitations. Filing documents a day after the hearing is too late (in most cases). On appeal, there is no new evidence that can be submitted.

2) Language – The legal and medical terminology can be very confusing and it is very hard to successfully argue a case unless you are well versed in the medical terms as well as the medical and legal standards the Commissioner will be reviewing to make his or her determination. Medical causation is very important to your case.

3) Interrogatories – This is the formal written question and answer process called “discovery” that both injured workers and the insurance companies take part in prior to going to court. Do you know what questions to answer? Do you know what questions to ask? Do you know that when you are sent interrogatories you only have 21 days to respond to them?testafying in court

4) Depositions – This is the formal verbal question and answer session that is also part of the discovery process that takes place prior to going to court. Do you know what questions to answer? Do you know what question to object to and why? Do you know what questions to ask?

5) Deadlines – If you miss deadline you could have important information missing from your case file with the Commission and the Commissioner will not be able to consider it when reviewing your file; or even worse, your claim could be dismissed altogether!

6) Appeals – If you go to court and the Commission rules against you, you will have the opportunity to file an appeal to the decision; however it will be very difficult, if not impossible to find an attorney to take over the claim at this point. Hiring an attorney today does not undo any mistakes you made yesterday. If you had an attorney in your corner at the first hearing, chances are much better that you could have an attorney represent you on an appeal because he or she already has an extensive knowledge of your case. I generally do not represent people on appeal when I did not represent them at the lower level because I need to have my evidence, facts and exhibits put together at the hearing level so I have a basis for the appeal. When someone has gone to a hearing on their own without an attorney, most of the time, they are losing because they did get certain facts in that are necessary to win and those omitted facts can’t be added at the appeal level.

These are just some of the most common reasons that I tell injured workers if they are going to court, they, at the very least, need to consult an experienced workers’ compensation attorney to make sure all of these issues are addressed.

If you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

~Author
Michele Lewane, Esq.

What are the Workers’ Compensation limits on wages?

January 9, 2015 by · Comments Off
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Workers’ compensation pays Temporary Total Disability or TTD benefits to injured workers when the doctor has placed them on an out of work status, however these benefits are capped. Benefits are paid to injured workers at a compensation rate that is 2./3rds of their Average Weekly Wage; except for when the injured workers’ wages fall below the minimum compensation rate or above the maximum compensation rate; in these situations the carrier will pay the injured worker at the rate the Commission has set forth. I’ve listed the minimum and maximum compensation rates for the last 10 years below.

Year             Minimum Rate             Maximum Rate

2014             $241.75                                $967.00

2013             $238.75                               $955.00

2012             $233.75.                              $935.00

2011              $226.25                               $905.00

2010             $221.25                                $885.00dollar signs

2009           $223.75                                $895.00

2008           $210.25                                 $841.00dollar signs

2007            $204.00                              $816.00

2006            $193.25                                $773.00

2005           $184.00                                $736.00

2004           $176.50                                 $706.00

To see the entire chart, follow this link.

This means that if you make more than $1500 a week, you will only get $967.00 a money rollweek based on the maximum pay rate. For example, if you make $2100 a week, 2/3rds would be $1400 a week, but you are capped and only receive $967.00 per week which is less than 50%! On the opposite end, if you make $300 a week, 2/3rds of $200 (the “comp rate”) a week, but you would actually get $241.75 a week based on the minimum pay rate. Another little catch is that if you only make $200 a week (less than the mandatory minimum), you would not get a reduction at all but would get $200 a week in temporary total disability benefits.

If you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

~Author
Michele Lewane, Esq.

I got hurt at work and my employer fired me! Can they do that?

January 2, 2015 by · Comments Off
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If you were terminated from your place of employment after a work injury, here is what you need to know:

1) Retaliation is not a legitimate reason for termination - If you were fired as retaliation for filing a workers’ compensation claim or recordable accident, you may be able to file suit against the employer (Section 65.2-308 of the Code of Virginia). You may recover actual damages and attorney’s fees in this type of suit, however this is separate from your workers’ compensation claim (workers’ compensation only addresses the needs of the injured workers lost wages and medical benefits, it DOES NOT regulate employers or their actions). You may need to contact an attorney who handles labor and employment matters. If you feel you need a labor and employment attorney, please contact my office and my staff can put you in touch with an attorney who can assist with this.
2) Positive Drug Test – If you are fired because you tested positive for drugs or alcohol at the time of the accident, you need to contact an experienced workers compensation attorney immediately. The employer may be able to terminate you for a violation of their drug policy, but you still may be able to receive workers’ compensation if the drugs or alcohol did not “cause” the accident. The attorney may be able to fight this if the alcohol or drug levels recorded were not the “cause” of the accident.
3) Fired while the doctor has you out of work – If you are terminated from your employment while the doctor has you on an out of work status, workers’ compensation can still pay you while the doctor says you are unable to work. Sadly workers’ compensation does not offer job protection but, depending on your situation, you may be able to continue receiving compensation if the doctor releases you to some form of light duty work.read-carefully
4) Fired after returning to work on restrictions – If you are fired after you return to work after an accident and are placed on light duty, you may lose your workers’ compensation benefits if the employer can show you were fired for “cause” (misconduct, absenteeism, insubordination, tardiness, fighting and so on). The employer may even look for a reason to terminate you so if you are back to work light duty, you need to be on your best behavior! The flip side is, if you are fired due to things beyond your control or “without cause” (the employer could not accommodate your restrictions any longer, the employer had to fill you position or could no longer hold your job, the company went out of business or had to downsize), you may be entitled to continue receiving lost wage benefits – depending on your situation you may be required to do job searching in order to receive this compensation (this is complicated and the Commission has STRICT requirements that injured workers have to meet. If you are unsure of your status or eligibility to collect these benefits, contact an experienced workers’ compensation attorney to get some clarity on whether or not you need to do the job searching in order to protect your lost wage benefits).

If you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

~Author
Michele Lewane, Esq.

The Great Compromise – the idea behind the Workers’ Compensation system

December 26, 2014 by · Comments Off
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The workers’ compensation system is often referred to as “the great compromise” in which workers give up their rights to claim damages in a civil court (negligence and/or pain and suffering), and employers/insurance companies agree to pay benefits to workers for injuries occurring during the course and scope of their employment on a “no fault” basis and allow injured workers to receive a portion of their lost wages with out the long litigation process of traditional civil suits. However, this compromise is always being threatened by insurance lobbying efforts seeking to destroy the compromise in favor of preserving their bottom line.handshake

In theory, this is a great compromise for injured workers because the idea is to expedite the process and get injured workers’ their benefits much more quickly than if they had to file a “lawsuit” in civil court and prove the accident was someone else’s fault. The downfall and the biggest hurdle I see facing injured workers is that the insurance carriers have limitless funds and time to fight this “expedited” system, dragging out and significantly delaying what should be a shortened approval process, in hopes that injured workers’ will give up their benefits, either out of anger, frustration or a combination of the two.

My office is here to help injured workers understand the process and be informed about their rights and responsibilities as an injured worker. I urge every injured worker out there to get educated about the system and protect themselves from the ever growing reach of the insurance companies.

If you would like more information on the Virginia Workers’ Compensation system, order my book, “The Ultimate Guide to Workers’ Compensation in Virginia” by clicking this link, or call our office today (804) 755-7755.

~Author
Michele Lewane, Esq.

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