What Is My Injury Worth?

Have you ever wondered how a jury decides to award a certain figure to an injured plaintiff?  Is there a book somewhere that assigns a value to a herniated disc or a fracture?  In short, no.  A valuation of a person’s injuries is a combination of many factors including age, lifestyle, the limitations caused by the accident, and even where the lawsuit is filed.  Today, juries are far less inclined to award significant damages than they were in the 1990’s.  Defense verdicts and minimal damage awards have become more common even in cases where the defendant’s liability is conceded.  These factors have driven down settlement values because defense counsel are more confident about going to trial. 

While estimating an injured person’s damages is not an exact science, there are certain general parameters plaintiff’s attorneys keep in mind.  Someone who has received only primary care or chiropractic treatment, even for a lengthy period of time, and who has not been terribly inconvenienced or lost significant time from work can expect to receive under $15,000.00.  If an individual in this situation has limited tort, most attorneys will not even take the case. (Read my earlier post for an explanation of limited tort).

Diagnostic evidence of a herniated disc, a fracture, nerve damage or other internal injury, and scarring or disfigurement will increase the value of the case.  However, the impact on work and other activities is still a major consideration.  Lesser impact, lesser damages.  Greater impact, greater damages.

To obtain six figures, an injured plaintiff most likely will have to have undergone some type of surgery, have been disabled from work and activities for a significant period of time,  and have permanent injuries that continue to have a significant impact on the person’s lifestyle.

To receive an award in excess of a million dollars, the case will most likely  involve a death or a crippling injury likely to require substantial costs for continuing medical care into the future. 

Evaluation and estimation of damages requires careful consideration of the client’s medical records, wages, earning capacity, period of disability, likelihood of recovery, continuing medical care if any, and, yes, even where the case will go to trial. (Philadelphia, good.  The outlying counties, not so good).  Beware of anyone who throws figures at you, especially high ones, before a full evaluation of your case.  You are likely to be disappointed.

For ERISA Disability Claims, Forewarned is Forearmed

Employees who are thinking of applying for disability benefits must seek guidance while still employed  or run the risk of finding themselves without any income at all.  Too often, employees leave their jobs with the expectation that the disability checks will start coming as soon as they turn in their application.  By the time they come to me, my options to preserve their income have been cut in half. 

As an example, an individual with a degenerative autoimmune disorder was confronted by his boss with complaints about his job performance.  In response, he agreed to “retire” and seek long term disability benefits.  Had he come to see me first, I would have advised him not to leave employment until we had reviewed whether the employer could provide accomodations for his disability as required by the Americans With Disabilities Act.  He may have continued working effectively for awhile and improved his performance with a few changes in his work enviroment.  Second, an early retirement and disability cannot co-exist.  Retirement is a voluntary choice to leave employment permanently, not compelled by a physical condition, and without the expectation to return.  An insurance company will be quick to pick up on any evidence that an employee has elected to retire.

In the case of the client with the autoimmune disorder, the insurance company, while acknowledging his condition, claimed it had not progressed to the point where he was medically disabled from working.  In short, he quit prematurely.  Because he quit while not “disabled” as defined in the policy, he will not be able to apply for disability benefits at anytime in the future when the condition inevitably worsens.  Having “retired” voluntarily, we cannot continue his employment with accomodations until the medical issue is beyond dispute or fault the employer for failing to accomodate him.  Worse still, he cannot claim unemployment benefits because of his voluntary departure.  He has fallen into the crevice between employment and approved disability with his only hope to challenge the disability denial and obtain a reversal, no small undertaking with the law stacked in favor of the insurance companies.

I cannot urge employees strongly enough to seek legal guidance before applying for disability benefits.  Employers are too often glad to assist a disabled employee’s departure and do not advise them that the insurance company, not the employer, determines eligibility for benefits which are not guaranteed.  Seek counsel before you find yourself between a rock and a hard place, unemployed without unemployment or disability benefits and facing the daunting task of getting an insurance company to reverse its decision.

Limited Tort Limits Plaintiffs in Automobile Accident Cases

I sat as an arbitrator today in the Bucks County Court of Common Pleas and heard two personal injury cases in which each plaintiff alleged his/her injuries were serious enough to overcome the limited tort threshold.  For anyone who has purchased motor vehicle liability insurance and still does not know what the limited tort threshold is, it is the selection you make when you elect to give up the right to sue for “minor” injuries in exchange for a lower insurance premium.

Now, mind you, I represent plaintiffs in personal injury cases and do this for a living, so I was not unsympathetic to the plaintiffs and their attorneys.  I believed they suffered injuries in the accidents.  However, I simply found their proof lacking when it came to establishing a “serious impairment of a body function.”  Perhaps the plaintiffs or their attorneys simply lacked an understanding of what this means.  The law requires that a plaintiff not only establish an injury, but also demonstrate how it has had a significant impact on his/her usual and customary activities.  It is not enough to claim one experiences pain when lifting, bending, reaching, etc. or that you can no longer pick up your child.  It also doesn’t help when, as in one of the cases today, the plaintiff fills out her doctor’s questionnaires reporting minimal impact on her activities and then tries to convince the arbitrators otherwise.

If you are concerned about your ability to be compensated in the event you are injured in an automobile accident, the simplest solution is to select full tort.  If you have selected limited tort, one thing you can do to help your attorney is to keep a diary after the accident writing down all the specific occasions and examples of how your injuries impact your life.  Dates, times and places of repeated occasions when you could not participate in a family activity, had to give up a second job or income producing hobby, or otherwise significantly altered your normal work/play activity will help your attorney convey to the factfinder how significant an impact you have suffered.  Having to give up golf when you only play four times a year or having to play in pain, even as a regular duffer, won’t win the day.

Advice in Wonderland

A lawyer’s role often involves debating the meaning of a single word in a document.  However, the abuse of the word “advice” in the case of Jay Doroshow v. Hartford Insurance Company led to one of the saddest and certainly the most perplexing result of my legal career. 

Jay Doroshow came to me for help because Hartford denied his claim for disability benefits.  Jay was diagnosed with Lou Gehrig’s Disease in March 2007.  Lou Gehrig’s Disease, also known as ALS, is an insidious, progressive wasting away of muscle function for which there is no cure.  It robs its victim of voluntary muscle control, brings about paralysis, loss of speech, and ultimately results in death.  Hartford denied Jay’s claim as a pre-existing condition.  Hartford’s policy stated that anyone who received “advice or treatment” for a medical condition in a three-month period prior to the policy’s effective date was ineligible for disability benefits sought as a result of that condition. 

Jay’s effective date for his insurance policy was July 1, 2006.  On May 16, 2006, within the three-month period, Jay went to his family physician for a follow-up visit after suffering a stroke several months earlier.  As a result of the visit, the doctor wrote an office note, as doctors do, noting the various physical ailments of the patient.  The doctor wrote that Jay had been seen in the past for symptoms of leg weakness which “Was not thought to be ALS.”  Indeed, Jay had been tested for ALS back in 2005, but the tests were negative and his doctor ruled it out at that time.  Hartford claimed the doctor’s note stating “Was not thought to be ALS” constituted advice about ALS and denied the claim. 

In the District Court, the judge ruled in favor of Hartford.  Citing the dictionary definition of advice as “a statement offered as a guide to a course of action,” he concluded that a negative diagnosis can indeed be advice because a doctor may rely upon the absence of a particular condition as much as its presence to decide on a particular course of treatment.  The honorable judge, however, overlooked the fact that the Hartford policy required the “advice” to be received by the insured patient.  In Jay’s case, there was no evidence that the doctor discussed ALS with him at the visit or even recommended any course of treatment for his symptoms of leg weakness.  He was there for a follow-up with regard to his stroke.  The judge effectively held that a doctor’s note in  a chart is “advice” even when the patient does not hear it.

In the Third Circuit Court of Appeals, unfortunately two members of the three-judge panel again found in favor of Hartford although on different grounds.  These judges disagreed that a negative diagnosis was “advice” in all cases.  However, they noted that the courts are required to be deferential when reviewing an insurance company’s discretionary determination of eligibility for benefits.  A balance must be maintained to protect the insured’s rights without making an insurer liable for benefits in all cases and discouraging companies from underwriting disability policies in the first place.  The law governing disability benefit policies, the Employee Retirement Income Security Act (ERISA), requires only that an insurance company be able to articulate a “reasonable basis” for its denial of benefits.

In Jay’s case, the Third Circuit panel majority noted Jay’s workup for ALS in 2005 and the fact that he was ultimately diagnosed with ALS in 2007.  Therefore, they ruled it was reasonable for Hartford to conclude from the family doctor’s office note that Jay received advice regarding ALS at that office visit.  The dissenting judge, the Honorable Marjorie Rendell, vehemently challenged her colleagues’ logic.  She argued, as I did in my brief, that one cannot receive advice for something that is not believed to exist.  Jay Doroshow was not guided toward any particular course of action by the family doctor, even if he heard the words “Was not thought to be ALS” because he didn’t think he had ALS.   Now down is up and up is down and everyone is talking in riddles.  A petition for writ of certiorari is pending with the United States Supreme Court.  However, based on the very small number of cases the Supreme Court accepts each year, the odds are against any further opportunity for appeal and certainly Jay will not live to see it.

Sometimes I think the courts and insurance companies forget we are dealing with more than esoteric discussions over the definitions of words.  Jay had premium co-pays taken from his paycheck for his disability benefits.  He may have never given much thought to ever needing them, but certainly expected them to be there if he did.  The loss of Jay’s benefits caused his family considerable financial and emotional hardship during an already physically and emotionally difficult time.  Who would think six words in a doctor’s note could lead to such a tragedy?

Ironically, the Third Circuit’s ruling has created a situation in which a person who has been diagnosed with a disease can be eligible for benefits as long as he avoids going to a doctor for the condition during the “look back” or exclusionary period while a person without a disease and who is told he does not have the disease during the exclusionary period may be denied benefits if it is diagnosed later.

It is even harder to ponder Jay’s situation knowing the entire argument over the definition of the word “advice” would have been unnecessary had Jay been able to continue working past July 1, 2007.  Hartford’s policy removed the preexisting condition exclusion after one year.  However, Jay’s employer denied his requests for certain accomodations Jay felt he needed to keep up with his job as a pharmacist.  He went out on medical leave on March 29, 2007, certainly not foreseeing the firestorm of litigation he was walking into.  A case against Jay’s employer for violating the Americans With Disabilities Act is still pending.

Lawyer Meets Blog

They say you can’t teach an old dog new tricks, and for awhile, I was inclined to agree with them.  I am a 47-year old attorney who was resistant to blogging.  I came up with every excuse under the sun not to.  How will I think of enough content to blog meaningfully and frequently?  Who really wants to read about legal topics that often anyway?  Using WordPress can’t be as easy as it sounds, right?

 Then I began using social networking sites like LinkedIn and Facebook and read other legal blogs.  I attended a seminar at which a prominent lawyer admonished us to disregard social networking tools at our peril both in terms of keeping up with the latest changes in the law, communicating with clients, and staying on top of the competition.  The last straw was a close friend, also an attorney, who started her own blog.  “It really is that simple,” she said.  “My teenage daughter can do it.”  That probably isn’t a fair comparison because teenagers have grown up with the internet.  When I started the practice of law, we were still writing our drafts on legal pads and handing them in to the word processing pool. 

Starting this blog feels like my first time on skis, a little clumsy and not really sure where I’m going.  But getting there is what it’s all about.  I hope my blog posts on issues of business law, employment law and personal injury will be received as informative,  timely, and perhaps even entertaining.  If you enjoy my blog posts, please take a moment to navigate through the rest of my website and see why my practice is more than just lawyering.  I want to give my clients peace of mind. 

 

                                                                                                                           Scott Fegley