Recent Blog Posts in August 2009

You see distracted drivers on the road all the time.  In our fast-paced society, a distracted driver may be using an electric shaver, drinking coffee, eating a Big Mac, and reading a novel-all at the same time.  Nearly every motor vehicle collision is caused by inattentive drivers.

There is, however, a more sinister level of inattention that occurs when drivers text or email while driving.  Numerous driver studies conducted around the world rate the cell phone driver as equal to the fatigued, and in some instances, the drunken driver.  Emailing and texting is even worse. The New York Times recently published a report stating that people who text while driving are 23 times more likely to cause an accident.  Not only is the brain focused on matters other than driving, but the driver's eyes are also splitting time between completing the texting and the road.

In their first meeting with me, injury victims often mention that they have suspicions that the at- fault driver was on a cell phone or texting. This is an important piece of information that needs to be promptly investigated.

Why it's Important Information

A driver who simply makes an error in driving and accidentally causes an accident is viewed differently in the eyes of the law than a driver who willfully and with reckless indifference causes an injury accident.  Texting and driving is willful and reckless and can result in a court awarding heightened recovery to a victim.

Currently, only 14 states have outlawed texting while driving.  Colorado recently passed such a law that goes into effect on December 1, 2009.   We also have laws about driving with a willful and reckless disregard for the safety of others.  These laws can and should be used to hold these dangerous drivers responsible.

What Should Be Done?

An attorney acting in the best interest of his client should take immediate action to get to the bottom of whether texting or cell phone usage was the primary cause of the accident.  The only way to prove that the driver was texting at the time of the accident is to subpoena the cell phone company records. This requires filing a lawsuit against the driver, taking his or her deposition and learning the cell phone number and their service provider.  Lastly, the records from the phone company need to be reconciled with the timing of the traffic accident.

This above method is the only way to prove cell phone or text messaging caused a collision. Once the lawyer gets the information to support the "texting during driving" allegation, the appropriate next step is for the attorney to file a motion to amend the Complaint to add punitive (sometimes called exemplary) damages.

These cases should be treated just as seriously by your attorney as if you were hit by an intoxicated driver. Texting and driving is serious, it can be deadly, and a victim should be certain that his attorney is aggressively investigating these issues.

At ANDERSON, HEMMAT & LEVINE we understand the importance of these issues and are here to assist you.  As always, your initial consultation is free. 

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 I want to address the process of valuing an injury settlement. When I am contacted by a victim of an automobile accident, the conversation sometimes turns to the topic of valuing the case. In fact, every injury case undergoes the calculus of injury evaluation at some point. After all, at the end of the day, the only thing the law can do is to attempt to give injury victims back at least some of what they have lost. After a major injury accident, these victims often lose their careers, sometimes their families, and sometimes their long-term health. At the very least, an attorney has a duty to appropriately work up a case for a fair settlement. This blog will discuss the analysis that we go through to try to answer some of our clients' questions.

WHAT MOST PEOPLE THINK:

Pain and suffering, what lawyers call "non-economic damages," is usually what most clients assume constitutes the beginning, middle, and end of the injury evaluation analysis. In fact, I usually do not focus on pain and suffering during settlement discussions.  Pain is subjective, and generally, insurance adjusters pay it little mind unless there are significant economic damages (past and future medical bills, lost wages, etc). The pain is real, and the suffering can be excruciating, but valuing it for settlement is very difficult.  Typically, a case must have other "drivers" before an insurance adjuster will even consider the value of pain.  These are discussed below.  

"SPECIALS":  WHAT THEY ARE AND WHY THEY ARE SO IMPORTANT:

When I consider the value of a case, I think about what we in the industry call "specials." I am not sure of the origin of the term, but it basically refers to what makes the injuries unique and different from any other person who might be stiff or sore following an automobile collision. "Specials" are the past medical bills incurred by the client plus the value of what doctors are predicting the client's future medical needs to be, plus past wage or other economic loss, plus future wage or economic loss.  When I start a plan of action to maximize a client's recovery, I am always trying to think about what I would be saying about my client to a jury were the case to go to trial.

Calculating past medical bills is easy.  It is simply the total amount billed by medical providers for medical care to date.  Future medical care is a bit more complex.  It requires asking the treating doctor or other professional to provide a life care plan of what the patient is likely to need medically in a 1 year, 3 year, and 10 year time horizon.  Often, once the doctor details future care needs, including prescription drugs, future therapy, and other care over a future time period, we sometimes hire an economist to help value the future medical needs. For example, if a client is going to need a second back surgery in 10 years, we need to calculate how much money we need from the insurance company this year in settlement to assure sufficient money to pay for that surgery when it is needed.  That is a great question for an economist. Certainly, no one should start settlement talks in a major injury case without knowing the present value of future medical needs. We also frequently use an economist to assist us in valuing any future wage loss.  If a client has lost the ability to do his chosen profession, we will often retain a vocational rehabilitation expert to determine the cost of vocationally retraining our client.

Lastly, an often neglected consideration in valuing an injury case is the permanent loss of function or impairment of function. Many times, treating doctors release clients that have a permanent limp, or pain, or have permanent physical restrictions. At the end of the treatment, the doctor may simply tell the client, "you're going have to learn to live with it."  That is the definition of a permanent injury. But without asking the right questions of the doctor to ensure the permanent injury is documented, the client could miss out on substantial and well-deserved additional recovery.

THERE IS NO GOING RATE:

Contrary to what you might hear from some lawyers who do a high volume of cases, there really is no "going rate" for an injury. There are certainly ranges of recoveries for certain kinds of injuries. For example, cases with back surgeries have a range of value, while cases with only chiropractic care have another range.  Also, there are other factors that also drive the valuation of an injury (i.e. whether a client has extensive injury to the same part of the body prior to the accident, how the client would present in front of a jury, etc). 

The bottom line is that every case is unique.  A good attorney will make proper inquiry and document every aspect that can make a difference in the ultimate recovery for the injury victim.

Give us a chance to show you how we are different. We are available for home visits, evening appointments, and hospital meetings.  As always, our initial consultation is always free.

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So you get injured, it's not your fault, and you decide it's time to call a lawyer and get some advice.  The lawyer starts off very politely, almost likeable.  But at some point in the middle of the story, he interrupts you and mumbles the words "exclusive remedy."  Suddenly, he's less polite and not in the least bit likeable. Within minutes, he gives you some kind of mumbo- jumbo reason why he can't help you, and again, you think you hear the words "exclusive remedy."

In these circumstances, we are often that person's next call. This blog will try to explain what the term "exclusive remedy" means and hopefully will help you understand why finding the right lawyer is so important.

A) WHAT IS IT?

"Exclusive remedy" is a term that is found in Workers' Compensation laws.  At its core, it means that if your employer has workers' compensation insurance for its workers, then the only recovery an injured worker can receive for a work-related injury is through that workers' compensation insurance. That means that this worker cannot sue the employer for causing his injury.

For example, a customer walks into a furniture shop and steps in a large puddle of water on the floor.  He slips, falls, and breaks his ankle.  If need be, that customer could bring a district court lawsuit against the furniture shop that could end in a jury trial.  That customer could seek to recover past and future medical bills, past and future wage loss, money for permanent injuries, and, of course, money for pain and suffering.

Now change one fact from this example.  Assume that the person is an employee of the furniture shop rather than a customer.  Same company, same puddle…totally different outcome.  Assuming that the furniture shop has workers' compensation insurance for its employees, no district court jury trial is allowed under the law.  The employee's exclusive remedy is found in Colorado's Worker's Compensation Act.  The legal landscape is totally different.  Workers' Compensation insurance is supposed to pay for all authorized medical care.  It does not pay for pain and suffering and the verbiage used to describe past and future wages is called temporary total and permanent partial disability.

B) SO IS EXCLUSIVE REMEDY A BAD THING?

Actually, no.  Under the right circumstances, a workers' compensation case can provide very complete and competitive injury compensation.  In the "Results" section of this website, there are multiple examples of high-dollar recoveries we have obtained for workers' compensation clients.

C) WHY DO SOME LAWYERS GET RUDE AND LOSE INTEREST WITH YOU?

The reason is likely because you are a person injured on the job who is seeking to bring a claim against your employer or a co-employee you feel is at fault for your injury.  Under these circumstances, Colorado's Worker's Compensation Act is your "exclusive remedy."  Under other circumstances, a separate lawsuit can be pursued against a third party responsible for your work-related injury if that third party is not your employer or a co-employee.  There are lawyers who focus their practice on workers' compensation only.  My guess is they get a little grumpy with potential clients who want to pursue injuries beyond their comfort in the workers' compensation arena.  There are other lawyers who focus only on personal injury cases and know very little about workers' compensation.  If a person is injured on the job and has the right to bring a separate third party claim, many lawyers are unsure how to handle the interplay between Colorado's Workers' Compensation Act and the general negligence laws of our state. 

ANDERSON, HEMMAT & LEVINE, is a firm equally practicing in both the areas of workers' compensation as well as general personal injury.  Therefore, we can help you coordinate the benefits between the two systems. 

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There is a great deal of confusion about Workers' Compensation "exclusive remedy" situations. Let's try and make things a little clearer:

1) On-the-job motor vehicle accidents:

While this area confuses a lot of lawyers and injured people, this is not an exclusive remedy problem.  An injured worker can recover workers' compensation AND bring a lawsuit against the negligent driver AND recover from both sources.  Be careful though.  By law, some recovery that you get from the auto insurance for the at-fault driver needs to be paid back to the workers' compensation insurance.  The workers' compensation insurance carrier has what is called a lien against your settlement proceeds.  It's complicated should probably be handled by a professional.

2) Injuries on a job site caused by employees of different companies:

Again, this is not an exclusive remedy situation. An injured worker in this situation can make a workers' compensation claim AND bring a lawsuit against the company whose employee caused the accident.

3) Injured worker employed by a subcontractor and injured by the general contractor

This might seem like a non-exclusive remedy situation. But actually, pursuing a claim beyond workers' compensation DOES violate the exclusive remedy provisions.  Thus, this worker would be limited to the recovery outlined in Colorado's Workers' Compensation Act.

4) Injured worker employed by the general contractor and injured by a subcontractor

It's tricky, but this is not an exclusive remedy problem.  The worker can recover workers' compensation benefits and also sue the subcontractor.

5) Employee injury caused by employer and employer has no workers' compensation insurance

Colorado has special laws that let an injured worker pursue his uninsured employer either through the administrative process of workers' compensation or through a district court jury trial action.  In district court, if the worker proves even 1% negligence on the part of the employer the employee can recover 100% of the damages awarded by the jury.  This is a very unique feature of Colorado law that most lawyers don't know about.

D) CONCLUSION:

There are many situations involving workers compensation and personal injury claims where more than one claim can be pursued.  "Exclusive remedy" provisions prevent bringing separate claims under certain circumstances.

If the attorney you call about your problem seems short with you about your case, you are probably dealing with a lawyer who is not within his comfort zone and is probably "over his head."  The good news is that there are attorneys that practice in both workers' compensation and personal injury and welcome the challenge of the complicated interplay between these two areas. 

If you have been injured and treated unfairly, let ANDERSON, HEMMAT & LEVINE be your first call.

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