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Reaching a worker’s compensation settlement after returning to work is common. This is especially true if you can work with the injury but will still require ongoing care.1
In these cases, you and your workers’ compensation lawyer can still negotiate a settlement with the employer’s insurance carrier, even though you are back on the job. These negotiations can take weeks or even months.
The settlement amount should reflect the compensation owed for unpaid benefits and for future medical treatment.
What does worker’s compensation cover?
After a workplace injury, you can recover workers’ compensation to cover your wages that were lost because the job injury and its impairments kept you away from work completely.
These payments are often known as total disability benefits. They are often paid regularly, when you would normally have received a paycheck. In many states, they are equivalent to two-thirds (2/3rds) of your pre-injury weekly wages, up to a certain limit.2
Your medical expenses are generally covered by the employer or the employer’s workers’ compensation insurer. However, in some cases, you will pay some medical expenses like co-payments.
What does the settlement include?
A workers’ compensation settlement aims to cover all of the following expenses:
- outstanding medical bills,
- attorneys’ fees,
- future disability payments, and
- future medical care.
Once reached, the settlement can be paid in either a:
- lump sum settlement, or
- structured arrangement, with payouts spread over a period of time.
Lump sum settlements
A lump sum settlement, also known as a compromise and release agreement, refers to the resolution of a workers’ compensation claim where you relinquish all rights to receive future benefits in exchange for a one-time payment.
Lump sum settlements can be advantageous if you have reached your maximum medical improvement (MMI), which means you have made a full recovery or have reached the maximum level of recovery possible. In such cases, the lump sum payment is typically determined based on the extent of your total permanent disability.
Furthermore, a lump sum settlement makes sense if your injury results in a specific loss, such as permanent scarring, disfigurement, or the loss of a limb, leading to impaired use of a body part. You can still receive compensation for specific loss injuries even if you return to work.
In certain instances, if you are already receiving regular payments for your workers’ compensation benefits, you may opt for a lump sum payment. This is referred to as “commutation of compensation.” By choosing this approach, you retain your other benefits, such as ongoing medical treatment, without forfeiting them.3
Structured settlements
Unlike a lump sum settlement, structured settlements are where you receive set amounts of money over specific intervals (such as monthly, annually, etc.). Opting for a structured settlement makes sense:
- to avoid potential tax consequences associated with a lump sum settlement or
- if you prefer to extend the payments out to meet future financial obligations.4
Do I have to return to work before getting a workers’ comp settlement?
Not necessarily. Many workers’ compensation claims get settled before you return to the job. However, if the doctor clears you to return to work, then you will usually have to go back to work in order to continue receiving workers’ compensation.
In some cases, though, the workers’ comp claim is still open with no settlement having been reached. This can happen if you:
- paid medical bills out of your own pocket for the personal injury, like a co-pay or deductible,
- are owed attorneys’ fees,
- are likely to continue to need medical care, or
- suffered a permanent partial disability.
Will I keep receiving benefits if I go back to work?
Potentially, yes. If your treating physician clears you for light-duty work or puts restrictions on your job duties, you can continue to receive workers’ comp benefits if the light-duty work pays less.
This happens most often when you reach maximum medical improvement (MMI) but are not fully healed. If you have a permanent disability that keeps you from working your old job, you may continue to receive temporary total disability benefits even after returning to work. Employers may have to
- make reasonable accommodations if you return to the job with work restrictions, or
- find you a new job that you can perform.
Light duty often involves switching to a desk job from a factory job where you can sit rather than stand most of the day. Light duty can also include working fewer hours than you did prior to the injury.5
Can my employer retaliate against me for the open claim?
No, retaliating against you for filing a workers’ compensation claim is unlawful. Based on the nature of the retaliation, you can generally sue your employer for:
- wrongful termination,
- back wages,
- job reinstatement, and
- increased compensation.
You also may be entitled to a penalty or increased workers’ compensation benefits.6
If you return to your job while your workers’ compensation case is still pending, you should not experience any ill-will from your employer. The employer is not involved in the negotiation of the claim – only you and the workers’ compensation insurance company are involved.
However, the employer may voice frustration over having to pay higher insurance premiums because of the injury. If the employer does decide to take action on these frustrations and discriminates against you, it can amount to unlawful retaliation.
How do I get worker’s compensation?
The steps for getting workers’ comp include:
- You notifying your employer during the required time frame.
- Your employer notifying the insurance company.
- The insurance company investigating your claim.
Ultimately, the workers’ comp insurer will either:
- Take more time to investigate the claim, which may include you consulting with a doctor or questioning you under oath in a deposition;
- Deny your claim, which you can then appeal;
- Approve your claim and pay you the benefits you are entitled to.
If your workers’ comp claim is denied, it can be appealed to the state appeals board and then potentially to the local district court and ultimately the state supreme court.
There are strict time frames and procedures to follow, however, so make sure you have an experienced workers’ comp attorney handling the process. Appeals may also be resolved through mediation rather than litigation.
How soon should I see a doctor after my injury?
As soon as possible. The longer you wait, the more suspicious the workers’ comp insurer will be. Or the insurer may claim that you waiting made your injury worse.
Be sure to keep all the medical records, including for:
- hospital stays
- clinical visits
- medications
- physical therapy
- medical equipment
Also take videos/photos of your injuries, and compile contact information of accident witnesses who could testify as to what happened. This evidence serves as proof of your injuries and the expenses you need to be reimbursed.
Workers’ comp benefits are available to all employers whether you are a white-collar worker, blue-collar worker, a construction worker, an agricultural laborer, a domestic worker, or employees who work on the railroads or boats.
Do I need an attorney?
We have represented countless injured workers in workers’ compensation cases. Getting our legal advice is the best way to ensure that you enforce your legal rights and recover adequate compensation for your work-related injury. This is especially important when deciding whether to settle your workers’ compensation claim.
Legal References:
- See, for example, Hankins v. Am. Med. Response Ambulance Serv. (United States District Court for the Eastern District of California, 2018) 83 Cal. Comp. Cases 234.
- See, for example, California Labor Code 4654 LAB.
- See, for example, Specialty Rests. Corp. v. Nelson (Colo. 2010) .
- See, for example, Metro. Tower Life Ins. Co. v. Roosevelt Land Partners Corp. (Court of Appeals of Arkansas, Division Three, 2023) .
- See, for example, Kmieciak v. Ill. Workers’ Comp. Comm’n (, 2020) .
- See, for example, California Labor Code 132(a) LAB.
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.