This article discusses general strategies and issues that serve as a primer for a dialogue between a client and his attorney. It is in no way legal advice for any particular individual's particular case and is by no means a substitute for one-on-one advice provided by an attorney.

In our last article we told you about the exciting new laws taking effect August 11, 2010.  The law now recognizes that if a health insurer or MedPay provider takes back the money they paid for an injury victim's medical care that may result in a shortfall of money needed to compensate the victim.  Essentially, this new law provides a road map and the tools necessary for knowledgeable attorneys to gain an advantage for their clients.

However with the coming of the new laws, astute attorneys need to consider changes in their strategy to gain advantage for their clients. This article is devoted to explaining more fully the "make whole" aspect of the new law, and strategies that need to be considered to maximize the advantages created by this new law.

A)     Why "Make Whole" Is So Critical To The Victims' Bottom Line:

The new law provides the opportunity for determination of disbursement BEFORE payment of any subrogation (money re-paid to an insurance company from proceeds of a personal injury settlement).  This new procedure allows people whose injuries are more significant to appeal to a tribunal that will determine if the injured party is too injured, even after receipt of settlement or judgment, such that paying back of benefits becomes adjudged legally not required.

So, even if the health insurance contract requires payback of medical expenses, this new law says there is an exception. There are three requirements that must be met for the exception to apply:

(1)  the lawyer representing the injured victim must file timely notice, and

(2)  the settlement or judgment must be insufficient to make the injured victim whole, and

(3) the health insurance company either fails to request arbitration within 60 days or makes such a request but loses on the merits of the arbitration. 

If these requirements are met, the injured person gets a pass on paying back the health insurer.

This new law could mean thousands and in some cases hundreds of thousands of dollars remaining with the victim. It could mean saving a family from losing their home, and could mean the jump starting of an injured victim's life again.

Keep in mind, this new law is ONLY applicable to matters settled or jury trials occurring after August 11, 2010.  Conceivably, outcomes of identical cases could be markedly different resulting in substantial lost opportunity and money IF a matter resolves the day before the changing law verses the day after.

B)     Change in Strategy:

Any attorney with a current case that has a trial date BEFORE August 11, 2010, which would otherwise meet the requirements laid out above should consider, by any means necessary, continuing that trial till after August 11.   It should be noted that such a maneuver could have the affect of delaying the resolution of the case. So, for that reason, the lawyer should have a detailed discussion with his client about the benefits and consequences of move a trial date.

Additionally, a settlement reached on a case before August 11, will operate under the old rules. While, a settlement reached after August 11 will be subject to the new law. Accordingly, for the best interest of an injury victim, delaying settlement might serve to substantially benefit the victim, and certainly needs to be discussed as an option with the client.

C)    Conclusion:

Getting a resolution for a client is the goal of every good attorney working in the area of personal injury. But, on some occasions there is the choice between doing something fast, and doing something correct.  With the "make whole" doctrine being recently codified, fast may not be the best way to resolve matters at this particular time.

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At ANDERSON, HEMMAT & LEVINE, LLC, we work hard to make sure that we are current on our understanding of Colorado law so that we can maximize the benefits of the law for our clients.  If you have questions about how recent changes in the law could affect your case, please call and speak with one of our attorneys today.

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Having helped thousands of people who have suffered the physical and emotional effects of motor vehicle accidents, we are aware of the all too common causes of motor vehicle accidents. In our experience, there are six general categories of driver conduct that result in more than 90% of all car accidents. We hope that listing what we see as recurrent root causes of these collisions will help people to recognize similar behavior and avoid becoming another statistic.  This article identifies these causes and will make practical suggestions to help you avoid a collision.

1)    INEXPERIENCE:

Young drivers cause a huge percentage of accidents.  This seems to be due to inexperience or perhaps a naive misunderstanding of just how dangerous a vehicle can be. Compounding inexperience is the all too common occurrence of multiple young people getting in the car together. As a driver, concentrating on the roadway as well as trying to maintain a conversation with passengers can be difficult at any level of experience.  Placing a young driver in that position is particularly deadly.

SOLUTION:  Educate your children as to the dangers of driving, and insist that the young drivers in your house have the proper level of maturity to take on this responsibility before they are permitted to use the family car.  Just because Colorado says your child can drive does not mean you have to let them do so until you feel comfortable that they are ready.

2)    TEXTING:

If inexperience on its own is bad behind the wheel, texting in combination with inexperience is downright treacherous.  While texting is a popular means of communication amongst the young, e-mailing/texting and driving is certainly not limited to simply the young. There is no tolerable level of texting and driving, regardless age or experience.  There are only two types of texting drivers: (1) those who have already caused a major motor vehicle accident and (2) those who are going to.

SOLUTION:  If you cannot help yourself, put your phone or e-mail device in your trunk while driving.  After a while, like putting on your seat belt, you will get in the habit of not having it next to you while driving and everyone around you will be safer.

3)    ALCOHOL:

Alcohol slows our response time, makes you sleepy, and also makes you daring. While people stoned on marijuana tend to get sleepy and hungry, people who consume alcohol tend to want to drive.

SOLUTION:  Develop a zero tolerance for yourself. Are you okay to drive with just two beers or three beers?  No!  Promise yourself that if you drink alcohol you'll either stay where you are, get a ride from a non-drinking companion or take a cab.  There is simply never a reason to risk a DUI or a major motor vehicle collision.

4)    FATIGUE:

Scientific evidence and medical doctors tell us that adults need to sleep between 8 to 9 hours a night.  However, studies show that American adults sleep around 6 hours. Colorado is full of people who work too hard, deprive themselves of sufficient sleep, and spend longer than most people in other parts of the country in their cars. Naturally, vehicle use and sleep deprivation result in drowsy and sleeping drivers.

SOLUTION:  Make it a goal to sleep no less than 8 hours a night.  Turn in 2 hours earlier than usual. Try that for a week and you will be hooked.  Sleeping more will mean less fatigued driving and therefore safer driving.

5)    INATTENTIVENESS:

Ever witness a lady in the vehicle next to you talking on her cell phone while eating an Egg Mc-Something and applying makeup?  Ever see a businessman on the phone, reviewing a file, and driving 75 miles an hour? Ever see anyone reading a book while driving?  These are all true examples of inattentive driving.  However, there are more subtle versions of inattentive driving which we frequently hear about as excuses for accidents, including, reaching for a cell phone that dropped between the seats, spilling coffee, or a driver being lost. Police identify inattentiveness as the number one reason for car crashes in Colorado.

SOLUTION:  Simply reduce your activities in the car. Remember, you can always pull over. Every time your mind is on something other than the road, you are guilty of being an inattentive driver. It's dangerous out there, so pay attention.  It could save your life.

6)    SPEED:

Statistics on the benefits of seat belts are rarely mentioned in accidents involving speeds of 65 mph or greater. The reason is that there is nearly no appreciable difference in survival between belted and unbelted occupants at speeds above 65 mph. Basically, at those speeds, belted or not, most everyone dies. It is true, "speed kills."

SOLUTION:  Slow down! Driving at 50 mph verses 70 mph over the length of an average commute shaves only 2-3 minutes off the travel time.  But by slowing down, you actually give your seat belt a chance at saving your life.  If you are late for an appointment, putting yourself and others in harm's way by speeding will change nothing.  You will still be late. Slow down and live.

CONCLUSION:

These simple observations we have shared with you can dramatically improve your likelihood of arriving to your destination safely.  If each of us would implement them in our driving, Colorado certainly would be a safer place to live and raise our families.

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At ANDERSON, HEMMAT & LEVINE, we hope that you will make it to your destination safely.  However, should the negligence of someone else cause you to be injured, we are here to help.  Please call us today if you would like to discuss your case.

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This article is a reflective look at the generalities of our successful trial recoveries. After nearly 20 years of trial work, there are certain statements which I can make regarding this subject with a high degree of comfort about its accuracy.

The first general statement I am confident in making is that the character of the litigants to a case, that is the character of the injured plaintiff and the at-fault defendant, are far more central to the outcome of a trial, than any particular attorney involved in the process.

The second general statement I am confident in making is that, in the area of personal injury, it is far better to have a great plaintiff (the injured victim whom we represent) than a very obviously despicable defendant (the person who caused the injury / person we are suing). The combination of both is ideal. But, given a choice, I would take a great plaintiff every time. 

There is a type of case and specifically a type of client, as well as a couple of time-honored rules in the presentation of these cases that I have witnessed time and time again result in great jury awards. So, the question that we will attempt to answer is:  What made these clients and their cases winners in front of a jury?

1)  HONESTY:

This more than anything makes or breaks a case.

A completely truthful plaintiff is ideal. Any untruthful or dishonesty in a plaintiff becomes intensified, even amplified by defense counsel.  Furthermore, consider the magnitude of the jury responsibility. The jury is being asked not only to accept as true the story told by the plaintiff, but even more difficult, being asked to award money to that person. This is a tall order, under most any circumstance. To that end, if a jury is given anything that it can process as attacking successfully the plaintiff’s character for honesty, regardless of anything else, it is “game, set and match.” This trial is over, plaintiff will lose.

That is true, even when the at-fault defendant is proven to be a liar, as well.  Perhaps surprising to some, juries are far more concerned about the honesty of an injured plaintiff than as to whether the at-fault defendant is honest.  See, in the juror’s mind, the defendant may have a character for untruthfulness, BUT, the defendant is not asking for money. The defendant is simply asking for the status quo. The defendant and his lawyer are asking for nothing more from the jury than it to do NOTHING.

Alternatively, the jury perceives, rightfully, that the injured plaintiff is asking for them to affirmatively act to changing the financial circumstances of one of the parties.  Often, the jury is under the mistaken illusion that money being awarded to plaintiff is actually coming out of the pocket of the defendant.  In actuality, that is nearly never the case.  Invariably, the at fault party has insurance, whether it auto insurance, home owners’ insurance, or some other kind of insurance that is footing the bill for everything for this at-fault defendant from his attorney’s fees to any ultimate award paid to the plaintiff. 

The reason why the jury hears nothing about insurance is because there is a Colorado Rule of Evidence that precludes the jury being told about insurance. The rule was designed to keep a plaintiff’s attorney from simply persuading a jury to award lots of money, “after all it’s just the insurance company’s money, anyway.” However, the evidence rule as written allows a defense lawyer to act like his client will pay out of pocket any award. Some states, such as Wisconsin, have recognized the confusion that this might create for a jury, and how insurance defense attorneys exploit it, and have changed their evidence rules to allow the jury to be told about insurance. Colorado has not, as of yet, evolved our laws to this point.

As a consequence, some jurors look extra carefully at the plaintiff because they view their job as changing the financial fortunes of both combatants.  However, changes in the laws of other states aside, the honesty of our injured plaintiffs is hyper-critical to ANY successful jury outcome.

2)  ACCIDENT/INJURY NEEDS TO MAKE SENSE TOGETHER:

The jury is often being asked to play the role of a CSI investigator. We show an auto collision. We then show certain injuries at the scene.  Next we show follow-up treatment thereafter, and hopefully the absence of anything similar in the plaintiff’s past.  We then basically hope to look at the jury in closing argument and say something to the effect of, “it makes sense, doesn’t it?”

The problem is sometimes it really doesn’t seem to make much sense.  The crash looks too small, the injuries are not well reported at the scene, treatment follow-up was spotty or there were large gaps in care, and of course perhaps there are other things in plaintiff’s past that might better explain these injuries than this crash.  Left unchecked, that is a recipe for a jury verdict in favor of the defendant.

Making sense of the accident and the subsequent injuries, if it is possible to do so, is truly the job of a good lawyer.  Of course, sometimes, accidents and injuries are simply impossible to coordinate regardless of attorney efforts.  However, having time lines to establish treatment before versus after a collision, bringing primary care doctors and therapists in to trial to discuss the plaintiff’s prior good health, and including the often overlooked friends, neighbors, and close family to discuss “then versus now”, all assist in helping a jury piece together and make sense of the accident and the associated injuries.

3)  NO OVERREACHING:

This is a sub-category of perceived client honesty, but is often the part that a good attorney can control.  You can have a straight-shooting plaintiff, and an injury and accident that make sense and STILL lose the case.  What happened? Perhaps, the jury got the feeling that they were being taken for a bit of a ride.

Here are some examples of overreaching: A person who didn’t work before an accident gets up and asks for an award to include wage loss. Alternately, a person with a healed broken bone and no supporting evidence of permanent injury, asks the jury to award a large sum of money for their permanent restrictions.

A jury can be completely supportive and willing award a plaintiff a reasonable amount of money then hear a moment of overreaching, and suddenly be completely poisoned against the plaintiff.

I rarely blame an injured plaintiff for overreaching. The job of the attorney is to counsel and if something would look like overreaching it needs to be identified early in a case and if at all possible eliminated as a claim so as to avoid the souring of a jury.

Overreaching by a plaintiff is responsible for far more bad verdicts than bad fact witnesses, insurance company doctors and clever defense attorney cross examination.  In other words, we as plaintiff lawyers often bring this one on ourselves. We need to face facts that juries can spot overreaching and will punish the plaintiff every time.

CONCLUSION:

Every case has warts, that is to say, there is no perfect case.  Between issues of liability, causation and damages, the defense lawyer will always have something to talk about. And, defense lawyers are awfully good at exploiting the weakness of a particular case.

However, empirically, there is a certain type of individual who by their nature hold up quite well in front of a jury.  A truthful, straight-shooter type plaintiff will generally project their honesty. That in turn, will limit the opportunity for defense counsel to suggest untruthfulness in character, and with that we are 3/4th the way across the finish-line. 

The remaining 1/4th necessary to a successful jury outcome requires the accident and the associated injuries be presented in a way that makes sense from a cause/ effect standpoint. 

And lastly, the award sought has to be reasonably tied to provable losses. The expression pigs get fat and hogs get slaughtered is never more true than in front of a jury. Overreach on damages, rest assured the outcome of the jury verdict will be less than optimal, if not a devastating loss.

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At ANDERSON, HEMMAT & LEVINE, we have the trial experience to help you avoid these pitfalls and counsel you how best to present your case to a jury.   Call us today to discuss your case with one of our trial attorneys.

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Most every client I have ever represented will tell you my favorite expression: "It isn't how much money you settle for that is important; it's how much you get to keep."

This article is devoted to helping you keep the very most possible amount of your personal injury settlement, as well as to answer some of the most commonly asked questions we receive about settlements.

A) Is it taxable?

You should always consult your tax advisor on all issues pertaining to taxes. However, generally personal injury recoveries ARE NOT taxable.

B) Do I owe any of this settlement money to anyone?

To fully answer this questions there are a couple of variables that have to be considered. First, what paid for your medical care?

• If it was Medicare or Medicaid then YES.

They have a very strong lien and it is you or your attorney's obligation to get to the bottom of what they are owed. They are somewhat negotiable, but rarely will they take anything less than 70% of their stated amount expended on your behalf.

• If Health Insurance paid, then the answer is: It depends.

   1.  Does the policy require you to pay them back? This is called their right of subrogation.

   2.  Even if the health insurer has policy language that requires you to pay them back, have they put you on notice of their intent to be paid back?

   3.  Lastly, even if they have done everything correctly to properly preserve their right to subrogation, understand that these companies are often very negotiable as to how much they will accept less than full amount. We can often get health insurance to take 50% or even deeper cuts depending on the circumstances.

• If a Hospital was involved in your care, and there was not a payer source, it is likely that there is a hospital lien that has been recorded with the Colorado Secretary of State.

These liens are very serious and they do not even have to tell you that they recorded a lien. If you settle and fail to resolve the hospital lien, they can and likely will sue you not only for the medical expenses but also for attorney fees based on your infringement of their lien. These hospitals are often quite negotiable, but you have to deal with them early after settlement.  If you can help it, the time to negotiate with your hospital is NOT after they sued you.

• If your own automobile insurance paid for your medical expenses, through your MedPay coverage, then the question of whether you have to pay it back is largely a question of when your auto accident occurred.

If your collision occurred after January 1, 2009, by state statute, your auto insurance company IS NOT entitled to be paid back AT ALL from any settlement proceeds. If however, your accident was in 2008 or earlier, your insurance company would have a right to pursue subrogation.

C) Who needs to deal with these post-settlement issues?

If an attorney settles your case, that attorney should take responsibility in handling these post-settlement matters.

From my experience the quality of legal work and the tenacity in the post-settlement negotiations really separates the men from the boys. At Anderson, Hemmat & Levine, we look at our job, as it relates to getting our client as much of the settlement as possible, as yet another way of building good will with our clients. The amount of settlement dollars we deliver to our clients is a point of pride and even bragging rights for us.

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At Anderson Hemmat & Levine we recognize and live by our motto "It isn't how much money you settle for that is important; it's how much you get to keep." Let us put that motto to work for you by calling us today.

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In every trial, there is a winner and a loser. Great attorneys lose trials. There is, however, a distinct difference between a good attorney giving it a noble effort and still losing versus an attorney losing a client’s case due to neglect or incompetence.  At Anderson, Hemmat, & Levine, we have no problem calling it what it is–legal malpractice. We are not members of a “boys club” and have no worries about how we might be viewed by those colleagues who would turn a blind-eye to gross legal error. We prosecute lawyers with the same level of professionalism and skill as we do any other negligent party.

When we are called by people claiming legal malpractice, we must determine whether the attorney’s professional conduct fell below acceptable standards of care.   That is much different than two attorneys merely having a different strategy or differing reasonable legal opinions.  Basically, we look at whether the attorney took a winnable case and fumbled so badly that few, if any, attorneys could find an excuse for that level of error.  If it sounds like it is hard to pin a malpractice action on an attorney, well–it is.  In order to win a malpractice action, you have to prove basically that the case would have been won if the lawyer had not made a mistake.  That requirement is called “proving a case within a case.”  You must prove BOTH that the lawyer breached the standard of care AND that your underlying case was a winner. 

Some examples of classic legal malpractice may be the following: a legal action being dismissed because a lawyer failed to file suit within the time prescribed by a statute of limitations, settling a case without proper consideration of the true value of the loss, or, of course, general incompetence.

Over the years, we have represented several clients with very significant legal malpractice claims.  One claim in particular involved a brain-injured lady who was pressured by her attorneys to settle for much less than the case was worth. What made this case so clearly malpractice was that this lady was profoundly brain-injured and lacked the mental capacity to make a rational decision. When we took that case to trial, the jury was outraged at the negligent attorneys and expressed their anger with their jury verdict.

We have also represented clients whose cases were fumbled by attorneys unaware of the time-sensitive governmental notice that must be filed when a client is injured as the result of the governmental entity or employee. Generally, the negligence of the attorney in these cases is quite obvious. However, when these lawyers are defended for their negligence, it is always amazing to see how many different ways they try to rationalize their lawyer-client’s conduct. Blaming the victim is usually step one, suggesting that the case was a loser despite the attorney’s negligence is usually step two.

At Anderson, Hemmat, & Levine, we view prosecuting legal malpractice as important.  Attorneys have an obligation to act with due regard for the people they represent. When an attorney breaches his obligation, not only might a client lose a case, but it is also a breach of the public trust.  Our role in these cases is to defend and restore the public confidence.

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Last week, I listened to top American and Japanese executives express remorse over the defective gas pedal acceleration issue which appears to plague nearly all of Toyota's recently built models.  It got me thinking about how this story developed.

A PATTERN

Some years ago, a small number, but remarkably similar, complaints were reported by Toyota owners.  These complaints included sudden acceleration, braking delay, or both, resulting in injuries and deaths.  Over the next several years, I must have talked to half a dozen or more people who personally reported that they themselves or a family member had an unexplained acceleration or failure of the brakes in their Toyota, resulting in an automobile accident.  However, Toyota claimed to be investigating each alleged occurrence with impressive black box data, and a team of well-qualified scientists and engineers.  In actuality, Toyota used fancy engineering terms in denying the existence of any problem and cited driver error as the plausible counter-explanation for the wreck.

AN APOLOGY

Despite spending years insisting that these problems were mechanically impossible, in the summer of 2009, Toyota announced that the driver's car mats in certain models "may" be causing "the problem."  But in an even more provocative move, last week, Toyota announced that a recall was necessary of many models to add a component to the accelerator pedal to address what Toyota now calls a "stickiness concern" related to the gas pedal which "might" over time cause the vehicle to "unexpectedly accelerate."

A RECALL

On the Today Show early last week, the United States Division President of Toyota, Jim Lentz, expressed remorse for the problem which he claimed only became known to the company in October, AFTER announcing (perhaps erroneously) that the floor mats might be the culprit.  He said it was more likely that a missing component to the gas pedal either in addition to the floor mat issue or separately  "might" be causing or contributing to the "stickiness."  He went on to identify (without seemingly blinking even once) that it could NOT be an electrical problem causing this "sudden acceleration, or delay reported in brake response" as there are fail safe systems on top of fail safe other systems that prevent this from being caused in the electrical system.  Of course, later in the week, the grandson of the founder of Toyota, CEO Akio Toyoda (yes, the company changed its name slightly from it's founder in the 1930's) expressed his remorse to his customers.

Most recently, Toyota announced an additional concern with the "software" in the Toyota Prius and Lexus Hybrid which also might explain the delay in brake response in those vehicles.  So, accordingly, Toyota drivers can take comfort in the fact that it is "not the electrical system," but instead perhaps a software glitch that explains these many injuries and deaths in addition to floor mats, and a sticky accelerator, that Toyota has been denying the mechanical viability of for years.

Thus far, United States media reaction has been consumed with the nature of apologies from the corporate officers and how unusual it is for a Japanese executive to make such an apology.  However, when the shock waves of these concessions pass, I expect to hear words like corporate conspiracy, fraud, deception, and finally criminal prosecution.

LESSONS FROM HISTORY

These events cause me to recall my very small legal role in a famous case against General Motors ("GM") from the 1980's.  Back then, it was discovered that GM had learned that its 1970's model van had an automatic transmission that would, without prompting, slip out of park and move into reverse. This resulted in unattended vehicles, often with engines running, becoming very dangerous safety risks for anyone in the proximate vicinity of such an occurrence. In fact, fire and police agencies were regularly reporting such events for years before any acknowledgments were made.  Each was met with an official denial of fault.

However, even at the time of these well-explained and what appeared to be plausible engineering-based denials of responsibility, GM was aware of the genesis of the problem and the safety risks associated with it.  As I recall, the cost for the proposed fix was about $15 per vehicle. GM, despite being aware of the risk of human lives being lost or destroyed, felt the cost of the fix was simply too expensive.

Some years after that unfortunate decision, I remember meeting a 23-year-old mechanic who was one of many who suffered the effects of GM's secret. That young person was paralyzed just below the jaw.  GM's secret cover up stayed secret until the lawyers I worked with uncovered the deceit. The evidence that exposed what GM knew and when they knew it came out of masses of documents turned over by GM after the Court ordered them to produce the documents.

Being a student of history, I am reminded that the Ford Pinto had a known tendencyto explode on mild rear impacts.  Futhermore, Ford's knowledge of the problem was so complete that they had internal documents that made an actuarial assessment that it would be cheaper to pay the few surviving victims who had the  guts to sue AND who managed to find a lawyer that had the smarts to discover the KNOWN problem than it would be to fix the problem and make the car safe.  Again, documents stated all of this clearly and they were discovered through court-ordered document production.

THE GAME CHANGERS

With companies building unsafe products who then hide behind branding, advertisement and public relations firms, I am left wondering how it is possible that trial attorneys ever managed to get such sinister reputations in the pool of public sentiment?

Fundamentally, what separates mega companies like Toyota from others (particularly trial lawyers) is their financial ability to hire Madison Avenue advertisers, public relations firms, and defense lawyers and their ability to spend generously to commission well-controlled studies with well-controlled results that can then be published as "facts." 

But what gives the public a chance at invoking real corporate change and responsibility is the trial lawyer.

When the last chapter is written on Toyota and this "unwanted acceleration/delay in brake reaction" scandal, in my view it will be determined that hundreds of people needlessly died, thousands of people needlessly were injured and it will be the trial attorneys who will bring to light the full extent of this scandal.

Furthermore, while Japanese companies are fond of claiming in US product liability litigation that they maintained no engineering vehicle testing documentation, it will be these trial lawyers and the court orders they receive granting document production that will prove the full extent of Toyota's breach of public trust.

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While driving safely is always a start, car manufacturers prove time and time again that if given a chance to make money and breach the public's trust, they will. Truly, driving safely is simply not enough to assure safety.

At ANDERSON HEMMAT & LEVINE we look forward to speaking with you about these issues.  If you have concerns about the safety of your vehicle and are hurt as the result of someone else's negligence, please call and speak with one of our attorneys today.

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Part 2: DURING THE CAR ACCIDENT

 A. Not Calling The Police

After the car crash, never, and I mean never, agree to not call the police.  Police investigation is critical. After an accident, the at-fault driver will often tell a sob story and appeal to your sense of goodness and kindness.  This is a classic mistake. Even in the clearest of accidents–say for example, a rear ender–letting the at-fault party leave the scene will  virtually assure that the at-fault driver WILL fix his story after talking to his insurance company and perhaps an attorney. The at-fault party will often minimize the accident in an attempt to lessen his responsibility for it.  This will mean more difficulty in getting your car repaired, more time arguing with insurance people, and certainly more headaches in getting the insurance company to take responsibility.  Don’t do it!  Insist on calling the police.  If the accident occurs during a weather “accident alert,” insist that the at-fault driver write a signed statement for you at the scene ADMITTING to causing the accident.  At the scene, the at-fault driver is sorry and will likely do anything you ask.  Later, they “lawyer-up” and they start rationalizing their conduct. Within days, they will have firmly convinced themselves that they did nothing wrong.  A police report or a signed statement (when the police will not come to the scene) is mission critical, every time.   Failing to call the police in an attempt to be a “nice guy/gal” is a mistake. 

 B. Not Seeking Care Immediately:

 There is a well-recognized euphoria that comes over people who have just experienced an automobile accident.  It seems to set in after the immediate shock of the accident subsides.  Adrenaline is pumping, the victim looks at his destroyed car, the police arrive, witnesses start to gather, and the victim answers the “are you alright” question multiple times.  Suddenly, a euphoria sets in as the person realizes “I’m alive. I walked away from this incredible crash. It’s a miracle. I am invincible!”  Because of this, many people refuse medical attention at the scene.   

However, immediate care is really important.  It is important not only for your physical well being, but also, to show the legitimacy of your collision to the insurance companies involved.  Except in the case of the smallest of fender-benders, you should insist on being evaluated emergently, even if at the moment you don’t feel pain. Most people injured in auto accidents do not start feeling symptoms until around 72 hours after the accident.  Of course, you must be truthful.  Explain to the authorities that you are shaken up, you are not sure whether you are hurt or not, but you would feel better if you were evaluated by medical personnel.  If you do refuse an ambulance, at the very least, have someone drive you directly to the hospital.  Not seeking immediate medical attention is a mistake. 

C. Not Getting Names of Witnesses:

 Getting the names and telephone numbers of eye witnesses is critical. You should do this even when the police show up to the scene. Do not assume the police officer will do his job well.  Police generally hate the investigation and paperwork involved with auto accidents. Some are very good at it. Some are not. If you become aware of witnesses, get their names and telephone numbers. People assume police correctly document the witnesses information. But in reality, they often do not.  Failing to get any witnesses’ name and number is a mistake. 

 D. Not Taking Photos:

Photos of the vehicle and the scene of the accident can often assist in determining how the crash occurred and the severity of the impact.  Keep a camera in your car.  If you are able, take plenty of pictures after the accident.  Assuming that someone else will take pictures could cost you in the long run. 

At ANDERSON, HEMMAT, & LEVINE, LLC, we want to help you avoid the all too common pitfalls that can adversely affect your medical, legal, and financial future.  The next blog will focus on mistakes made after an auto accident.  As always, if you have questions, feel free to call us for a free appointment.

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Workers’ Compensation Reform – a Case Study #1:

Approximately 15 years ago, Colorado had an opportunity to pass a voter initiative called “The Safe Workplace Amendment.”  On its face, this amendment to the Colorado Constitution was not controversial.  The initiative simply stated that if an employee was injured directly as a result of a dangerous condition neglected or initiated by an employer, then an employee could elect not to be limited by Colorado’s Workers’ Compensation system and instead could choose to bring a district court lawsuit, including the right to a jury trial, against the employer who created the unsafe condition.

From the worker’s point of view, it granted a chance for a disabled worker to achieve more complete compensation for a life time of future care.  For the Workers’ Comp insurance companies, it would lessen the occasions when strained resources were devoted simply to mitigate blatant acts of negligence that “Errors and Omissions” insurance should have to cover by overtly irresponsible employers. Seemingly a “win-win” right?

But ultimately the initiative was soundly defeated by Colorado voters

So … What Happened?

T.V. commercials sponsored by huge out of state insurance companies basically lied to the public in ad after ad about what this initiative was really about.  They deceptively made it look like it was a trial lawyer’s idea of paradise–a complete fabrication of facts, mind you, but the commercials were sure scary and convincing.

Workers’ Compensation Reform – a Case Study #2:

Some years later, another seemingly non-partisan issue was placed before Colorado voters during a general election. This initiative called for changing the Workers’ Compensation system rule that allows insurance companies to select the doctor with which an injured worker must treat after a work-related injury.   It would have changed the rule to permit the injured worker to select his own physician.

For the injured worker, this initiative seemed to be more consistent with other Colorado injury and insurance laws.  For instance, in motor vehicle or slip-and-fall cases, the insurance company doesn’t have the right to control the doctor under which an injured person treats. For the more conservative amongst us, employers selecting the injured worker’s doctor sounds like Marx’s view of utopia and must be changed.

But again, on election night the measure was decisively defeated – so much so that no legislature has even talked about the issue in public in the last ten years.

So … What Happened?

Large Out-of-State Insurance Companies hired an advertising agency to create a clever commercial suggesting that if the initiative passed, workers would be treated by spiritual healers and witch doctors with swinging pendulums and turbans.  They then ran this ad on nearly every Colorado television station for 60 days – all day and all night.

The Colorado voting public, including an overwhelming numbers of labor workers, ultimately voted that they would rather have an insurance company select their treating physician for their serious job-related injuries rather than have the personal right to select their own doctor.

If I had ever thought of running for political office, on that night that ambition died.

Lesson Learned?

Big business, advertisers, and Karl Rove-like spin-doctors vastly dominate over the one-man/one-vote myth.

Health Care Reform

Now comes a proposal from a new administration whose idea is neither new nor on its face controversial.

We are a nation of 300 million.  But, a recorded 1 out of 6 of us do not have any type of health insurance.  The Universal Health Care Initiative simply calls for those currently not insured to be placed on a government sponsored medical insurance plan, similar to Medicare, so as to bring the nearly 50 million of our nations uninsured into a system of coverage.

Is this a novel idea from the charismatic young Obama? Nope.  England, France, Ireland, Canada, Sweden, Holland, Japan, and at least 30 of the world’s top developed countries have such a system, each with their health care systems dating back 50 years or more.  With little exception, each of their economies are either on par or currently better than ours, their taxes are on par or less than ours, and on average their citizens live 3 to 5 years longer than ours.  So, passage of such a program would be a huge step forward for at least 1/6th of the public, who are currently uninsured, and would put us once again on par with nearly every other developed country on this planet.

What About the Cost?

Even when looking at this proposal from a fiscal conservative point of view, the same conclusion is reached: the current costs of our health care system are overwhelming and excessive; the cost to do nothing is much greater than doing something.

1.         Unpaid hospital/medical bills are the single greatest explanation of individual personal bankruptcy in the United States. This has been true for more than 30 years and contrary to what some might suggest wholly eclipses the sub-prime mortgage issues and the statics show that is isn’t even close.  Over 60% of all bankruptcies are due to staggering medical costs.

2.         Hospitals in the United States are largely at or near bankruptcy due the strangling debt they carry of uncollected medical treatment charges which are incurred by the uninsured.

3.         Medical students choosing careers in Family Practice, once considered the cornerstone of success and the single most needed sub-specialty in America, are at an alarming record low. These days Family Practice is a euphemism for poverty medicine.  Students with $300,000 plus of medical school loans know that they will never be free from this debt if they have to deal with the sheer volumes of slow-pay or no-pay patients.

4.         America has largely sacrificed the ability to establish a doctor/patient relationship with a physician who can work with his patient on preventive medicine (as they do in nearly all other developed nations) in favor of picking up McTreatment from a Doc-in-Box (and usually actually a nurse to boot) in a poorly facilitated  Urgent Care facility.

5.         Less healthy people in America means more disabled workers leaving the workforce earlier, and burdening an already overburdened Social Security system. Lesser supplies of healthy workers, means prime workers can demand greater wages and benefits, and that reduces corporate profit margins.  Accordingly, suddenly, after decades of total dominance, our US labor workforce is not competitive with workforces in other countries. That causes jobs, resources and money to hemorrhage out of the United States for parts unknown.  In turn, that hurts our bottom line and jeopardizes the United States’ continued standing as a 1st world economy, let alone a Super-Power (words that are rarely uttered internationally when referring to the United States).

So, looking at the proposal, its non-uniqueness, its business sensibilities, and its empirical success as a world wide health care model throughout the world since the end of World War II, there is nothing about this proposal that anyone should be opposing, right? Wrong!!

Similar to other home-grown encounters with Karl Rove-like tactics, our Colorado airwaves are beginning to be saturated with commercials equating the Health care initiative with Communism, Nazis, and even suggesting that “death panels” will decide who lives and who dies.

I can’t help be feel like I’ve heard this sort of clever and yet fictitious version of facts before. These commercials are, not surprisingly, sponsored by lobbyists hired by insurance executives who like the current system where they hold all the cards and are trying desperately to make this non-partisan issue “Barrack Obama’s Waterloo.” That’s a quote from one of them! This to them is only about politics and the suffering masses are again not even a consideration.

Now, putting all of these lofty public policy issues away for a moment, I have practiced law in Denver Colorado exclusively devoted to issues involving injury, health care, and future medical needs starting into my 19th year. With daily experience in the trenches, I have some commonly accepted notions amongst everyone who sees what we see that I wish to share with the Colorado voters.

What I’ve Seen and What We Know:

1.Statistics of the Uninsured

Nationally the statisticians are saying that around 50,000,000 people (1/6th of the US population) are without health insurance. So, with an excessively busy legal practice devoted solely to injury law in one of the least economically effected upwardly mobile markets, what percentage of my clients would you figure have health insurance? 90%? No. 85%? Nope. The answer is 50% – just half of them.

In fact, often times the majority our new clients coming in the door hoping to recover from injuries have no insurance. So, conservatively I tell you half the people that we service are members of families with no health insurance whatsoever.  So, are the US statics accurate? I truly believe that the representation that merely 1/6th (50 million) are without health insurance is excessively under reporting the problem.

2.Level of Care for the Uninsured

When we represent clients who have no health insurance, we recognize that often the treatment they will receive is likely to be compromised if not substantially compromised.

Doctors concerned about getting paid will identify the need for an expensive diagnostic test or even a permanent disability avoiding  surgery and then in the next paragraph of their report release the patient due to lack of health insurance.

These patients have greater delays in getting care, they have more days off without pay from work, their health care charges are always excessively greater than a similar patient with insurance, and  are exceedingly vulnerable to ending up filing personal bankruptcy. They are overwhelmingly more susceptible to parasitic cash advance loan companies, exposed to more occasions of medical charge billing fraud, and much less likely to ever regain their pre-accident physical health than clients with health insurance.

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Perhaps my experience is rather limited. After all, our firm has only represented many thousands of Colorado’s most injured. My generalities emphasized above are not really sweeping and emotional statements. In fact, I actually cannot think of a single client without health insurance who ever ended up better off, i.e. financially more compensated, healthier, etc., than a single client who had health insurance. There might be an exception here or there, but I am certain that any attorney would be hard pressed to present a situation where an injured person was better off without health insurance.

For people like me, in the trenches every single day fighting for my injured clients’ rights and trying desperately to get their families financially back from the Hell they often suffer following an injury to a breadwinner, this is not a political issue. This is not a judgment call. Reasonable opinions cannot disagree.  This is a matter of correct vs. incorrect.

Simply stated: To let the insurance industry continue to control our minds through clever, but factually bankrupt commercials predicting the doom and gloom to follow universal health care, is just wrong.  It is time to bury the Karl Rove-like tactics that have allowed nation after nation to gain advantage over us, and universal health care needs to be passed this legislative session.

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We are providing a link to proper advocacy groups that we have no affiliation with whatsoever, but to whom you can let your voice be heard.  The legislature needs to hear from you even as they are being hounded by the insurance propaganda machine.

Links to Groups and Organizations

At ANDERSON, HEMMAT & LEVINE, we believe that every American citizen should have health care, but if you don’t and you find yourself injured through no fault of your own, we will work diligently to make sure your health and financial needs are taken care of.

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In my nineteen years of practice, the job that is often the most heart wrenching is representing children injured or killed in accidents.   Often the most difficult part for the families of these children is the realization that these accidents could have been easily prevented. 

There are certain preventable accidents and injuries involving children that we see over and over again.  Based on these cases, I would like to suggest 10 tips that if implemented in your home would dramatically reduce the likelihood of you ever experiencing the devastation of having your child seriously injured in a preventable accident.   These 10 tips will certainly make your children safer and less likely to ever need the representation of our firm.

1) No bike riding near streets.

Children, busy roads and motorists do not mix.  Always keep bikes and motorists separated.  This may mean that instead of allowing your child to ride their bike in your driveway you will have to go to a nearby park.  This inconvenience will not only keep your children safe, but is sure to create cherished memories for your children of the time they get to spend with you.

If you find this rule to be too impractical, I at least urge you to not let your children ride near traffic without the watchful eye of an extremely responsible adult.  Even then, motorists are often to blame for these tragic encounters.  So, again, simply mandating that children NEVER ride around cars is my rule at home.

2)  If there is a Helmet built for it - Wear It!

Biking, river rafting, skiing, skate boarding, snowboarding, rollerblading ... the list of sports that have helmets as optional equipment is always growing.  The reason helmets are being introduced into more sports, is because people who don't wear helmets while doing these activities are getting brain injuries.  For the safety of your children, if there is a helmet made for the sport, purchase one and require your child to wear it.

3) No Go-Carts, Dirt Bikes, or Horses.

Go-Carts sit very low to the ground and drivers in normal sized cars cannot and do not expect to see them.  Children involved in accidents involving Go-Carts and Automobiles often do not survive, because Go-Carts offer no protection at all to your child even if they have a "roll-cage". Every year children are run over and killed in these dangerous vehicles which are only meant for use at a closed track. 

Dirt bikes should be called scar and bone breaking machines. They are awfully fun. But, so were lawn darts.  Don't expose your children to these injury machines.  There are plenty of other very fun and much safer hobbies for your child to become involved in.

Finally, horses. Yes, horses. Nearly every state in the union has passed laws called Equine legislation which acknowledges what everyone knows or should know:  Horses are wild and unpredictable animals. Anyone who has ever had one will tell you of their falls from them and getting kicked by them.  Though I am sure I'm offending someone right now, I'm not here to get your vote, I'm trying to save your child from a spinal cord injury.  If you love horses and visits to the hospital, then ride them yourself, but please keep your children off them.

4) Use the Car Seat and Booster Seat Longer.

Car seats with five-point restraints are much better than the three-point restraints car manufacturers furnish the rest of us. NASCAR drivers recognize this and also use a five-point restraint system.  Some of these seats can be safely used until your child is 10 or older. Use them as long as you can.  Once your child graduates from the car seat, consider a booster seat. The booster elevates the child to make the standard three point seat belt work correctly with the smaller frame of your shorter child.

I suggest you insist your child continue using these items as recommended.  Belting a small child in a normal seat belt can cause more internal damage than no belt at all. This is so important that you should be using these car seats and boosters well into the time period where it is causing daily embarrassment for your child. 

5) No Guns in the House.

Ask your 5 year old where in the house you hide your loaded Glock - He will show you.  Ask your 6 year old where the gun safe key is kept - He will show you.  

Kids shoot other kids and themselves by accident every year at home.  Look, I'm not calling into question your right to bear arms.  But I am calling into question your sanity if you keep these weapons around children in your home. Get rid of the guns and have one less way your child might not make it to 18.

6) No Trampolines.

If you could only get rid of either your guns or your trampoline, leave the loaded gun on the kitchen counter but get rid of the trampoline.  I'm kidding ... sort of.  Get rid of both.  But, the only safe trampoline is a disassembled and carted off to the dump trampoline.  No net, cushion or devise will make this quadriplegic-maker safe.

7) Wear every Pad/Guard made for Skateboarding or Skating.

Skateboarding and skating are here to stay. Dangerous as all heck. But, nonetheless, here to stay. If you can't keep your child on the ground, arm them with every single pad, guard, brace, etc. that is made.  I'm hoping this will make them decide through sheer embarrassment not to ride these crazy dangerous items.

8) Investigate your Daycare Facility.

Every year I represent at least one child severely injured because an under-staffed day care facility let a 3 year old do what he wanted.  Even though Colorado Department of Social Services regulates these facilities, don't assume anything when it comes to these places.  

After you have the scheduled interview and carefully choreographed tour with the director, drop in unexpected and see how things really look. In fact, do that a couple of times. Run the facility name and the director/owner's name on Google and see what comes up about safety, and contact Colorado Department of Social Services BEFORE your child's first day.

9) Know the Driving History of Anyone you Permit to Drive your Children.

This is common sense.  My eight year old has been driven in his lifetime by 3 people other than his mother and me.  Anyone can obtain a driving history of anyone else.  This can be done for less than $10 dollars and can be obtained on line. Don't let your child drive with speeders, stop sign runners, or drunks.

10) Pools: Secure Them or Get Rid of Them.

Small children and pools are a recipe for disaster. There are electronic child proof covers that are affordable. There are alarms that children can wear which scream if a child makes contact with the water.  In any event, the message I'm here to share is that if you own a pool and you are not prepared to child proof that pool consistent with the recommendations of a safety consultant, then you should make arrangements to back fill that pool with dirt and make a garden where your pool used to be.  Your children, who now have a shot at making it to adulthood, will thank you for it.

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The more adamant and proactive you get when it comes to child safety, the better.  There are so many ways children get injured and die regardless of what we do as parents, that these ten items should only be the very tip of the iceberg.  I hope this gets you thinking of other unsafe things in your house or yard that you should get rid of.  Do it, children are a blessing and protecting them is your first and most important job.

At ANDERSON, HEMMAT & LEVINE, we want for your children to be as safe as possible.  We hope that you will never need our services for such a devastating accident.  But if you do, rest assured that we will work hard to help you through this very difficult time in your life.

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For nearly 20 years, I have represented people injured in motor vehicle accidents.  All too often, these accidents and the subsequent injuries were preventable.   I would like to share with you 10 important lessons that I have learned, in the hopes that it will help you avoid an accident, or at least a serious injury.  I do this in part because some of my clients have asked me to share their experiences with the public.  Hopefully, you will be able to avoid going through the needless pain and suffering that my clients endured by implementing these lessons in your driving habits.

1) Wear your Seatbelt/Restrain Children in Car Seats.

We hear it all the time.  But from 20 years of handling some of Colorado's most injured, there is no question that seatbelts and car seats save lives.  This is the number one way for you to avoid serious injury for a reason - Because It Works!

2) Riding a Motorcycle? - Wear a Helmet!

At the risk of offending certain riders, a motorcyclist riding without a helmet is a major brain injury waiting to happen.  Emergency responders often call un-helmeted motorcyclists "donor-cycles" for a reason.  In our field, we see it all the time. Motorcyclists who wear helmets may still incur significant injuries such as broken bones, scars, road rash, and more-but most importantly, they LIVE.  Un-helmeted motorcyclists overwhelmingly end up in the morgue or as long term residents at Craig Hospital.  It's really that simple - please wear a helmet for your health and for your family.

3) Keep Objects in Your Vehicle Secure.

In an accident, a hand held game, a cell phone or even a book becomes a missile. Put these items in your trunk or glove compartment.

4) Don't Let Your Passenger Lie Down while you are Driving.

Even though front seats recline, no one should ever fully recline their seat while the vehicle is moving.  Even back seat passengers should not strap on a seatbelt and then lay down in the back seat.  In a rear-end collision, a reclined front seat passenger can be propelled into the back seat. This is a cause of spinal cord injury to countless unsuspecting victims each year. Also, seatbelts can cause injuries to internal organs when they are restraining a passenger lying down in a back seat.  Seatbelts are not designed for this type of use, and this misuse can cause major injury.  Always remain upright when in a moving vehicle so that all of the safety features of your car can work properly and keep you safe.

5) Stay Off Cell Phones - No More Texting!

In our hectic and fast-paced society, this is probably the most difficult advice to follow.  But each year more and more of our practice involves representing people injured by cell phone or texting-related car crashes.  If you do it, you are going to crash (it's not a matter of "if" - it's only "when").  We know how to prove you were on your cell phone or texting when you are in an accident.  So if you do it, you're going to hurt someone and you're going to get caught.  Believe it or not, whoever is on the other line can wait for you to get where you are going before hearing back from you.

6) Parents - Don't let your Teens Drive with Teens.

Young drivers get too distracted.  It is a recipe for death.  Every year I represent families who lose loved ones in crashes involving multiple teenagers in a car.  These losses devastate families and communities for years.  Tell your children that your rules apply until they leave your house. Stay firm with them.  And if that doesn't work, have them call your lawyer (me) so I can explain how dangerous it is.  Teenagers simply don't have the experience necessary to be able to drive safely while transporting rambunctious teenage passengers.

7) Don't Let Drivers Through Traffic.

So you're in a traffic jam, and suddenly a man headed in the other direction gives you a signal that he wants you to let him turn left in front of you. You feel like a jerk if you don't let him, right? Actually, you pose a much greater danger to others if you allow him to cross in front of you.  After he crosses in front of you, he is also going to cross in front of the driver to your right (he too doesn't want to be a jerk). But then blinded from all of this is the third lane over which is clear because it's a right turn only lane.  Many times, a driver in that "right turn only" lane may proceed straight through the intersection anyway.  This driver may not see the driver you have allowed to cross in front of you until it's too late.  CRASH!! You just contributed to a huge collision. Just say no, it's safer for everyone.

8) Don't Eat While Driving.

I have seen many accidents caused by someone dropping their McMuffin® on their pants and then while trying to recover the fumble, they slam into the rear of an unsuspecting vehicle.  We all do it.  We all need to stop.  Dine in more; drive-thru less.

9) Don't Input your GPS Coordinates While Driving.

This is very dangerous, and every GPS manufacturer tells you not to drive while doing it.  Yet, inputting coordinates in a GPS unit while driving has increasingly become the cause of many crashes each year.

10)  Avoid Non-Verbal Gestures with Other Drivers

Road rage is deadly.  Every year road rage ends in accidents, injuries and death.  Put the finger away, don't wave your arms, keep both hands on the wheels, and smile knowing that you won't be another statistic.

In my experience, these ten simple tips would have prevented injuries to 75% of my clients.

At ANDERSON, HEMMAT & LEVINE, we want for you to be the safest driver possible.  We hope you will never be the cause of an accident.  But in the unfortunate event that you are injured by an unsafe driver, we will work hard to help you through this very difficult time in your life. 

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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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