THE BASICS OF PERSONAL INJURY:

 

 

THE BASICS OF PERSONAL INJURY CLAIMS

 

If you’re alive and living in today’s fast world, chances are you’ll suffer an injury — in a car or cycle accident, in a slip or trip and fall on the pavement, in a bad brush with a defective or dangerous product. Many people suffer added insult to their injuries: they are frustrated in their attempts to get help and compensation to cover their pain and damages. But learning the basics about personal injury claims can be reassuring and can often help stem the tide of frustration.

 

 

The Key to a Fair Settlement

 

How well we settle your accident claim depends on the information you provide to us and how well you document that information. The sooner you get organized and begin documenting the facts of the accident, the better our chances of clearly showing an insurance company your side of the incident and receiving all the compensation to which you are entitled.

 

 

The First 72 Hours: Protecting Your Rights

 

Immediately after being injured in an accident, you are probably angry, in pain and maybe a little depressed. That is not the best frame of mind in which to get organized for a Personal Injury Claim. But taking some of the following simple steps in the first few days after your accident can help make the entire process easier — and increase your chances of receiving all the compensation to which you are entitled.

 

Write everything down. Jot down things about the accident as soon as possible after it happens, including details of your injuries and their effect on your daily life. These notes can be extremely useful two or six or ten months later, when we put together all the important facts into a final demand for compensation. Having notes that document all the details of what happened, and what you went through, is far easier and far more accurate than relying on your memory.

 

Get into the habit of taking notes on anything you think might possibly affect your claim. Anytime you remember something you had not thought of before — while you’re in the shower, just before you fall asleep, as you’re biting into a pastry — write it down and put it with your other notes. There are several kinds of notes you should keep and provide to us in a timely manner.

 

 

Accident notes

 

As soon as your head is clear enough, jot down everything you can remember about how the accident happened, beginning with what you were doing and where you were going, the people you were with, the time and weather.  Include every detail of what you saw and heard and felt — twists, blows and shocks to your body immediately before, during and right after the accident. Also include anything you remember hearing anyone — a person involved in the accident or a witness — say about the accident.

 

 

Injury notes

 

In the first days following your accident, make daily notes of all pains and discomfort your injuries cause. You may suffer pain, discomfort, anxiety, loss of sleep or other problems which are not as visible or serious as another injury but for which we should demand additional compensation. If you don’t make specific notes of them immediately, you may not remember exactly what to tell us. Also, taking notes will make it easier for us later to describe to an insurance company how much and what kind of pain and discomfort you were in.

 

Writing down your different injuries will help you report them to a doctor or other medical provider when you receive treatment. A relatively small bump on the head or snap of the neck, for example, may not seem worth mentioning, but it might help both the doctor and the insurance company understand why a bad back pain developed two or three days, or several weeks after the accident. Also, by telling the doctor or other medical provider about all of your injuries, those injuries become part of your medical records that will provide evidence later that such injuries were caused by the accident.

 

 

Notes of economic or other losses

 

You may be entitled to compensation for economic loss and for family, social, educational or other losses, as well as for pain and suffering. But you will need good documentation. Begin making notes immediately after the accident about anything you have lost because of the accident and your injuries: work hours, job opportunities, meetings, classes, events, family or social gatherings, vacation or anything else which would have benefited you or which you would have enjoyed but were unable to do because of the accident.

 

 

Notes of conversations

 

Make written notes of the date, time, people involved and contents of every conversation you have had about your accident. In-person or telephone conversations worth noting may include those with any witness, adjuster or other insurance representative, or with medical personnel.

 

 

 

Preserve Evidence of Fault and Damages

 

The first few days immediately following an accident are often the most important for finding and preserving evidence of what happened — and documenting your injuries.

 

 

Physical evidence

 

Who was at fault for an accident is sometimes shown by a piece of “physical” evidence —something you can see or touch, as opposed to a description of what happened. Examples include a worn or broken stair, which caused a fall; the dent in a car showing where it was hit; an overhanging branch that blocked visibility on a bike path. Also, physical evidence can help prove the extent of an injury: damage to the car can demonstrate how hard a collision was; and torn or bloodied clothing can show your physical injuries very dramatically.

 

Moreover, physical evidence that is not preserved or photographed in the first few days following an accident can get lost, modified by time or weather, destroyed or repaired. So, any physical evidence you have — your damaged car or bike, your damaged clothing, a defective product — should be preserved exactly as it was at the accident. It can be later shown to the insurance company as proof of what happened.

 

 

Photographs

 

If you do not have a piece of physical evidence, or for any reason cannot preserve it, the next best option is to photograph it. Regular photos are better than Polaroids. Not only do they usually show greater detail and more accurate light conditions, but we will be able to give an insurance company prints while holding onto the negatives. Take a number of photos from different angles so that we can later pick out the ones that show most clearly whatever it is we want to highlight to the insurance company.

 

Take the photos as soon as possible so that they will accurately represent the condition of the evidence immediately after the accident. To establish the date the photos were taken, ask a friend to both watch you take the pictures and to write a short note stating that he or she observed you taking the pictures on that date. Also, get the film developed immediately and make sure the photo shop indicates the date on the back of the prints, or at least on your receipt.

 

 

Returning to the scene

 

if an accident occurred somewhere other than in your home, return to the scene as soon as possible to locate any evidence and photograph any conditions you believe may have caused or contributed to the accident. You may be amazed to find something you were not aware of when the accident occurred but which may help explain what happened: a worn or torn spot on which you fell, a traffic light that isn’t working. And while looking around, you may also find someone who saw what happened, or who knows of other accidents which have happened in the same spot.

 

Take photographs of the accident scene from a number of different angles — particularly your view of things right before the accident — to keep a good picture of it in your mind and for us to give to the insurance company later on to indicate how well prepared we are to get the settlement you deserve. Photograph the scene at the same time of day as your accident occurred, and for vehicle accidents, the same day of the week, to show the appropriate amount of traffic.

 

 

Witnesses

 

A witness to an accident can be immensely valuable to us in making your case to an insurance company. Witnesses may be able to describe things in an accident that confirm what you believe happened, backing up your story. And they may provide us with information you were not aware of but which shows how the other person was at fault. Even a witness who did not actually see the accident may have seen you soon after you were injured and can confirm that you were in pain or discomfort. Or, a witness may have heard a statement made by another person involved in the accident indicating that someone other than you was at fault.

 

However, time is of the essence. If witnesses are not contacted and their information confirmed fairly soon after the accident, what they have to say may be lost. People’s memories fade quickly, and soon their recollections may become so fuzzy that they are no longer useful. Also, a witness might no longer be around if we wait to long; people move frequently.

 

 

Documenting your injuries

 

The best ways to preserve evidence of your injuries are by promptly reporting all of them to a doctor or other medical provider, and by photographing any visible marks, cuts, bruises or swelling, including any casts, splints, bandages or other devices. Without an early medical record of all your injuries, and photos if possible, it will be more difficult for us later on to convince an insurance company that you were injured in the ways and to the degree we claim you were. Visible injuries heal and will not look as serious later, and failing to seek immediate treatment can lead an insurance company to believe that your injuries were not so serious, or even that you invented or exaggerated them after the accident.

 

Recovering money for your injuries will be easier if you keep relevant notes, letters, medical records and photographs in good order to provide to us. As we move along in the claims process, you will probably gather more and more pieces of paper. Keeping them organized and sending them promptly to us facilitates keeping track of what records and documents we have and what we still need to get. It also prevents costly duplication of efforts such as requesting billing records from a physician or medical institution when they have previously been provided to you.

 

 

Special Concerns About Stairs

 

Stairs present a number of special dangers, some obvious, some hidden, which cause thousands of people to trip or slip and fall every year. With the more obvious defects — a torn or loose carpet, a step or handrail which breaks — liability of the property owner is usually clear.

 

However, there may also be additional dangers with stairs, which made your fall more likely. Some defects in stairs may remain hidden even after your accident. As for these, we may have to figure out what happened and how the stairs should have been constructed or maintained differently. These may be essential issues to establish before we will be able to show that the owner of the premises, or anyone else, may be legally responsible for your fall.

 

 

Slippery surfaces

 

A common hidden stair danger is worn-down carpet or wood which makes the “run” part of a stair — the part your foot lands on — dangerous, both going up and coming down. Even a slightly worn stair or carpet, particularly on the edge of a step, can be perilous because a person is not likely to notice slight wear and may be even more slippery than stone, painted wood or carpeted stairs. if so, the owner may have sacrificed safety for beauty, and may now be liable because of that choice.

 

 

Wet or icy outdoor stairs

 

Many people slip and fall when rain, snow or ice collects on outdoor stairs. The first response of an insurance adjuster is to say that the property owner is not responsible for the weather, and that everyone must be extra careful when it has been cold, raining or snowing. While this is partly true, it does not end the question of the owner’s negligence.

 

Outdoor stairs must be built and maintained so that water or ice does not unnecessarily build up on the stairs. If there was an extra buildup of rain, snow or ice on which you slipped, the step was dangerous and the owner should be liable. Further, an outdoor step must have a surface, which does not become extra slippery when wet or icy. if an outdoor step does not have an anti-slip surface, the owner has not taken reasonable safety precautions and may be liable if you slip and fall

 

 

Building code violations

 

Almost every city or county has a building code which must be followed by builders and owners when constructing any building, including the stairs. Your city or county building department, and perhaps your local library, will have a copy of the local building code. Check the stair requirements of the code to see if the stairs on which you fell fail to meet any specifications. if your fall occurred on, or was made worse by, the part of the stairs, which fails to meet the code, the code becomes very strong support for our argument that the stairs were dangerous.

 

 

Handrails

 

Most building codes require one or more handrails on stairs of a certain width or a certain height; some building codes also have different requirements for commercial premises, multiple-unit apartments and private homes.

 

Building codes also require that handrails be installed properly — that is, firmly attached —and at a certain height. Reaching for a handrail, which is at the wrong height, can actually cause you to fall when nothing else is wrong with the stairs.

 

 

Improper stair height or depth

 

The vertical and horizontal part of each step are called the “riser” and the “run.”  Building codes prescribe a maximum and minimum riser height for each step, and a maximum and minimum depth for the part on which you put your foot, the run.

 

If you have slipped or taken a sudden and unexplained fall on a stair, measure the stair’s risers and runs and compare the measurements with the minimums and maximums in the building code. if either the riser or the run violates the code, the stairs were defective.

 

The question then becomes whether the defect caused your fall. But once we have established that the stairs were defective in a basic way — the wrong height or depth — we have gone a long way toward showing that the stairs were dangerous. Unless the building owner’s insurance company can show clearly that you fell because of your own carelessness, the improper stair alone will normally be enough to gain a settlement for you.

 

 

Uneven stair height or depth

 

Building codes not only set maximum and minimum variance from one step to another —that is, the differences permitted in the heights and widths, they also set a maximum variance from one step to another — that is, the differences permitted in the heights and depths of any one step from another.

 

The variance standard is important because when we go up or down stairs, our brains remember how far the last steps were and automatically tell our legs to move the same distance the next time. if the leg moves the same distance but the step isn’t in the same place — even slightly — we may lose balance and fall. So, even if each riser & run is within the code limits, variance from one step to another may violate another section of the code, and create a dangerous set of stairs.

 

 

Slip or Trip and Fall Accidents

 

There is no precise way to determine when someone else is legally responsible for something on which you slip or trip. Each case turns on whether the property owner acted carefully so that slipping or tripping was not likely to happen — and whether you were careless in not seeing or avoiding the thing you fell on.

 

 

Property or business owner’s liability

 

To be legally responsible for the injuries you suffered from slipping or tripping and falling, the owner of the premises or the owner’s employee:

 

    Must have caused the spill, worn or torn spot, or other slippery or dangerous surface or item, to be underfoot

   Must have known the slippery or dangerous material or object was underfoot but did nothing about it, or

   Should have known the slippery or dangerous material was on the floors, stair or ground because a “reasonable” person taking care of the property would have discovered and removed or repaired such a thing.

 

 

Reasonable care of property

 

In determining a property owner’s “reasonableness,” the law concentrates on whether the owner makes regular and thorough efforts to keep the property safe and clean.

 

When investigating and negotiating your claim for injuries suffered in a slip or trip and fall, we focus on the legal responsibility — and probably get a reasonable offer of settlement — by requesting in writing that the insurance company answer in writing any of these questions that may fit your situation.

 

    if you tripped over a torn, broken or bulging area of carpet, floor or ground, or slipped on a wet or loose area, had the dangerous spot been there long enough so that the owner should have known about it?

    Does the property owner have a regular procedure for examining and cleaning or repairing the premises? If so, what is it and what proof does the owner have of this regular maintenance?

    if you tripped over or slipped on an object, someone had placed or left on or in floor or ground, was there a legitimate reason for the object to be there?

   if there once had been a good reason for the object to be there but that reason no longer exists, could the object have been removed or covered or otherwise made safe?

   Was there a safer place the object could have been located, or placed in a safer manner, without much greater inconvenience or expense to the property owner or operator?

   Could a simple barrier have been created or warning given to prevent people from slipping or tripping?

   Did poor or broken lighting contribute to the accident?

 

 

Personal Injury: Frequently Asked Questions

 

 

Can I get compensation if the accident might have been partly my fault?

 

Even if you might have partly caused an accident yourself you can still receive compensation from anyone else who was careless and partly caused the accident. The amount of another person’s responsibility is determined by comparing his or her carelessness with your own. For example, if you were 25% at fault and the other person was 75% at fault, the other person must pay — through the insurance company —75% of the fair compensation for your injuries. This rule is called “comparative negligence.”

 

 

How do insurance companies decide how much they’ll pay?

 

Insurance companies use a formula to calculate a range of compensation for an injury. The final payment figure, though, is the result of negotiations with the injured person, the insurance adjuster and us. The formula is no secret. In general, an injured person will be reimbursed for:

 

   Medical care

   Lost income

   Temporary and permanent pain and other physical discomfort, and

   Loss of family, social and educational experiences

 

A claims adjuster begins with the medical expenses. Then the intangibles — pain and other noneconomic losses — are added in by multiplying the medical expenses by 1.5 to 2 times if the injuries are relatively minor, and up to 5 times if the injuries are more significant. The multiplier can go still higher — sometimes as much as 10 times medical expenses — if the injuries are particularly painful, serious or long lasting. Finally, lost income is added to that amount.

 

Several factors raise the damages formula from the 1.5-times end toward the 5-times end:

 

   More painful, serious or long-lasting injuries

   More invasive or long-lasting medical treatment-clearer medical evidence of extent of injuries

   More obvious evidence of the other person’s fault, and less of your fault

 

Does my health insurance coverage or paid sick leave from work limit my compensation?

 

Whether you paid for medical care out of your own pocket or your health insurance covered it is none of a claims adjuster’s business. The same goes for whether your lost time at work was covered by sick leave or vacation pay. In fact, it is improper for and adjuster even to ask about such payments. You paid for your health insurance and earned your sick leave or vacation pay; now the insurance for the person who caused the accident has to pay.

 

Your own health insurance, however, may require that, out of your settlement, you reimburse it for some or all of the amounts it has paid to treat your injuries.

 

if you did not have health insurance and you were treated in an emergency situation, the medical institution, emergency transport or other medical care services involved in the emergency care can place a lien on any settlement monies you receive in order to insure they are paid.

 

 

Who pays for accident injuries?

 

Most accidents happen because someone was careless — or ‘negligent,” in legalese. The law applies a simple rule: If one person in an accident was less careful than another, the less careful one must pay for at least some of the damage caused. Legal liability is almost always determined by this basic rule and these other simple rules:

 

   if a negligent person causes an accident while working for someone else, the employer is also legally responsible.

   if the injured person was also careless, his or her compensation may be reduced by the extent that such carelessness was also responsible for the accident. This rule is known as “comparative negligence.”

 

Liability insurance covers nearly every motor vehicle on the road, and when it doesn’t, your own uninsured/underinsured motorist policy usually covers you.

 

if you’re involved in certain kinds of accidents, the other driver is at fault 99% of the time, and insurance companies hardly bother to argue about it. This is called ‘No­ Doubt’ Liability.

 

In Rear-End Collisions, it is virtually never your fault, regardless of why you stopped. A basic rule of the road requires a vehicle to be able to stop safely if traffic is stopped ahead of it.  If it cannot stop safely, the driver is not driving as safely as the person in front.

 

The other sure-fire part of the rear-end accident is that the damage proves how it happened: if one car’s front end is damaged and the other’s rear end is, there can’t be much argument about what happened.  Of course, the driver of the car that hit you may have a claim against someone who caused you to stop suddenly, or against a car that pushed it into your car. But that doesn’t change his or her responsibility for injuries to you and damage to your car.

 

In a Left Turn Accident, a car making a left turn is almost always liable for a collision with a car coming straight in the other direction. Exceptions to this near-automatic rule are rare and difficult to prove, but they can occur if:

 

   The car going straight was going well over the speed limit.

   The car going straight went though a red light.

   The left-turning car began its turn when it was safe, but something unexpected made it slow down or stop. This is an extremely difficult excuse to use because a basic rule of the road says the car making the left turn must wait until it can safely complete the turn before moving in front of oncoming traffic.

 

 

Keeping Track: Accident Claim Worksheet

 

 

Use this worksheet to help keep track of the information we will need to process your accident injury claim. As you receive additional information you may fax it to us at 281/334-7542.

 

INSURANCE

 

 

YOUR AUTO INSURANCE

 

Insured ______________________________________________________________________

Insurance Company ____________________________________________________________

Address ______________________________________________________________________

Phone _________________________________ Fax __________________________________

Policy Number ____________________________Claim Number _______________________

Adjuster _____________________________________________________________________

Other Information _____________________________________________________________

______________________________________________________________________________

 

 

 

LIABILITY

 

 

RESPONSIBLE PERSONS & AUTO INSURANCE

 

 

Responsible Person_____________________________________________________________

Address______________________________________________________________________

Phone (work)                                               (home)_____________________________

Auto License                                       Drivers License ___________________________

Insurance Company____________________________________________________________

Address ______________________________________________________________________

Phone                                                 Fax______________________________________
Policy Number                                    Claim Number____________________________

Adjuster _____________________________________________________________________

Other Information_____________________________________________________________

 

 

 

DRIVER:  NOT POLICY HOLDER

 

Name ________________________________________________________________________

Address ______________________________________________________________________

Phone (work) _____________________________ (home) _____________________________

Drivers License ________________________________________________________________

Other Information _____________________________________________________________

 

 

WORKERS COMPENSATION

 

Employer _____________________________________________________________________

Address ______________________________________________________________________

Phone ________________________________________________________________________

Workers Compensation Carrier __________________________________________________

Address ______________________________________________________________________

Phone ______________________________________ Fax _____________________________

Policy Number____________________________ Claim Number _______________________

Adjuster _____________________________________________________________________

Other Information _____________________________________________________________

 

 

LOST TIME WAGES

 

Dates Unable to Work __________________________________________________________

Days/Hours Lost _______________________________________________________________

Salary/Hourly Wages ___________________________________________________________

Date Returned to Work _________________________________________________________

Yearly Evaluation Date _________________________________________________________

 

 

WITNESSES

 

Name ________________________________________________________________________

Address ______________________________________________________________________

Phone (work) ___________________________ (home) _______________________________

Date of First Contact ___________________________________________________________

Written Statement (Yes) ________________________ (No) ___________________________

Other Information _____________________________________________________________

 

 

Name ________________________________________________________________________

Address ______________________________________________________________________

Phone (work) ___________________________ (home) _______________________________

Date of First Contact ___________________________________________________________

Written Statement (Yes) ________________________ (No) ___________________________

Other Information _____________________________________________________________

 

 

Name ________________________________________________________________________

Address ______________________________________________________________________

Phone (work) ___________________________ (home) _______________________________

Date of First Contact ___________________________________________________________

Written Statement (Yes) ________________________ (No) ___________________________

Other Information _____________________________________________________________

 

 

Name ________________________________________________________________________

Address ______________________________________________________________________

Phone (work) ___________________________ (home) _______________________________

Date of First Contact ___________________________________________________________

Written Statement (Yes) ________________________ (No) ___________________________

Other Information _____________________________________________________________

 

 

 

MEDICAL TREATMENT

 

TREATMENT PROVIDERS

 

Name ________________________________________________________________________

Address ______________________________________________________________________

Phone                                                   Fax_____________________________________
Date of First Visit                               Date of Last Visit__________________________

Person to Contact for Medical Records____________________________________________

Date Requested                                   Date Received_____________________________

Other Information_____________________________________________________________

 

 

Name ________________________________________________________________________

Address ______________________________________________________________________

Phone                                                   Fax_____________________________________
Date of First Visit                               Date of Last Visit__________________________

Person to Contact for Medical Records____________________________________________

Date Requested                                   Date Received_____________________________

Other Information_____________________________________________________________

 

 

Name ________________________________________________________________________

Address ______________________________________________________________________

Phone                                                   Fax_____________________________________
Date of First Visit                               Date of Last Visit__________________________

Person to Contact for Medical Records____________________________________________

Date Requested                                   Date Received_____________________________

Other Information_____________________________________________________________

 

 

Name ________________________________________________________________________

Address ______________________________________________________________________

Phone                                                   Fax_____________________________________
Date of First Visit                               Date of Last Visit__________________________

Person to Contact for Medical Records____________________________________________

Date Requested                                   Date Received_____________________________

Other Information_____________________________________________________________      

 

 

Name ________________________________________________________________________

Address ______________________________________________________________________

Phone                                                   Fax_____________________________________
Date of First Visit                               Date of Last Visit__________________________

Person to Contact for Medical Records____________________________________________

Date Requested                                   Date Received_____________________________

Other Information_____________________________________________________________

 

 

Name ________________________________________________________________________

Address ______________________________________________________________________

Phone                                                   Fax_____________________________________
Date of First Visit                               Date of Last Visit__________________________

Person to Contact for Medical Records____________________________________________

Date Requested                                   Date Received_____________________________

Other Information_____________________________________________________________

 

 

Name ________________________________________________________________________

Address ______________________________________________________________________

Phone                                                   Fax_____________________________________
Date of First Visit                               Date of Last Visit__________________________

Person to Contact for Medical Records____________________________________________

Date Requested                                   Date Received_____________________________

Other Information_____________________________________________________________

 

 

 

 

PLEASE NOTE: When you are an inpatient or outpatient at a hospital there are separate bills generated for radiology, anesthesiology, pathology, emergency room physicians, and individual bills from each physician attending you at the hospital. These are important additional bills we will need to fully process your claim.

 

 

Our firm’s goal is for an educated, well informed, and empowered clientele involved in the claim process thus ensuring receipt of all the compensation to which they are entitled. We welcome any questions, concerns, comments, or requests that you may have. Please feel free to call my staff or myself anytime at 281/334-5216. We are pleased with the opportunity to serve you.