When an accident/incident causing damages occurs and it involves liability of another party or parties, evidence becomes crucial. Unless a party admits and doesn’t contest liability, evidence drives either successful settlement or a jury award. Starting after the accident, it’s important to gather the right evidence at the earliest possible time.
When it comes to evidence, testimony from witnesses, including parties to the accident, is accepted as evidence in Court. The statements of the parties (or friends/relatives) will not hold as much weight as witnesses unconnected to parties with no interest in the matter. Parties are assumed to be biased, while disinterested witnesses are seen as more credible. Therefore, getting points of contact of potential witnesses to an accident is critical. Beyond witnesses to the accident, witnesses to the level of injury (damages) are also important to proving the level of damages.
The damage to vehicles in a car wreck is solid evidence showing the nature of the impact and therefore liability. It’s important to have pictures before vehicles are repaired. Additionally, other material items effected by the wreck help tell the story and show liability. Finally, most vehicles have a “black box” vehicle recorder which tells what happened to the vehicle before, during, and after the accident. Third parties will usually pull and give the read-out from the vehicle black box.
Medical documents of assessment of accident injuries, and particularly medicals from right after the accident, are critical. They prove the injuries and level of injuries and help prove the connection of the injury to the accident. This evidence will likely continue well after the accident, and it’s important to keep all these records. Similarly, evidence of lost wages from being out of work due to the accident is important. Any other such “losses” should be memorialized as evidence.
Despite the impression of many Americans about the number of personal injury cases going to jury trial, the reality is that the vast majority settle at some point between the accident and a jury verdict. Though you may hire an attorney to handle your case, it’s important to understand settlements and settlement negotiations to obtain the best result possible. In the end, the client and not the lawyer must make the critical decisions of whether to settle and for what amount, so this knowledge is critical.
The first thing to understand is that vehicle property damage will normally be handled separately from personal injury damages of the same accident because insurance carriers separate the two and will resolve separately. The vehicle claim is normally resolved without lawyer involvement. The lawyer would have to work on contingency unless you were to pay his hourly fees, so he would collect 1/3rd of the damage amount offered for property damage. The insurance carriers normally handle the property damage among adjusters, and the amount is a liquidated damages amount for repairs or total loss amount by Blue Book value. Having to pay a lawyer for property damage is not going to be worth it in almost all cases of resolving property damage.
For personal injury, the injured and non-liable party’s attorney will usually reach out to the liable party’s insurance carrier (sometimes directly and sometimes through the liable party). Usually, lawyers will send the initial law enforcement determination of liability (in South Carolina, the FR-10) and medical bills along with a demand. Normally, the lawyer will demand the limits of the liable party insurance to settle the case, particularly as most drivers will have the $25,000.00 limits and medical bills will normally run at least $3-4,000.00 if the injured party was taken by ambulance to the emergency room for evaluation. A reason the lawyer will likely demand limits is to keep his position to come down if and when the insurance carrier sends a counter-offer. Understand that if the limits are high and the medical bills are low the initial demand may not be the limits but still a liberal amount.
The insurance carrier will determine liability (note: The FR-10 report would not be admissible in court as the law enforcement officer has not been deemed an “expert” in accident reconstruction, and so even if the FR-10 determines liability the insurance carrier may still dispute). Then the insurance adjuster will look at the medical notes and bills and consider associated damages like pain and suffering. He may also consider lost wages if that evidence is sent from the attorney. The insurance adjuster, if he has accepted liability, will likely make a “low ball” counter-offer of a number just above the bills presented. Then the injured party can come down to a lesser number from the initial demand in a counteroffer. In most cases, if the injury isn’t something permanent or involving prolonged treatment (like a broken bone) a good settlement would normally be 2-3 times the medical bills. That can vary substantially based on the venue being traditionally pro-plaintiff or not.
If the parties are not able to settle, the injured party makes the decision about bringing a lawsuit. It’s important to understand that in bringing a lawsuit a party will start building up debt in litigation costs that will come out of his 2/3rds of any settlement or jury award. Therefore, if the settlement is anywhere near the insurance policy limits it’s probably best to consider settlement.
Throughout the litigation, process parties can and do settle. In fact, in South Carolina parties are required to attempt “mandatory mediation” if they haven’t settled before trial. This involves an outside mediator attempting to help parties find common ground, and many cases are settled at mediation. Importantly, parties can talk to each other openly at mediation without having to worry that the information could be used at trial. Settlement negotiations are confidential. Even if cases are not settled at mediation, they can still be settled afterwards and with the benefit of what is learned through discovery and at mediation. In fact, many cases settle even during trial before the jury goes to deliberation. The benefit of mediation is that the parties have control over the process. Juries can be very unpredictable, so become a risk for both parties.
Remember that you, and not your lawyer makes the key decision of whether to settle or not. Keep abreast and be ready for settlement decisions at any time.
Due to the highly publicized, seemingly “outrageous” cases involving punitive damages, many in America think “Punitive” damages, also called “exemplary damages,” are the normal part of almost every lawsuit. For example, many have heard about the woman who spilled coffee in her lap and received “outrageously” high punitive damages as part of her case. What they don’t know are the background details of why the court initially awarded punitive damages (note: the punitive damages were decreased significantly on appeal). That fast-food chain had been heating their coffee many degrees above the safety level and had multiple prior suits and notices of the dangers of such hot coffee. In the highly publicized case, the elderly lady was burned so bad she spent significant time in the hospital with operations to replace third-degree burned skin with skin grafts. Initially, she solely asked the food chain to cover her medical costs, but that was refused. Because the jury found this business had continued to put customers in danger after notice, the award did involve punitive damages. That is not the norm for most suits. Let me explain punitive damages.
First, Punitive damages are distinct from compensatory damages in tort law. The purpose of tort law (civil litigation over one party liable for damages to another) is to make the damaged party whole. Whole being as close to the same state as before being damaged by a liable party. Damages are calculated by the direct costs (including pain and suffering) caused by liability. This limits damages to what can be proven by evidence to be “proximately caused” by the liable party (Defendant in a suit). Punitive damages are different in that they are intended to “punish” the liable party with an intention similar to criminal law punishments in both deterrence and justice. Punitive damages are brought by the Plaintiff who was damaged by liability, but the punitive award is not meant to make him whole but as punishment for the liable party due to particularly egregious conduct.
Because punitive damages are unique, the legal standard for the award of punitive damages is higher than damage amounts meant to make the Plaintiff whole. A party bringing punitive damages must prove the Defendant was “willful, wanton, and reckless” for the award of punitive damages. “If” the jury believes the Plaintiff proved Willful, wanton, and reckless behavior to justify punitive damages, the amount awarded can be well beyond the non-punitive damages. Unlike with non-punitive damages, which must be as precise as possible to the damages proximately caused by liability, juries are not directly limited with punitive damages. Juries are advised that the punitive damages should be commensurate with the level of the willful, wanton and reckless actions of the Defendant and with the intention of bringing justice and deterring future such actions. In the case of this international, multi-national food chain receiving punitive damages, the level of punitives will generally be higher because “punishment” and deterrence requires a high amount. Part of the intention of the Punitives was to finally stop the food chain from heating coffee to dangerous temperatures.
Punitive damages are controversial and are reduced on appeal in many cases. By case law, outrageous punitive damages have been viewed as violating the Constitutional prohibition of the Eighth Amendment (no cruel and unusual punishment). Normally, punitive damages are held up on appeal if they aren’t beyond around four to six multiples of the total of compensatory damages. Regardless, juries are given wide latitude and discretion as the punitive award is going to involve subjectivity.
It is rare to have punitive damages awarded, but important to know about them and when they apply.
Thursday, 10 March 2022 13:07
After a car wreck involving injuries, the first concern is getting the treatment needed. At some point after emergency treatment, it’s important to start looking toward recouping damages, including that medical treatment, caused by another. South Carolina law requires motorists carry at least $25,000.00 of insurance coverage for the event they cause injuries to another with their vehicle. That gives some financial protection to those who are injured by the liability of an at-fault driver, but doesn’t cover two situations: 1. Some motorists violate the law and do not have insurance and/or drive vehicles not insured. 2. Sometimes the level of damages goes well beyond the $25,000.00 in minimum coverage the at-fault driver carries. The first situation can be covered by uninsured motorist (UM) coverage and the second by underinsured motorist (UIM) coverage. Let me explain the nuances of both.
First, it’s important to know the importance of ensuring your policy has UM and UIM coverage. This is something that should be offered when purchasing insurance coverage (in fact, if the purchaser is not made aware and offered this coverage, that failure to offer can become legal grounds against the insurance carrier as I will explain in a later article). You must have this coverage as part of your own vehicle insurance policy in order to seek this coverage in the event of being injured by an UM or UIM at-fault driver. This will likely mean an extra cost, and is not required by law so is discretionary. Take it.
When injured by an at-fault uninsured motorist, you or your lawyer will make the claim for UM coverage. The UM coverage will be at the limits you chose for liability coverage (coverage for damages you may cause against another). Important to note that South Carolina (and many other states) allow for “stacking” of UM coverage by the number of vehicles insured under your policy. As an example of how this works: if your liability coverage limits are the SC minimum of $25,000.00 then your UM coverage would be the same. If you have two vehicles covered under the policy, the amount of coverage with stacking is $50,000.00!
UIM coverage is very similar to UM coverage (including stacking), but for the circumstance of damages exceeding the at-fault driver’s limits. For example, if your hospital bills are $30,000.00, but the at-fault driver only has minimum limits of $25,000.00, then you would be able to make a UIM claim against your insurance carrier for damages remaining when the at-fault driver’s limits have been tendered. In this example, the overage of damages are at least $5,000.00 more, but with claim of pain and suffering and other damages beyond hospital bills the UIM coverage tendered should be much higher (though based on available coverage by the UIM limits with stacking).
Important note: Your insurance company can defend themselves “against” a UM (or UIM) claim for both liability and damages, and can even retain counsel to “defend” from the standpoint of the alleged at-fault driver. For a case in which liability is questionable, and/or you are requesting an amount in excess of what they believe your damages, they may assign an attorney to defend against the UM or UIM claim. Interestingly, when these types of disputed liability cases go to court the defendant will likely have two sets of attorneys on his “side”. The Defendants own insurance carrier assigned attorney defending him to prevent him paying his policy, and the Plaintiff’s insurance company’s lawyers defending against the UM or UIM claim.
It’s important to understand UM and UIM coverage even if you have retained a lawyer to ensure all potential coverage is being pursued.
One of the most important aspects of a personal injury case is determining the amount of damages. Many have developed the impression from the publicizing of abnormally high verdicts, that after an accident or slip/fall the side found liable must just pay a huge sum of money. Despite aberrational high verdicts, the American tort system is based on putting a hurt party back in the same position as before the accident. “Tort” is Latin for “twisted”, and the tort system is about setting things straight through making the tortfeasor (liable party) pay the injured party for the damages he is found to have caused. The only real way to set things straight is with monetary payment from one party to another, so the dollar amount must be found commensurate with the damages caused and the level of liability.
Some damage determination is rather straightforward. If the “victim” party (victim of another’s liability) must go to the hospital for emergency treatment and evaluation, those hospital bills will be clear damages. Associated with those direct medical bills will be a more subjective amount to cover the pain and suffering. This amount can vary greatly based on the nature of the injury. In my experience, two to three times the medical bills become a reasonable expectation. If the injury involves future medicals, those predicted bills are damages. Same with costs associated with a care and other such expense connected with the injury. If the injury was serious enough to effect future earnings, those lost amounts are damages. Of course, any lost wages due to the injury becomes compensable under tort law.
Most states follow “comparative” negligence in tort law. This is distinguished from contributory negligence states, in which a person bringing a suit cannot have contributed at all in liability to bring suit. Comparative negligence means that tortfeasors pay for their percentage of negligence in an accident, even if the person suing had a percentage of liability. In South Carolina, we follow “modified comparative negligence” in which the person bringing suit cannot be over 50% at fault, but otherwise, the party being sued must pay their percentage of the liability. For example, if a jury were to find the total damages to be $10 million, but the party being sued was 50% at fault, that party would have to pay $5 million. For multiple tortfeasors, each could be less than 50% and each paying their share of the liability.
The one wildcard from the norm is with punitive damages. This is rarely awarded, and for the case in which the liable party is beyond normal negligence and to a level that deserves punishment beyond compensatory. The money assessed goes to the party bringing the suit, but the money is not tied to compensation but punishing the tortfeasor. Normally, parties bringing suit cannot rely on obtaining punitive damages when assessing their case. It’s just too extraordinary.
It’s always important to spend great time on determining damages. Before bringing suit it’s important to know when the damages will likely exceed the cost of bringing the action. In that event, it is probably not worth filing suit, even though it might make sense to attempt demands and settlement. It’s important to know damages to know about demands to the other side, and what makes the most sense in settlement. Determining damages itself can bring substantial costs (experts determining life care plans and medical experts for future medicals), so it’s important to retain a lawyer for help.
Wednesday, 02 February 2022 21:25
After a car wreck or “slip and fall” involving personal injury in Orangeburg, the usual place lawsuits are filed in South Carolina is in the state “circuit” court of the Court of Common Pleas (Civil Court). This is the state court most are familiar at the respective County Courthouse. The Judges are former experienced lawyers who are elected by the South Carolina Legislature, and the court puts no limitations on the amount of damages sought (note: the one exception is if the damages sought exceed $75,000.00 and the parties are from different states. In that event a party can “remove” the case to Federal Court. That is unusual). Because damages are not limited, many parties will first consider Circuit Court, but it’s important to know an important alternative: Magistrate Court. Let me explain why you may want to bring your personal injury case in Magistrate Court.
First, it’s important to understand the primary drawback to Magistrate Court and that is the $7500.00 cap on damages for Civil cases. The parties must plead that they are seeking no more than $7500.00, or the case can be dismissed. The exception to this rule is with the exceptional cases which involve punitive damages which can exceed the jurisdictional amount. The corresponding exception is that parties can seek attorney fees in some cases. The reality is that a party should usually never assume they will be able to receive punitive damages or attorney fees beyond the $7500.00.
The important thing to understand is that the $7500 limit is for each individual case. If a family were to be involved in a vehicle accident, cases could be brought for each member of the family injured, with each case up to $7500, then combine the cases for trial. With that, a “family” could obtain a verdict way beyond $7500. For example, if both parents and four children were all evaluated and treated in the Emergency room, the total amount sought could be $45,000.00.
The other potential drawback to magistrate court can also act as a reason to pursue the case in magistrate court: Lack of discovery. In the Court of Common Pleas, parties exchange discovery requests and answers and conduct depositions, and this makes up the bulk of litigation. It allows parties to learn more about each other, and find evidence that acts as a “smoking gun”. The Discovery process is cumbersome and time intensive, and the main reason litigation in this court takes around a year or more to go to trial. During this time, parties can spend substantial sums of money on expert witness and depositions, among other discovery related expenses. This can substantially lower the net amount the plaintiff finally puts in his pocket after the resolution of the case.
Unlike the Court of Common Pleas, in Magistrate Court parties do not engage in discovery. Therefore, the time between filing suit and going to trial is usually only about a fourth or a third of the amount of time compared with Circuit Court. Additionally, beyond trial exhibit type expenses parties will spend very little to get to trial. They may not have the opportunity to find smoking gun evidence, but can still present all evidence in trial. The net amount from a magistrate court resolution can exceed a circuit substantially when considering litigation savings.
Obviously, cases involving substantial damages in the mid to high 5 figures and above should probably be filed in the Court of Common Pleas. For lesser personal injury damage cases, consider Magistrate Court.
Tuesday, 11 January 2022 22:39
When serious car accidents occur, a number of things happen in the aftermath. Bystanders help those hurt. EMS arrives to perform treatment and transportation to Hospitals. Officers arrive on scene to handle issues like traffic and investigation. Insurance companies are called. In many cases, not only will law enforcement produce an FR10 and/or accident report, but may issue a citation to one or more of the people involved. Normally, it is to the person the officer deems to have committed some kind of Traffic Code violation and will also be the person that officers believes responsible for the accident in the FR10 and accident report. What does this citation mean for any potential personal injury civil case and what should be done about it?
First, it’s important to know that the officer’s FR10 and/or accident report which holds a party responsible would not be admissible in court and many times is incorrect. The officer normally arrives on the scene after the accident, and relies on hearsay of the parties and, maybe, third party witnesses. In many cases, it is solely the hearsay information from parties and the officer must make a determination of whom to believe. Most officers could not testify in court about opinion of fault. The officer could only testify to what he saw upon arrival, and could not even testify to hearsay (unless a party admitted fault, or some other unusual exceptions). The one exception is with an officer with some kind of unusually great accident reconstruction credentials, in which case he may be certified by the court as an expert. That is extremely rare.
If the officer issues a citation and the person receiving the citation is found guilty (including paying a ticket and thereby admitting guilt), that becomes part of the record and would be allowed as evidence at a civil trial. It becomes extremely powerful evidence to overcome, as the violation will almost always act as a “per se” for liability (assuming the violation was related to the accident and to prevent what occurred, which is almost always going to apply). Bottom line is that if a party is found guilty of the citation, they will almost certainly by found the liable party in any civil trial.
With that, it’s critical for parties to take citations seriously. If a party was injured by another and the offending party was issued a citation, the injured party should make the effort to attend any court proceeding for the citation to act as a witness for the prosecutor. In many cases, the person injured is the only witness, and if the injured is not available to testify the citation is dismissed for lack of evidence. If someone was issued a citation they should not have received (they were not actually guilty of the offense) it’s critical to fight the citation in court. In many cases, just showing up in court may be enough as witnesses may not be present. If a witness does appear, the injured party can cross examine and also provide testimony about what occurred. It’s up to the judge (or jury if requested) to determine guilt.
Because the citation is so important to any potential civil action involving personal injury, whether bringing a suit or being sued, it is a time to consider hiring an attorney. If looking to bring a suit, the attorney will likely not charge his time on handling the citation until the civil suit is resolved and after his contingency. For example: A lawyer does $500 of work on representation over the citation. He is successful with getting the citation dismissed, and successfully obtains a $30,000.00 settlement for that client over the personal injury. He will take his $10,000.00 contingency, and then $500 more for the citation. The client comes out way ahead. Note: The attorney would have to believe the party he is representing really was not the liable party to enter this kind of arrangement, as he get’s nothing if the civil suit is not successful.
Bottom line: Take seriously even small citations when they are related to personal injury.
Monday, 22 November 2021 07:24
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!
Thursday, 21 October 2021 11:21
In the cases, I have done with workers who have been injured while at work, I have run into clients (and associated employers) who have questions about the convergence of Workers Compensation and the Family Medical Leave Act (FMLA). In short, the FMLA requires employers allow their employees up to twelve weeks of leave for valid medical reasons. This normally comes after the employee has used any sick leave (and potentially regular leave), which is normally paid leave for a short period of time. FMLA requires that employers cannot terminate employees while on that leave, but does not require they pay the employees. Most do not. Normally, FMLA comes into play when the employee has a medical issue requiring absence from work but not related to work. That doesn’t mean FMLA cannot be used for time off work for workplace injuries, but that’s normally when workers compensation benefits take priority. Those benefits include not only time off work, but compensation of up to two-thirds of an employee’s normal wages. Sometimes, FMLA and Workers Compensation converge and that’s important to understand
Under Worker’s Compensation Law in South Carolina, employers with four or more employees must cover their employees with worker’s comp coverage. In the event of a workplace injury, the worker is covered regardless of fault (whether he or the employer is at fault). This coverage is both medical coverage for the injuries sustained, and coverage of the majority of the earnings while the employee cannot work. Once the employee is medically cleared for work, the compensation checks stop and the employee must return to work to keep his job (with the exception of being able to use regular leave or potentially sick leave with the agreement of the employer.
When an employee is injured and cannot work, he has the right to use FMLA and is not required to make a workers compensation claim. If he does begin FMLA, he is under the regular mandates for the twelve weeks and no requirement for pay during that time. Obviously, the employee would rarely choose that option, and would instead file for workers comp and receive pay while unable to work. The employer “could” begin FMLA for the employee, but the employee cannot be terminated while on workers compensation benefits and unable to work. As a practical matter, it makes little sense for an employer to begin counting FMLA days. If the employee has a separate medical problem after returning the work, he is still authorized up to the same twelve FMLA weeks, and any prior FMLA is not counted against that time. The only potential reason for an employer to run FMLA is the concern that the employee might continue remaining at home after being medically cleared. In that event, the employee would be at home without pay, and so that would make little sense for the employee if he is medically cleared to return to work (note: Employees can sometimes contest the determination they are able to go back to work, and if successful they will continue receiving comp checks and be able to remain at home).
Make sure to understand your rights and seek counsel if necessary
After serving in the Army for over 30 years, about half active duty and half reserve component, and multiple deployments, I have become personally familiar with the Veteran Administration (VA) System since my retirement in December 2020. I write this article as both a lawyer who practices some military law and also as a veteran who has learned nuances of the system through experience. This article will be focused on the initial stages of making a claim for VA disability compensation and a supplemental claim in the event of a claim rejection or unsatisfactory disability rating.
First, it’s important to start the VA disability claims process early. Without going into details, it is most advantageous to submit the VA claim before retirement or non-retirement discharge from service. In that event, your claim is processed more rapidly and at a higher priority than otherwise. After leaving service, it is still important to act diligently with making a claim or claims. If claims are made within a year of discharge (for this article, it is assumed the discharge is under honorable conditions), any disability compensation granted will be backdated to the time of discharge and payment will include backpay to that date.
In putting together the claim, it’s important to gather all potential evidence of the “service connection” of the claim and the seriousness of the disability. For an injury occurring during training or operations, the medical documents from the treatment of that injury are critical. It’s important that any injuries suffered while on active duty are memorialized by a visit to a military health care provider. Ensure that the medical records include the service connection of the injury. For example: “SM appeared for treatment for a twisted knee incurred during a parachute landing fall while on field training”. In addition to the initial treatment and evaluation records, it’s important to show records of follow up evaluation and/or treatment. Recording witnesses to injury is recommended, as their statements to witnessing the injury can become necessary evidence.
The VA will review all documentation submitted, and pull records from various databases they have available (military records, potential medical insurance records, etc.). They will assess each claim separately, so they may give a rating to one claim and deny another (for example, give a 10% rating for hearing loss, while denying an ankle injury). The level of rating will determine the monthly compensation check which will be directly deposited into the veteran’s account.
In the event a claim is denied or given a substandard rating for the level of injury, the veteran should consider immediately file a VA Form 20-0995, Decision Review Request: Supplemental Claim. The veteran has only one year to make this claim, and if successful in overturning a rejection or receiving a higher rating, the claim will backdate to the filing of the original claim (which backdates to discharge if the original claim is made within one year). In this claim process, the servicemember must provide new evidence not previously considered. This is the time to scour records and documentation and potential witnesses who can provide statements to provide new information. In the case of one claim, the rejection was based on the grounds the serious injury was preexisting to an “initial enlistment physical”. This was clearly incorrect, as the veteran had been injured at an Army School as a Cadet, and the physical referenced in the rejection was right before commissioning a year after the injury. The records of this person being injured as a Senior ROTC Cadet on Army orders (orders going beyond a month) were the critical documents that were not considered and the key to overturning the rejection.
In future articles, I will write about higher appeals procedures. It’s important to consider the help of an attorney with claims, as the lifetime effects of a claims decision go well beyond what would be paid to an attorney. That is particularly the case after a claims rejection. Lastly, thank you for your service!
By Bill Connor