Bill Connor
The term "personal injury" can have different meanings depending on the context. In the context of lawsuits, personal injury means those damages which an injured party or parties will bring against the party who caused the injury. Within damages in a lawsuit, it is distinguished from property damage which may have occurred during the same incident or accident. Closely connected to personal injury, and brought as damages with personal injury, are personal damages like lost wages. The first question someone should ask when they are injured by the seeming negligence of another is: Should I bring a lawsuit and what should I reasonably expect from the lawsuit? In determining whether or not to take the steps toward bringing a lawsuit, which would normally begin with a demand letter and attempt to settle before filing, is the reasonable chance of winning in court. You must be able to show the negligence of the offending party or parties (Note: I have written a separate article about negligence which explains the elements you must prove). Regardless of the truth about what occurred during the accident or incident, what matters most is the evidence which could go before a jury. Did the other side make an admission? How many and how credible are witnesses? What does the physical evidence show? All these factors must be analyzed to ensure the case has the potential for winning in front of a jury (Note: I have also written about the importance of venue, where you can seek venue, and factors about venue which plan in the decision). After determining the reasonable chance of success, the next evaluation is the reasonable amount to be expected in settlement and/or jury verdict. In some cases, the monetary damages expected may be so low it is not worth it to pay the costs associated with bringing suit. With personal injury, the first analysis is on the total medical bills associated with the injury. If EMS and emergency evaluation/treatment is involved, the bill for those medical services is likely to be over $3,000.00. Those are usually the most uncontested bills, as seeking treatment in the Emergency Room is normally considered reasonable regardless of the accident. In determining the potential jury verdict, the actual bill from the hospital is what must be considered as the damages. Not what was paid by the insurance company or patient co-pays. Your insurance company may have paid only a fraction of the bill, but that insurance information will not go before a jury. Only the medical bills. Further treatment recommended by the ER, like seeing a primary care provider, is normally accepted as reasonable. Unusual treatment, like chiropractic treatment in some circumstances, can be questioned. Treatment which evidence/records proves connected to a pre-existing injury can be contested. This is an issue in which expert testimony may be required in bringing suit, but worth it is the liability appears clear and the damages are substantial. Beyond straight medical bills, pain and suffering, and future partial or permanent disability are more subjective damages, but damages the jury will be expected to consider in the overall verdict. Lost wages, loss of future earning capabilities, loss of enjoyment of certain things due to the injury are also damages connected with personal injury the jury would consider. Different venues offer different average jury verdicts, so studying the venue and prior verdicts is important to evaluating the value of the case. As a rule of thumb in many venues, assuming no substantial future damages and/or substantial injuries like broken bones, the total damage award can be expected at 2-3 times the overall medical bill. The reason it goes well beyond the medical bills is compensation for pain and suffering associated with the injury. The amount can be substantially more if the injury is significant and involves futures. Again, each venue is different, so it's important to study the venue and consider all medical damages and future issues. In some cases, psychological injury comes into play due to the nature of the injury. Additionally, spouses can claim damages for "loss of consortium" due to the accident. These are damages the spouse suffers due to what has happened to their loved one. Note: Loss of consortium goes beyond the sexual into all the things spouses do for each other. It is always best to seek legal representation (note: I have written about contingency fee agreement for those bringing lawsuits), and best to get your lawyer to provide detailed analysis. However, with these basics of information, you will be in the position to better understand whether to sue and what to expect.
For many, being hurt on the job is something unexpected. With all the various safety requirements, it seems as though it just couldn't happen. Most expect the possibility of being hurt in a vehicle accident of something similar, and know the basics of what to do in the event of that type of injury. However, being hurt on the job is something unique, and the normal legal remedies available are unique and must be understood before the injury (Note: though states have similar laws for workers compensation, I write this article as an attorney licensed in South Carolina, and by SC law). First, in most work situations the employer will have workers compensation insurance. In fact if the employer has four or more employees he is legally required to have workers compensation benefits for employee. Under workers compensation law, an injured worker (for an injury sustained on the job) with workers compensation benefits is required to seek workers compensation benefits against his employer regardless of the fault of the employer in causing the injury. Workers compensation is a "no fault" insurance program. This means it does not matter whether or not the employer is liable for the injury, he is required to take care of the medical needs of the worker associated with the injury. Workers compensation benefits include medical compensation benefits and temporary partial disability payments while the worker is unable to work. When the respective worker is brought to "maximum medical improvement", workers compensation provides a lump sum amount to compensate for future medical issues and problem. In the event the employer did not have workers compensation, in violation of state law, the worker will still receive benefits through a state fund, and the state will go after the employer for recoupment. In some cases, the worker may have further recourse beyond workers compensation for injuries sustained on the job. If another party or corporation, beyond the employer providing workers compensation is responsible for the injury, the worker can sue the other party after resolving the workers compensation. For example if an employee is injured partly due to equipment malfunction of another corporation providing equipment for the employer causes injury the employee can sue the equipment provider after workers compensation benefits. Another legally related issue with being injured on the job can be discrimination and/or termination due to the injury. Being injured usually puts the employee under the protections of the Americans with Disabilities Act protections. This generally requires reasonable accommodations for those with disabilities, which include disabilities due to injury. It also prohibits discrimination due to disability, including disability due to injury. If an employer were to fire an employee due to the injury, the employer could be found to have violated the ADA. In that event, the employer could face substantial monetary penalties to the employee. Employers should be very careful about taking any kind of action against employees who are injured and must allow for reasonable treatment and rights under the Family Medical Leave Act. Though an on the job injury can be tough, having a plan to handle it makes all the difference in the world.
Finding an attorney to assist after a job related injury is beyond wise. The attorney can help navigate not only the nuances of workers compensation, but understand the fine points of bringing a separate lawsuit against other parties. In the event of workplace discrimination due to an injury, the attorney will know the lines the employer has crossed in violation of Federal and/or State law.
