QuestionQUESTION: HELLO,
I WAS HIT BY A CAR AS I WAS WALKING ON THE SIDEWALK. THE DRIVER WAS HALF WAY INTO THE STREET AND BLOCKING THE SIDEWALK. I HAD TO WALK AROUND HER WHEN SUDDENLY SHE REVERSED QUICKLY AND STRUCK ME. I FELL TO THE GROUND AND TRIED TO STOP HER HOWEVER, SHE DROVE OFF. TWO WITNESSES SAW THE ACCIDENT AND CHASED THE WOMEN DOWN. SHE CAME BACK AND SAID "SORRY, I HAD TO BACK UP FAST SO ANOTHER CAR WOULDN'T HIT ME." THE POLICE CAME AND HAD HER AT FAULT FOR VIOLATING A VEHICLE CODE. IT HAPPENED ON OUR HOSPITAL PROPERTY AND MY EMPLOYER IS COVERING IT UNDER WORKER COMP. I WAS INJURED BADLY AND SUFFERING FROM PTSD. MY MEDICAL BILLS ARE NEAR $8,000 AND COUNTING.
DO I NEED TO TAKE CIVIL ACTION MYSELF? OR WILL MY EMPLOYER HELP ME?
IS THIS CONSIDERED A HIT AND RUN?
PAIN, SUFFERING, AND LOSS OF ENJOYMENT OF LIFE ARE FACTORS I CAN TAKE TO COURT?
THANKS
ANSWER: Hi Daniel,
Any tort committed by a third party while you were in a work status entitles you to both a workers' comp claim AND a tort claim versus the third party. Hence, you can have your medical bills paid by worker's comp and you get your general damages (pain and suffering, etc.) from the tortfeasor's insurance.
NOTE: YOUR OWN AUTO INSURANCE WILL COVER YOU HERE, SO NOTIFY THEM AND BE PREPARED TO OPEN BOTH A FIRST PARTY CLAIM (in case workers' comp drops some payments) AND A Underinsured Motorist (UIM) CLAIM in the event she is underinsured or uninsured.
Liability is clear and there should be no need to hire an attorney if you are willing to take the time to read and learn and do this yourself. There are five topics I will pass along to you for starters:
1. Learn about emotional distress claims
2. Learn how to handle a self-help insurance claim
3. Learn about valuation topics, especially the need for mental health documentation AND the bump in valuation due to the socially detestable behavior of hit and run.
4. Learn how to write WITHOUT USING ALL CAPS
5. Learn how to communicate with the insurance adjuster.
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#1. Learn about emotional distress claims
This answer is divided into two parts. First, you need to know that any claim for negligent infliction of emotional distress, including PTSD, will fail unless it is documented by a doctor. This could be a medical doctor or a doctor of psychology. Some courts will allow a counselor with a masters in social work to testify, BUT THEY ARE IN THE MINORITY.
Hence, if you intend to make any claim on this topic, make sure that a doctor has made the diagnosis, AND that she connects your mental/emotional condition with the trauma of the accident.
Second, if you hit your head on anything, I want you to write me back ASAP. There is a lot of additional information that I want to present to you if you struck your head. Let me know if you lost consciousness, and how you answered the medical questions as to whether you lost consciousness (most people deny it, even though they DID lose consciousness for a few seconds).
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#2. Learn how to handle a SELF-HELP INSURANCE SETTLEMENT—this is just in case you want to take a shot at doing some of this on your own. OK, Daniel, let’s look at self-help methods of resolving your claim. Learn how to settle your personal injury insurance claim AND DO IT YOURSELF.
Here is a series of pages that you can review. Take what makes sense to you and don't worry about the rest. Just get a flavor of how the system works without spending a ton of time right now.
Just skim this one and don't spend much time on it: overview Tort Law Personal Injury Legal Claims http://www.settlementcentral.com/page3000.htm
Managing Medical Care After Auto Accident: http://www.settlementcentral.com/page0203.htm
Medical Care Documentation-the Key to Successful Personal Injury Insurance Claim Settlements http://www.settlementcentral.com/page0217.htm
Keys to a MAXIMUM INSURANCE INJURY CLAIM SETTLEMENT http://www.settlementcentral.com/page0089.htm
Use a Confidential Personal Injury Diary for TOP DOLLAR Insurance Claim Settlements http://www.settlementcentral.com/page0208.htm
Outline of questions to be expected from insurance claims adjuster http://www.settlementcentral.com/page0190.htm
Detailed listing of questions to be expected from insurance claims adjuster http://www.settlementcentral.com/page0207.htm
By the way, did you know that getting an early settlement is a favorite trick of the insurance adjusters? Please see my website wherein we show Insurance Claim Adjuster Secret Tactics http://www.settlementcentral.com/page0092.htm
Responding to Settlement Offer From Insurance Claims Adjuster http://www.settlementcentral.com/page0244.htm
Do It Yourself Advantages, or do these claims need an attorney? As for an ATTORNEY, this does not seem to be a case that involves any legal issues in dispute nor any large or complex damages. Why should you pay someone one-third to do what you can do yourself? Do-It-Yourself Personal Injury Claims; Eliminate Personal Injury Attorneys' Fees; Save Thousands of Dollars Settling Your Own Insurance Claim http://www.settlementcentral.com/page3011.htm
Without having to join my website, I have given a lot of free information on handling insurance claims without having to join as a member. Read the module at "5 Easy Steps to Do-it-Yourself Insurance Claim Settlement" http://www.settlementcentral.com/page0102.htm
This stuff is not rocket science, but it will take some effort on your part to read and cut and paste letter examples and to communicate. But hundreds of people are doing it each day, and they are getting good results.
What if you get only two-thirds the way to your settlement goal? Well, you can get as big a settlement as you can and then turn it over to an attorney and save a lot of fees. Thus, you could go it alone just to get an insurance settlement offer, and then take that insurance settlement offer to a personal injury attorney, thus exempting the amount of the offer from her fees. Do It Yourself Personal Injury Settlement Offer Reduces Personal Injury Attorney Fees http://www.settlementcentral.com/page0109.htm
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#3. Learn about valuation topics, especially the need for mental health documentation AND the bump in valuation due to the socially detestable behavior of hit and run. SOME TIPS ON VALUATION—these are loose guidelines only, since we are prohibited from giving valuation on big cases in light of the exposure to a malpractice claim.
How does one figure out what to ask for? Quick Answer: get as much as you can. Figure out what would make you happy, and increase that amount by at least 50%! The value is what you and the adjuster agree it will be. Well, if that is not scientific enough for you, let’s learn a bit more about valuation of personal injury claims.
Valuation is not like going to a drive-in for a fast food meal. It takes time and study of many factors, including liability and medical records. Plus, one would like to meet the claimant to see how he will “sell” to the other side and to the jury. Those online sources that mention a "rule of thumb" is just that: a gross estimate.
SHORT ANSWER: A common theme among those who still think a “rule of thumb” formula will put you in the valuation ballpark is to multiply the medical specials times a number from ONE to FIVE (depending upon factors, some of which I will give you later—or all of which are fully discussed in the members' side of my website, dealing with insurance settlements www.SettlementCentral.Com ). Then that figure is the total value of the personal injury portion of the claim. Of course there is a long list of factors to consider for adding or deducting from the total.
Let's take a look just two factors that put the lie to the general use of this rule of thumb. An obvious one is that of the mental health issue that you mentioned. There may have been just low treatment costs per se, yet those dollars should be valued at more than office bodily treatment dollars since they would be for a significant interference with your life and well-being.
A second, not so obvious, but very important factor that shows how inaccurate a “rule of thumb” formula can be is just plain location of the trial. Let's start with geography. Values differ from state to state, and within each state. City values are often different than rural values on claims, especially if the economy is tenuous in small towns. And the differences can be HUGE between these areas, even if only 20 miles apart.
Here is a listing of factors that will affect both the multiplier you will use, as well as the value of the claim inasmuch as they will increase or decrease the product of your multiplication.
1. LIABILITY DISPUTE
This is a big one because it most dramatically affects value. You should NOT ACCEPT any reduction in value for fault.
PENALTY for socially-condemned actions, such as DUI, hit and run and the like. Your adjuster will not have this topic included within her computer-generated valuation software, but that does not mean you have to shut up about it. MAKE THIS POINT FIRMLY: a jury is going to have NO, ABSOLUTELY ZERO, sympathy for their insured. All sympathy will be on your side. So hit this in writing and insist that she consider it when making an estimate of value of your claim.
2. Trauma suffered
The value of your claim increases with a bigger crash, and decreases with a low damage tripping wherein one catches himself. Why? Just human nature. You had a hard trauma it sounds like. Perhaps a big hard fall, so this is a PLUS for your side.
3. Medical special damages
Cost of medical and related health care expenses; higher costs usually equate to an increase in value (excepting, of course, cases of gross overtreatment).
4. Type of injury
Where does the injury fall within the insurance industry's "hierarchy list" of valuing injuries? Irrespective of which injury may cause more pain, injuries are valued according to seriousness, tendency to be persistent or permanent, and whether or not they need objective proof to be believed (e.g. a broken bone versus soft tissue strain). Mental health issues can pay well if documentation from doctor records is good.
5. Type of medical care
Where does the medical care fall within the insurance industry's "hierarchy list" of valuing medical care? Orthopedists at the top, chiropractors near the bottom. Psychologists are also good.
6. Prognosis- future care—permanency of injury or pain and suffering—does your doctor recommend 6 months of care, or were you done treating 4 months ago? Even if you are done treating, will the doctor predict future problems?
7. Your medical and claims history, prior accidents, prior injuries or treatment of the same area of the body.
8. Impairment of quality of life. Emotional distress fits in here.
9. Quality and persistence of pain suffered.
10. Quality and thoroughness of her medical records.
11. Lost wages.
12. Probably a loss of relationship claim could be included here since your marital relations will suffer with that kind of pain and mental distress.
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#4. Learn how to write WITHOUT USING ALL CAPS
We are adding a page on use of attention to detail in communications with both the doctor and the insurance adjuster. Among the topics on that page is the use OF ALL CAPS by some insurance claimants. This is an irritating habit to adjusters, and although it is just a little thing, it says to them some things about the writer that are not positive.
Here is part of that future page to my website on the topic of writing:
The insurance claims adjuster usually does not have too much direct contact with the claimant in which she can judge credibility So your written communications are the only other way you really have in which to influence the adjuster with respect to your credibility.
How can one enhance or diminish credibility in the eyes of the insurance adjuster? Well, think about what YOU would like to see in a claimant if you were going to believe him or her and pay money on account of what he had reported to the doctor. . . . .
Add to that the flavor of someone who uses bold font or ALL CAPS, and the "me first in importance" syndrome would reasonably lead the adjuster to conclude that the patient is prone to exaggerate, shade, or "forget" in his reporting to the doctor. Thus, if you were the adjuster, you would see such communications keys as being important in evaluating both the credibility of the claimant, and the soundness of the doctor's clinical conclusions.
#5. Learn how to communicate with the insurance adjuster: FINAL TOPIC—COMMUNICATE IN WRITING AND "DEMAND" NOT "ASK"
FINAL TOPIC, Daniel: Effective communication with insurance claims adjusters. Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm
Always communicate with the adjuster in writing, showing your own analysis of value. It is OK I guess to have one call or so, but no more. Always have your information and ammunition in writing to give to the adjuster.
Let him know that you are FIRM IN YOUR RESOLVE to get what you are demanding (NOT "asking", since that invites a counter-offer, but instead "demanding" as fair and reasonable compensation) by asking him what the options are to resolve the matter fairly should he not agree to a reasonable claim value. In other words, let him know that you will go through with a court filing if need be.
Remember these tips, do your homework, print out your evidence, show resolve to get your fair settlement, and you will DO JUST FINE.
I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
---------- FOLLOW-UP ----------
QUESTION: Hi Dr.Settlement,
Thanks for all your feedback, it has been very helpful. I didn't hit my head during the accident. When I was hit, my knee got bent than I was thrown to the ground with momentum. This accident has affected my life so much and want to ensure I don't get cheated. My employer has accepted the accident as worker's comp, yet is treating me a little too nice.
I have been receiving temporary disability and all my doctor visits have been covered. I have seen a psychologist, whom has diagnosed me with PTSD and depression. I have gained weight due to this accident and my personal life has been greatly affected. At the hospital many employees have complained of unsafe conditions at the hospital. The day I got hit was employee appreciation day and the hospital had security directing traffic due to the volume of cars. They had taken a break in between sessions and that is when I was hit. I was on my lunch however, on hospital property.
My employer has accepted the claim as workers comp, yet states they are entitled to get their money back from the responsible party. Will this affect my claim? Isn't worker's comp it's own insurance? Is the hospital in anyway responsible for this? My adjuster (for the hospital) states she will help me settle my case. Are they helping me or themselves.? This accident has caused more employees to speak out at work. What if it would have been an elderly person or child that got hit. Should the hospital do more?
Thanks...sorry for all the CAPS.
AnswerHello again, Daniel,
Thanks for the great feedback. I appreciate that.
Here is the deal with workers' comp claims versus one's own employer: we made an agreement in ALL states to forego any claims for negligence versus employers in exchange for the security of workers' comp claims, UNLESS one can prove GROSS NEGLIGENCE. This amounts to a high degree of willful abandonment of any degree of safety. Your case DOES NOT meet that standard. Hence, you have no claim versus your employer for negligence.
And, in making that claim, all you will do is to undermine your claim versus the driver and your claim under your own UIM policy. As I stated, your own auto insurance will cover you as a pedestrian, including your UIM coverage.
Hence, NO, DO NOT MAKE ANY CLAIM OF NEGLIGENCE VERSUS YOUR EMPLOYER OR YOU WILL LOSE ANY RIGHT TO GENERAL DAMAGES (pain and suffering, loss of enjoyment of life, etc.)
Focus your claim solely upon the driver. The hospital WILL NOT be the one to carry the ball in that claim. All they are doing is to try to collect their subrogation versus the tortfeasor.
YES, your workers' comp payments are to be paid back from any recovery you make from the tortfeasor. You can read an excellent subrogation introduction http://www.settlementcentral.com/page0459.htm insurance claims information.
If you hire an attorney, then she can make a claim for partial payment of her fees for the amount she recovers in subrogation. But that is not certain. If you pursue this yourself, then you have the problem of trying to show how your mental condition has impaired your life, while at the same time appearing to be competent to bring a claim on your own.
Hence, I am now recommending that you DO NOT go alone on this. Your biggest element of damages is your mental and emotional damage, and hence you will need an attorney to drive that to a successful conclusion. She will tell the workers' comp adjuster that she will take it from here for the entire case. Then she will petition to get a reduction in subrogation equal to one-third of the subrogation amount.
I hope that this makes sense, since you may have a significant value to your claim from the PTSD, but you stand to lose or diminish that value if you are shown to the adjuster to be competent enough to bring your own claim. Hence, do not even consider joining my website inasmuch as you need an attorney if you are to get anywhere near full value.
I trust that my time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
