Introduction and the Basics

You likely are reading this because you and/or a friend or family member has suffered an injury. When this injury is caused by the careless or wrongful act of another person or company, you have a civil claim against that person. There are a wide variety of types of claims – automobile crashes and workers’ compensation cases occur most frequently. But people are also injured because of dangerous products, hospital and doctor errors and mistakes, or unsafe property. When should you settle your claim directly with the insurance company? What questions do you ask the insurance claims representative? How do you know when to hire a lawyer? Which lawyer should you hire and what do you ask them to decide? This short guide is designed to answer these questions. Drivers who violate safety rules injure and kill people. We are all trained to follow the Rules of the Road and to operate motor vehicles safely. However, when that does not occur people are easily injured. Typically, the rule violations are excessive speed, failure to keep a careful lookout, failure to yield the right of way and violations of traffic signals. Drivers must use the “highest degree of care” or what “a very careful person” would do under the same circumstances. People violate the Rules of the Road in many different ways, and all of those violations are dangerous. In 2013, 757 people were killed in Missouri traffic accidents. Despite laws requiring them, only 80% of Missourians wear seatbelts. As a result, 6 out of 10 vehicle occupants killed in Missouri traffic accidents in 2013 were unbuckled. Further, despite impaired driving laws, 30% of Missouri traffic fatalities in 2013 involved a substance-impaired driver. The leading cause of fatal car crashes, other than substance impairment, is speeding and improper lane usage. And – don’t drive inTEXTicated! In the United States:

• Over 37,000 people die in road crashes each year
• An additional 2.35 million are injured or disabled
• Over 1,600 children under 15 years of age die each year
• Nearly 8,000 people are killed in crashes involving drivers 16-20
• Road crashes cost the U.S. $230.6 billion per year, or an average of $820 per person
• 3 million accident claims per year

When you are in a car accident, you only have a claim for personal injuries if the other driver was negligent, or caused injury to you. If the accident was your fault, no one else should pay you for your injuries, unless you had medical payment benefits or some other benefits through your insurance. If the other driver broke the rules of the road, drove unsafely and carelessly and injured you or a passenger, you do have a claim. Those claims usually divide into property damage and personal injury claims. Usually, you should handle your property damage claim yourself as you never want a lawyer to take a fee out of the money recovered for your vehicle-- you are already not going to get full value for your vehicle damage. Typically, people have high loans on vehicles and insurance companies pay wholesale or other reduced costs to pay for property damage. Make sure you get all your medical care quickly and thoroughly after the car crash. You will want to undergo treatment until you are at your maximum medical improvement. For a medical or personal injury claim, hire a lawyer for moderate and severe injuries and consider resolving small claims yourself. The guide below tells you how to differentiate between the size/importance of the claim and how to choose the right lawyer for your case. Be careful in dealing with insurance companies – some are fair but many cannot be trusted. They are incentivized to treat you unfairly – caveat emptor or seller beware – and you are selling your claim. Workplace injuries are equally scary and debilitating. There are certainly conscientious employers genuinely concerned about workplace safety. But there are also employers who cut corners, rush work, understaff, and do not emphasize safety over profits. We learn of these work injuries and deaths and all too often they are preventable. In 2014 in the United States, there were 3 Million workplace injuries – which is an incidence of 3.2 cases per 100 equivalent full-time workers. Unfortunately, this included 4,679 deaths. Twenty percent of deaths are in the construction trades – with the leading cause falls. Here are the ten most frequently cited standard violations by OSHA:

1. Fall protection
2. Hazard Communication
3. Scaffolding
4. Respiratory protection
5. Control of Hazardous Energy (lockout/tag out)
6. Powered Industrial Trucks
7. Ladders
8. Electrical and wiring methods and components
9. Machinery and Machine Guarding
10. Electrical Systems Design

When you are injured on the job you have a claim under your states’ Workers Compensation Laws. In Missouri and Illinois, your employer or its insurance company must provide three types of benefits:

1. LOST WAGES: Injured workers are due two-thirds (⅔) of the value of their wages while they are treated for their injuries. If an employer can provide the employee with labor that can be completed while on restrictions imposed by the treating doctor, then the employee must perform that newly assigned task until the restriction is lifted. Employers sometimes play games with job assignments for their injured workers by reassigning them to tasks that do not comply with the restrictions. Even worse, workers are sometimes fired for exercising their rights under workers’ compensation laws. Both of these behaviors are illegal.
2. MEDICAL EXPENSES: Missouri law requires that injured workers receive compensation for any medical expenses incurred as a result of workplace injury. Employers generally have the right to choose the doctor that you will go see.
3. LUMP SUM: The employer is only required to pay you for lost wages and medical expenses until you reach your maximum medical improvement. When the law says you will not get any better, the employer is no longer obligated to pay you any disability payments. At that point, the employer will offer you a settlement that is intended to compensate you for any diminishment in your capacity to work for the remainder of your life as a result of sustaining a workplace injury.

When Should You Settle Your Case Without A Lawyer?

Sometimes you should resolve your small injury case yourself without a lawyer. My lawyer brethren may not like this, but I often tell mild impact car accident victims with only an ER visit or a couple of doctor or chiropractor visits to settle their claims themselves. A worker who has a minor injury with a good employer and insurer who stands by her and pays all benefits owed, may not benefit from a worker’s compensation lawyer. Lawyers add value to cases where the injuries, medical treatment, and damages are more serious – and where the insurance company is taking incorrect positions or not being fair. If your medical from a car crash lasts weeks or more, or the insurance company is not treating you fairly, you likely need a lawyer. If you have a serious workplace injury, or your employer is not treating you fairly, you often need a lawyer. This is for a variety of reasons: Trial lawyers know the full value of your claim and how to get it; there may be legal hurdles for you to recover that a lawyer can get over; and claimants are risk-averse while insurance companies are not and you can get more power with a lawyer. Please remember that delay and inaction can negatively impact your claim. In a car crash case, you can resolve your property damage claim, get full payment to repair your car, or get a new vehicle. If you get basic medical attention after a car crash and are completely healed from that treatment, you can provide the medical bills and records to the insurance claim representatives to get payment for pain and suffering and resolve the claim yourself. Similarly, if you have a small slip in the grocery store but only go the urgent care and are fine, settle it without a lawyer. They will often quickly pay your medical bills. Only if your injuries exceed this basic medical treatment do you need an experienced and qualified lawyer to assist you. Here is what you should do if you want to try to resolve your own case. Be courteous and kind to the insurance claim representative and advise them of what happened (but no recorded statement is needed – they can take notes and it is not complicated). Tell them how you were rear-ended or the other driver violated the light signal or why the other driver is at fault. Most lawyers will tell you not to give a recorded statement and that is generally true. However, if you have a small claim, you are not significantly injured, you are not going to get any medical records, and you want to quickly handle it yourself - go ahead and give a simple recorded statement. It is not going to hurt you- just make sure that you tell the agent that the other person was at fault and how they were at fault. Organize your thoughts and write them down beforehand. If it’s a slip and fall, do the same – report the incident to the business and fill out an incident report or have them do that. Then communicate with the representative of the store or their insurance company. They likely will take care of your bills and pay you a little extra for the inconvenience. In trying to settle your case, provide all your medical records and bills to the insurance company. Provide to them photos and any other material that is relevant. Have them pay the full price of the medical or the reduced price that your insurance paid. Do not let the defendant’s insurance get any benefit because your health insurance paid the medical. This is a source of collateral to the defendant and one that they should not get the advantage of. You are the one that paid insurance premiums, so you get that benefit. Have the insurance company pay the full price of all the medical bills that were paid--not necessarily what was billed, but what was paid--and then add a reasonable amount for your pain and suffering. Make sure your property damage, rental car, and any other charges are paid. If you have wage loss damages from missing work, provide copies of pay stubs to show what you are making in the hours you missed. Advise them of any miscellaneous damages like a broken phone or lost property. If the insurance company is offering a quick and fair settlement in a relatively small injury case, settle it. But make sure your entire medical treatment is completed and you are not going to get any worse or have any additional medical treatment. You do not want to settle a case and need further unknown medical care or additional uncompensated damage. I advise folks in such circumstances to add some for pain and suffering and settle their case. A lawyer like me cannot add value to that case and you will put more money in your pocket without me and my fee. Make sure they pay your settlement. You want to make sure you are the only one on the check and they are not paying your other medical providers. You also want to make sure they are not paying any other money to med pay or any other “lien holders.” A lienholder is any person or entity that might have a legal claim or lien on the settlement monies you are getting. The cases where you should settle yourself are ones where the fault is clear, you are not significantly or permanently injured, your injuries have healed fully and relatively soon after the accident, and the amount of the total claim is relatively low. Remember you do not have to accept what the insurance company offers. You can negotiate higher. If the insurance company starts saying they are not going to pay you adequately or that it is your fault or playing games with you, that is the time where you want to talk to a lawyer. Never settle a claim at the scene of the accident or before you know the full extent of what your damages are. Remember that if the other driver doesn’t have insurance, you can still make an uninsured claim against your own insurance company and get fully paid. In worker’s compensation cases, make sure you get paid 2/3 of your weekly wages. Make sure your employer pays all your medical bills. Cooperate with the nurse case manager or claim representative so they can expedite your care and claim. Then ask what your disability rating is and what they are offering to pay you to close out the case. Make sure this is fair. Many workers do this. Ask them to explain it to you. If your employer/insurer is not fair or candid with you – call a lawyer. Workers’ compensation lawyers should only take legal fees on the lump sum disability payment at the end of the case (usually 25% in Missouri and 20% in Illinois but my firm charges less in bigger cases).