Personal Injury (24)
Personal injury Claims and General knowledge Learn and understand the personal injury claims the way attorneys do.
A part of my practice I love is assisting Veterans with the VA claims process. I spent over 30 years as an Infantry Officer, and cherish my time with those who write that check to Uncle Sam: “Up to and including my life”. Only around one in twenty Americans are veterans today, so veterans should feel proud of their service, whether for a few years or a few decades, America is safe because of you. I enjoy being able to help veterans through the compensation claims process of the Veterans Administration. Some of this article will be personal advice and some will be legal/administrative advice.
First, a bit of personal advice which will transition into the legal. While on active duty or, if in a Reserve Component (National Guard or Reserves) during active duty or drill periods, it is critical to seek medical attention and keep records when injured. When later making VA claims, the first step in the process for VA claims officers is making the “service connection” for the injury. This means that not only must they find proof of the personal injury, but then proof the personal injury occurred on active duty (including active duty for training or reserve component drill periods). Note that the VA will receive database information about the veteran’s service, but may not have evidence of certain time periods on active duty. For example, a Senior ROTC Cadet injured while on active duty for training (training for commissioning) is covered by VA compensation. When VA receives the database information years down the road when the veteran makes a claim, they may only have the DD 214 starting when the cadet became an officer. The veteran would need to show evidence of being on active duty when the injury occurred. Part of the evidence is the documented treatment of the injury, but also the evidence showing the veteran was on active duty.
Second, when submitting the claim it’s important to gather whatever evidence is available of the injury occurring on active duty (or active duty for training or RC drill). It’s also critical to have all of the treatment records starting at the time of the injury, but going beyond into the time of making the claim. The determination of a disability rating starts with the determination an injury occurred on active duty, but then goes to the effects of the injury on the veteran. Issues like degradation of function (of injured body part) and restricted range of motion are generally determined by both records and VA (usually contracted) exams. The VA exam will usually be scheduled at some point after the claim, and the findings of that exam are critical. However, the prior medical records memorializing the injury (and effects of the injury) are equally critical.
Third, be ready for either a denial or a substandard rating (based on what the veteran knows of the injury). That is absolutely not the end of the claims process. The next step is a supplemental claim, though that is a claim in which the veteran presents information not already provided to the VA and requests that new information be considered. Along with the Supplemental claim, the veteran should consider a sworn statement (form 4138) in which the veteran explains the evidence and offers his sworn statement as evidence. This is where attorneys can assist. If the supplemental claim is denied, and the justification of the denial does not comport with the evidence provided, the veteran can request a “Higher Level Review” of that claim. The veteran can also request a higher level review on the denial of the original claim, but it’s usually best to submit a supplemental claim first, and at least include a sworn statement.
Lastly, if the supplemental and/or higher level review is denied, the veteran can continue with new supplementals (if he has new information not known by the VA). This is usually the point the veteran considers a true “appeal” versus supplemental claims or reviews. This takes much more effort and time compared with the claims and reviews. A “Veterans Service Officer (VSO)” can help, but it’s good to consider an attorney. My recommendation is considering an attorney after the first claims denial, as the attorney can help prevent the aggravation involved with further denials and the need to make a formal appeal.
I end by giving a “Thank you for your service” to all veterans!
After a vehicle wreck involving personal injury in Orangeburg SC, it’s critical to understand the insurance coverage available to cover damages sustained. Damages are not just the medical bills, but also the pain and suffering that comes with injuries, loss of enjoyment, lost wages, potential disabilities, etc. In cases involving serious injury, the dollar amount of damages can go well beyond the insurance coverage of the liable party. In South Carolina, vehicle operators are only required to have $25,000.00 of coverage to pay damages to another party. That would not be nearly enough money to cover a situation involving serious injury and particularly if the serious injury involves multiple people. Though someone can be held in judgement beyond their insurance coverage, the old saying “you can’t squeeze blood from a turnip” applies in many cases. If the liable party doesn’t have the money, they don’t have the money. The good thing is that normally there are other insurance coverages involved. The first thing to consider is “Underinsured Motorist” (UIM) coverage. This is coverage the hurt party has that if for the situation of the liable party not having sufficient coverage of damages. Along with UIM coverage is also “Uninsured Motorist” (UM) coverage in the event the other party has no coverage (note: it is against state law not to have minimum limits of $25K, so it is likely a non-covered driver will also not be able to pay if held in judgment). UIM coverage is up to the amount of liability coverage if the driver has UIM. For example, if someone has the minimum limits of $25K, they will also have UIM of $25K. If the other driver cannot cover the damages, UIM covers an additional $25K. If the coverage is $50K, then liability is likewise $50K. South Carolina also allows “stacking” of UIM coverage for all the vehicles on the policy. Therefore, if the UIM coverage is $25, but there three cars under the policy, then total coverage would be $75. Also important to note: Policies have different coverage for multiple people injured. For example, a $25K policy is actually 25/50, meaning that $50K is available if multiple parties are injured. If two people are injured, each person has up to $25K. If three people were injured, they would have to divide up the $50K, and at least two parties would get less than $25K. For an example of how insurance coverage works in Orangeburg SC: An at-fault vehicle has minimum $25K coverage and causes damages of $55K to another person. The other person has a $25K UIM policy, and therefore has up to $50K for the liability coverage and UIM coverage. If he has another vehicle, he could “stack” a $25K UIM policy, and have the $5K coverage for the full damages. It is always important to look far and wide for coverage. In some cases, a person may be a “resident relative” of someone else in their home who has vehicle insurance coverage that may apply to that person, including UIM coverage. I have sometimes found this to be the case when we thought the person was uninsured but discovered the resident relative coverage. Have your attorney check for all possible coverage of all damages.
The most tragic result of an accident is the death of a loved one. In a number of such cases, someone is severely injured by another party’s negligence, and that injury results in death at a later point in time. When this occurs, the loved ones of the dearly departed are usually rightly focused on all the other things going on after death. They are going through the pain and anguish of the loved one. They are deciding how to handle all the various administrative and practical tasks associated with the death. Arranging a funeral, obtaining death certificates, finding the last will and testament are only the tip of the iceberg of the various necessary duties of the loved ones. One thing that must be considered at an early stage is handling the legal claim against the negligent party in the new circumstances. Importantly, the death does not end the claim, but changes the parties and adds new party claims. Let me explain. Whenever someone dies as the result of the negligent actions of another, there are two primary claims by two different types of parties against the negligent party. The first potential claim is the wrongful death claim brought by those dependent upon the person who died. For example, if a breadwinning husband and father dies, a wrongful death claim can be brought by his wife and children for what the death deprives of them. In particular, the father/husband’s future earnings to take care of his family. The key point about this claim is that it’s separate from the claim of the person who died. The damage award will be assessed for each loved one and given to them after resolution of the case (for the children, it may be in trust). The second type of claim is called a “survival action”, the claim brought by the estate on behalf of the dead. This claim is theoretically what damage the wrongdoer caused the dead before he passed, and is normally the assessment of the pain and suffering brought before death. If the person spent a great deal of time in pain prior to death, the damages would normally be more than if he died instantly. This is brought by the personal representative on behalf of the estate, and the award would go into the estate to be distributed to the beneficiaries of the last will and testament (or intestacy, by state law to heirs). Many times, the same parties who brought the wrongful death are also beneficiaries of the will, though not always. To give an example of how this works: The wife and children of the dead father have received a damage award for what the death caused them (being deprived of the father/husband’s salary). The wife and children were also named in the will, and when the survival action resolves, it is distributed by the terms of the will. Normally, the suits are brought while the estate is being probated, and is brought in one lawsuit with multiple parties and claims. The same wrongdoer (assuming one wrongdoer) would be paying out the various claims associate with the death. If insurance is involved and doesn’t cover all damages, this could be a time in which under-insured coverage comes into play. These kinds of cases normally settle before trial due to the high damages and limits on insurance coverage, but can work to take care of loved ones through a very tough time. Finding the right lawyer in these circumstances is critical.
After a car wreck or slip/fall accident and decisions come about bringing a lawsuit for personal injury, the question of venue can be the most important for success a successful outcome. “Venue” is essentially the court you decide to bring a case, and it must be a court with jurisdiction over the parties. In South Carolina (as in many other states), jurisdiction in a state Circuit Court comes by either the county of residence of a Defendant in a lawsuit or the county in which the incident occurred. For cases involving damages less than $7500, County Magistrate Courts are a possible venue, but only have jurisdiction over the case if the Defendant is a resident. The other potential venue is Federal District Court for cases involving either Federal law or diversity of the states of the parties in very high dollar cases. Federal jurisdiction is extremely rare in personal injury cases involving car wrecks and slip/falls, so we will focus on state Circuit Courts. In an accident, if the Defendant is hurt in the same county as his residence, venue is going to be that county. If the accident occurs outside the Defendant’s residence, that gives options for which venue to file. Additionally, if multiple Defendants are involved, that could offer more than two counties to file. This is where decisions are made which have high significance. There are a number of factors in deciding which venue to seek in the event of multiple venues available. First and foremost is to acknowledge that the jury pool will come from that County. Some jury pools, for various different reasons, are much better for those bringing cases. They are usually considered more “Liberal” counties and usually correspond to politically Liberal counties. They are more likely to offer more and higher jury awards. The more “conservative” counties are just the opposite and are much better for defending cases. As would be expected, the more conservative upstate counties like Greenville are better counties to defend cases, while counties in the most Democratic Counties in the Sixth Congressional District are most Liberal and offer the most and some of highest verdicts. Orangeburg SC, being in the heart of the Sixth District, is one of the best places to bring a lawsuit, and one of the toughest places to defend. Within venues, it’s also important to consider your own county residence and similarities to the people of the venues. If you live in the venue you bring the suit with a solid reputation, it becomes more likely the “jury of your peers” will include those who would be favorable to you. Additionally, some counties have similar attributes among the people which may or may not create a sympathy with you bringing a lawsuit. For example, there can be a demographic of people that are historically sympathetic to juries in the counties and historically receive the greatest jury awards. For example, some venues have large medical centers and therefore a high population of those in health care (and relatives/friends of those in healthcare). They will generally be more sympathetic to a plaintiff who is a health care provider in the local hospitals. This is something to discuss in detail with your attorney. One of the key things to understand is that the human connection with the jury, or potential for connection with the jury, is what drives the best results in a personal injury case. Pay attention to it, and plan wisely when filing suit.
Beyond major life events, like buying or selling a house and creating estate documents like Wills and Power of Attorney, most people do not deal with lawyers. That changes in the event of a major accident (vehicle, slip and fall, etc.), when an attorney becomes part of one’s life for months or sometimes years. Lawyers are meant to help clients navigate all the issues involved with resolving an accident, and clients are dependent upon the lawyer’s experience and expertise. Sometimes, the lawyer involved does not appear to be doing all he should in the case or with communicating properly about important issues of events with the case. It is at these times the client may need to switch attorneys, and it’s important to know how to do it right. The first thing to understand is that a potential substitute attorney cannot take over as lead counsel and advise about the case until the first attorney is discharged as counsel by the client. Therefore, don’t be surprised when “shopping around” for a new personal injury lawyer if the potential new lawyer is limited in what they can advise. They can do a consultation about the laws involved with the case, but cannot direct the client while that client is still represented by other counsel. Normally, the “new” lawyer will ask the client to provide notice to the “old” attorney of being terminated and retrieve the file. At that point, the “new” lawyer can become the lead counsel, file a notice of appearance (or “substitution of counsel” to switch out with the court), and start advising. A potential issue can arise when switching lawyers in a personal injury case in South Carolina, and this issue can sometimes deter “new” lawyers from taking over the case. Personal injury cases are generally done on a “contingency” fee basis. This means that the lawyer working the case is paid with a third (sometimes 40%) of the settlement or award at the resolution of the case. If the “old” lawyer has put work in the case, he can attempt to put a “lien” on that contingency, and take some percentage to cover his work before switching lawyers. If the lawyers are switched at the end of the case, this can sometimes cause the “old” attorney to assert a lien most or even all of the contingency. This becomes a deterrent from other lawyers taking the case and earning little for their work. It is just something to discuss with the incoming attorney and understand that dynamic between lawyers. Regardless of the issues involved, do not stay with an attorney if you have multiple indicators that the lawyers are not properly representing you. It’s your right to have the best representation possible. If you are in need of an attorney in Orangeburg SC contact the Bill Connor Law Firm to see if we can help.
Beyond major life events, like buying or selling a house and creating estate documents like Wills and Power of Attorney, most people do not deal with lawyers. That changes in the event of a major accident (vehicle, slip and fall, etc.), when an attorney becomes part of one’s life for months or sometimes years. Lawyers are meant to help clients navigate all the issues involved with resolving an accident, and clients are dependent upon the lawyer’s experience and expertise. Sometimes, the lawyer involved does not appear to be doing all he should in the case or with communicating properly about important issues of events with the case. It is at these times the client may need to switch attorneys, and it’s important to know how to do it right. The first thing to understand is that a potential substitute attorney cannot take over as lead counsel and advise about the case until the first attorney is discharged as counsel by the client. Therefore, don’t be surprised when “shopping around” for a new personal injury lawyer if the potential new lawyer is limited in what they can advise. They can do a consultation about the laws involved with the case, but cannot direct the client while that client is still represented by other counsel. Normally, the “new” lawyer will ask the client to provide notice to the “old” attorney of being terminated and retrieve the file. At that point, the “new” lawyer can become the lead counsel, file a notice of appearance (or “substitution of counsel” to switch out with the court), and start advising. A potential issue can arise when switching lawyers in a personal injury case in South Carolina, and this issue can sometimes deter “new” lawyers from taking over the case. Personal injury cases are generally done on a “contingency” fee basis. This means that the lawyer working the case is paid with a third (sometimes 40%) of the settlement or award at the resolution of the case. If the “old” lawyer has put work in the case, he can attempt to put a “lien” on that contingency, and take some percentage to cover his work before switching lawyers. If the lawyers are switched at the end of the case, this can sometimes cause the “old” attorney to assert a lien most or even all of the contingency. This becomes a deterrent from other lawyers taking the case and earning little for their work. It is just something to discuss with the incoming attorney and understand that dynamic between lawyers. Regardless of the issues involved, do not stay with an attorney if you have multiple indicators that the lawyers are not properly representing you. It’s your right to have the best representation possible. If you are in need of an attorney in Orangeburg SC contact the Bill Connor Law Firm to see if we can help.
Though cases do go to trial, most cases are settled between parties prior to trial. After someone is injured due to the negligence of another, that starts a process toward an eventual resolution between the parties. In most cases, the injured party will retain a lawyer who will put together the evidence of wrongdoing and evidence of damages, and send a demand for settlement to the other side. Parties will then go back and forth over settlement numbers to attempt to reach a settlement. Mediation could come at this point, as a “pre-suit” mediation, but normally it happens after filing a lawsuit. This is the formal median to prepare to win. The Plaintiff, through his attorney, will normally file a lawsuit against the Defendant (and usually it’s through the Defendant’s insurance company) if the Defendant and/or his insurance company does not offer enough to satisfy what the Plaintiff perceives as his damages. The Plaintiff will file a Complaint, which will be served on the Defendant. The Defendant will normally give it to his insurance company, and the company will assign an attorney to defend and answer the complaint. After answering the complaint, parties will engage in discovery of information from each other, and this will include depositions of the parties and witnesses. At any point along the way, either party could reach out with an offer to settle, but normally the suit does not settle until after discovery when the parties know all the evidence. Mediation is mandatory in most circuit courts in South Carolina prior to trial of the case, so most will engage in mediation. The mediator is paid by both the parties, and is normally an attorney or former judge experienced in the type of case. The parties will normally provide a mediation packet to the mediator prior to mediation, and will usually come to mediation with their first offers to settle. What’s critically important is for parties and attorneys to plan the strategy of mediation. They must go in with the “walkaway” amount that is the limit to what they will accept from the other side. Most know from human nature if a side is desperate to settle, and willing to go as far as can be pushed. Another important part of planning is identifying all potential quid pro quos (this for that) between parties. Usually, there are other exchanges of value beyond the strict dollar amount to settle. Sometimes, it may be something as simple as an apology. It may be a confidentiality agreement if parties settle. Each case is different, but the reason for identifying potential exchanges is that it helps alleviate coming to an impasse with just the dollar figure of settlement. It’s important to “keep position” in a mediation. The first offer should be to the high end of what is desired. In almost all mediations, the starting offers are just that: A start. A high-end position allows room before coming to the walkaway number. It’s important to have the justification for demands, through good knowledge of both liability and damages. Arguments are made between parties to convince them of what would likely happen at trial. Most of the discussion will be about the legal and financial aspects of the case. However, arguments can be made about other reasons for settlement, like the history of jury verdicts in the venue and other such considerations. During the mediation, it’s important to be patient and also flexible about reading the other side. It’s important to understand the actual decision maker, which may not be the Defendant or attorney, but an insurance agent. Lastly, it’s important that in reaching settlement the specific terms are spelled out at the mediation, and the mediator has all necessary parties sign a settlement which he will file with the court. You can win at Mediation, but it just takes planning, preparation, and good execution.
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When you have been hurt due to the negligence of another, whether in a car wreck or slip and fall, it’s important to consider the potential that the case may settle at any point before a jury verdict. Normally, the first step after the injury will be to gather the evidence of the other side’s liability the accident, usually some kind of report, video or eyewitness statement. Along with the evidence of liability, evidence of the damages shown by medical reports/bills, lost wages, etc. are necessary. Once your attorney has the necessary evidence, he will normally then send it to the other side, along with a demand to settle. In other words, he will offer to settle the case and have the injured person sign a release of the liable party in exchange for a sum of money. Since most liable parties are insured, the attorney normally seeks satisfaction of damages from the liable party’s insurance company, and the demand will be capped at the limits of the insurance. For example, if the liable party only has minimum SC state vehicle insurance limits of $25,000.00, that’s the amount the attorney will likely demand if the medical bills are beyond five thousand. Parties will go back and forth after the initial demand, as the insurance company will likely “lowball” with a counter to the demand much lower than the demand. Then the lawyer may drop his demand to a lesser amount, and the counter may come up. If parties reach agreement, the case is settled “pre-suit” or before filing. The positive aspect of settling pre-suit is that at that point the injured party will likely have almost no “costs” involved, that would come out of his part of the settlement (note: the attorney will normally perform work on contingency, in which the attorney receives 1/3 of the settlement or jury verdict and the injured party receives 2/3 but minus any costs of the litigation and any medical liens to his insurance company). An example of a pre-suit settlement: The injured party incurs $6,000 in medical bills. The other side has a $25,000.00 policy, of which the demand is the full policy. The parties go back and forth and finally settle on $18,000.00 paid by the liable party insurance company in exchange for a release of their insured by the injured party. Because this was pre-suit and involved no costs, the injured party receives their full $12,000.00 with the contingency ($6,000.00 for the attorney). The medical insurance company may have a small lien (potentially $1,000.00) which would come out of the injured party amount, but the rest is with then injured party. If the parties are not able to settle pre-suit, the injured party begins to incur costs that will come out of his portion after the attorney contingency. Filing a law suit is normally costs around $150, and all Defendants must be served at roughly $100 each. During discovery, the injured party would incur the costs of depositions of around $400-500 per deposition. Experts might be needed, and their fees of thousands of dollars would also factor. If the case settles during litigation, the injured party might have settled at a higher amount, but then must pay the costs I described. So “if” the parties settled for $21,000,00, meaning $14,000.00 for the injured party, costs may be beyond $2000. In that event, the injured party may “take home” less than if settlement was pre-suit. If the case goes to trial, the injured party might obtain a jury verdict of $24,000.00, but the costs might be $4000. In that case, the injured party would be at $14,000.00 (minus any lien), which is $2000 more than if he settled pre-suit. The insurance limits will vary, and every situation is different. However, the above factors must be considered in regards to settlement.
A vehicle accident can be a traumatic event. In many cases, it can replicate the physiological responses associated with combat. In particular, the adrenaline rush which can prevent the usual sensing of pain and sometimes cloud judgment and/or perception. It is important to understand this dynamic in the immediate aftermath of a wreck. First, you should always consider seeking medical evaluation after a wreck. That's particularly the case when you have been rear-ended, and may have sustained back and/or neck injuries you might not feel in the immediate aftermath of the impact. Beyond the care of the possible injury, it is also important to be seen as near to the accident as possible to prevent any question of the cause of the injuries. If you wait days or weeks to seek care (after the adrenaline rush wears off), that could leave open the question of the accident causing those injuries. The longer the time between the accident and treatment, the more it can be argued that the accident did not cause the injuries. The length of time seeking treatment can also be used in the argument the injuries were less severe. You should also consider being careful about what you say after the wreck and at the scene of the accident. In court, a third party can testify to an admission of a party to being at fault. This is despite normal hearsay rules. You might think you are at fault and make admissions at the scene which can be used later to prove the case. In many instances, those in accidents admit fault despite objective questions of fault by either party. The problem with this comes down to perception, and perception can be clouded after an accident and during the adrenaline rush. The best thing to do is remain quiet about fault even while helping others where appropriate. Consider contacting an attorney at the earliest possible time after an accident. This person can help with directing you to treatment and how to handle insurance carriers during the process. If the attorney is experienced, they will know the steps you should take to gather evidence including personal injury damages. The attorney will likely take the case on contingency, meaning you should pay nothing unless the case brings an award (either by settlement or jury verdict). The attorney will normally contract to take a third of the award. If you believe you are at threat of being sued after an accident, put your insurance carrier on notice. You are entitled to a legal defense with your insurance, and that includes an attorney defending your case if you are sued. If you are served with a complaint after the filing of a suit against you, immediately forward that to your insurance carrier and cooperate in your defense with their attorney. I spent a number of years as an insurance defense attorney, and from experience know the insurance defense attorneys are usually experienced in handling defense cases. Listen to them and work with them.
