6 MOST COMMON TYPES OF DAMAGES FROM PERSONAL INJURY CLAIMS When someone files for a…
THE PROCESS OF A PERSONAL INJURY CLAIM
When you are injured in an accident because of another person’s actions, you enter the world of insurance claims. In effect, you are thrust into a vast jungle of procedures, laws, regulations, and processes that are typically very confusing and overwhelming. If you have never navigated the maze of the the claims resolution process, your best option would be to enlist the assistance of an experienced tour guide – a good Injury Attorney. In the claims processing world, you start the journey by finding and hiring a good Injury Attorney. Luckily, when you enlist the help of a good injury attorney, they can lead you on a course that follows a logical and predictable path to recovery and resolution. A good Injury Attorney should provide you with a basic understanding of the terrain – the laws governing your type of injury claim – as well as the best route to take – the recommendations for each step of the process. Ultimately, some claims are resolved by settlement, and some claims are resolved through lawsuit.
FACT: 90% of injury claims are resolved by settlement without the need for filing a lawsuit.
Having a basic understanding of the claims process is like having a simple map through the jungle. With a basic understanding of the process, you will not feel so lost, and you should experience less anxiety by knowing what is coming next. Clear expectations allow you to plan ahead and avoid the traps and pitfalls that exist in the insurance world jungle. The following material is designed to provide an understanding of the basic aspects of managing an injury claim. It explains how WEIERLAW assists our clients in navigating the insurance jungle and maximizing the outcome of the claim experience.
UNDERSTANDING INJURY CLAIMS
What exactly is a “personal injury claim”?
A “personal injury” involves a physical or emotional injury to a person – as opposed to an injury to a business or property.
A “claim” is the formal process the law has provided for an injured person to seek and recover financial compensation from the at-fault person or entity.
Typically, the process involves an insurance company that is contracted by the at-fault person (or entity) to pay compensation the at-fault person may be legally obligated to pay to the injured person. Most people cannot afford to pay for the value of injuries they accidentally cause another person, so they purchase insurance. Automobile insurance is a perfect example. Auto insurance is purchased to pay for the damage that is caused when someone accidentally (or negligently) injures another person while operating an automobile. Learn more about Dealing with an Auto Accident in Washington State.
STATUTE OF LIMITATIONS
Washington State limits the period of time that a person has to file a lawsuit against another. These limitations are codified in the Washington State Statute of Limitations. The purpose of these time limits is to help prevent people from making claims for an injury that they received many years prior. Once the statute of limitations has expired, a person can no longer file a claim or even attempt a lawsuit.
Washington’s Statute of Limitations vary based upon the type of suit to be conducted:
Personal injury – 3 years (RCW 4.16.080)
Claim against State agency – 3 years (RCW 4.92)
Product Liability – 3 years (RCW 7.72.060)
Against a federal agency – 2 years (RCW 4.16.100)
Injury from Assault – 2 years (RCW 4.16.100)
Contract dispute – 6 years (RCW 4.16.040)
FINDING AND HIRING AN ATTORNEY
Injury claims and insurance claims are highly regulated processes. They are governed by State and Federal Statutes and state case law. Moreover, the laws surrounding injury and insurance claims tend to favor insurance companies. Therefore, if you are not familiar with the laws affecting an injury claim, you should seek the advice of an attorney.
Why? Simply put – the benefits of retaining legal assistance greatly outweigh any downside. Of course, you do not HAVE to have an attorney. However, statistics show that injury victims who retain an attorney, on average, receive larger settlements than injury victims handling their claim without an attorney. Furthermore, claimants represented by an attorney will deal with less stress and are less likely to suffer financial hardship than those who are represented.
To find a GREAT Injury Attorney, start by researching Injury Attorneys in your geographic area. This usually starts with a Google search. Once you have a few names to consider, follow up research can be done on review sites like “www.avvo.com”, their website, or google reviews. Make sure your search concentrates on some specifics of your case. For example, if you were injured by a doctor performing a medical procedure, you want to search for attorneys that take medical injury cases. If your case involves being injured at a construction site, you need to include that detail in your search. Not all Injury Attorneys practice in the fields of Medical Negligence (Medical Malpractice) or Construction Site Injuries.
It is also highly recommended that you look for an attorney that has a focus on your type of injury case. Attorneys who have a “general practice” or who advertise multiple areas of practice (criminal defense, divorce, and personal injury) may not have the experience or resources to get you the optimal recovery. You should look for an attorney who has the expertise to handle your type of claim. Brain injuries or wrongful death claims require very different processes than a simple parking lot fender bender.
After you have narrowed your search, set up a meeting with them. Don’t be afraid to interview several attorneys before making a final decision. Almost all Injury Attorneys offer free initial consultations. They should answer any questions about your case and let you know the options to move forward. Also, do not feel compelled to relay the information another attorney has provided to you. You will want to be able to compare the attorney’s answers to your questions. Some questions you may want to ask include:
- What percentage of your practice involves injury claims like mine?
- What other areas of law do you practice?
- How many trials have you had? How many of them were injury cases?
- Why should I hire an attorney for this case?
- How does your fee structure work?
- Do you charge more for lawsuits or appeals?
- Can you get me more than I can get for myself without a lawyer?
- How do you get more?
- Do you help with property damage?
- Do you assist with managing payments of the bills?
- What makes your services different than the other attorneys I am considering?
This is a great way to start because it allows a personal introduction to see if your attorney-client relationship will work out. The ability to communicate is extremely important for you. If the attorney is put off by these types of questions, you may want to ask yourself “why?” When comparing answers, pay attention to which attorneys provide only self-serving vague answers as opposed to clear, concise explanations. (“I can get you more because I am a great attorney!” versus “I can get you more because I know what information the insurance company’s software considers more valuable.”)
Most Injury attorneys work on a contingent fee. A contingent fee structure means that the attorney’s fee is calculated as a percentage of the recovery. The higher the recovery, the higher the fee, that also means that they do not get paid unless they help you get a settlement. This is how most Injury Attorneys charge. The advantage of the contingent fee structure is that you can hire a very good attorney without paying up front. Many people could not afford to hire an attorney if they had to pay up front. Contingent fee arrangements also mean you won’t have to stress on whether you will be able to pay for your attorney. If you’d like to learn more, we have a blog 5 Reasons to Hire a Personal Injury Attorney.
THE PROCESSES OF HANDLING YOUR CASE
While this first step may be slightly different at other law firms, at WEIERLAW, once the case been accepted it is entered into our database. You are assigned a case manager (also known as a Pre-Litigation Paralegal) that begins the initial handling of your claim. This includes opening claims with insurance companies, notifying them of our representation, and starting to gather documentation. Learn more about how we handle communication between us and your case here.
Law firms that focus on injury cases like WEIERLAW, use special tools and resources to build a solid case. Paralegals obtain police reports and public records are requested; satellite photos of the scene of the accident are retrieved; witnesses are contacted; and insurance coverage is investigated. They also arrange to obtain the initial emergency treatment records, such as ambulance, hospital, or ER records. Obtaining these initial records saves time later. Our office then conducts the initial investigation. This consist of reviewing the physical evidence including the accident scene, the vehicles, the injuries (if visible), and talking with eyewitnesses. If the accident was substantial or the facts of the accident are questionable, an accident reconstructionist may be employed to analyze the accident. Accident Reconstructionist are expensive experts which are usually only retained for larger cases which warrant higher cost. Occasionally, a private investigator is retained to track down an elusive defendant, or to track down the whereabouts of a particular vehicle or witness. When available, video footage is retrieved from dash-cams and police investigations.
For Slip & Fall, Animal Bite, and Construction site Cases, etc. We have a special team to evaluate and investigate the circumstances of the injury. The investigation is similar to an automobile accident investigation but is more case-specific as needed.
If your car is damaged and repairs are necessary, the paralegal assists you with reimbursements, Loss of Use benefits, rental cars, and recovery of damaged merchandise. If your car is a total loss, they assist you by generating a valuation report of your car and by negotiating a proper settlement for your property damage. If your car is repaired and suffers a Diminution in Value (DV), the paralegal can assist you by obtaining a DV appraisal report and negotiating a DV settlement on your behalf. WEIERLAW provides many of these services without additional fee. However, many law firms will not assist with the property damage issues. Here is a list of the 6 most common damages from personal injury claims.
Once the initial investigation is completed and immediate concerns are met, your file is monitored and maintained as you concentrate on your physical healing and treatment. This stage typically is the longest stage. At WEIERLAW we monitor your progress with monthly phone calls and assist your medical providers with obtaining payments from insurance carriers where necessary. It is very important that you tell us who you have treated with and if you receive any bills. This helps the client focus on recovery knowing their case is being managed by professionals. When there are financial concerns in getting the health care providers paid, we investigate other financing options with the client to make every effort to help them get the care they require.
Once you have notified us that you have completed your accident-related treatment, your file is reviewed for any missing documentation and your medical records and billing statements are requested from the various health care organizations where you sought treatment. It is important to note that not every organization works at the same pace in this stage. Some organizations will provide copies of the records and bills quickly. Other organizations and large HMO’s take much longer to provide records. The average wait time for records is about 60-90 days. However, even then, some providers do take longer. Pandemics, economic downturns, and other issues can affect the timing and ability to retrieve records. Due to changes in health care laws over the past several years, retrieving your medical records has become a longer, much more difficult process. Newer HIPPA laws extend protections for your privacy by requiring organizations to scrutinize the information they send out. That means they must review the records before they send them – and that adds time to the process. In addition, more health care providers and organizations are merging and being acquired. Records management for some organizations has become centralized, whereas other organizations are outsourcing the management of their records. Many are now working with outside confidential document management companies. Some organizations perform the billing functions in-house, while others are outsourcing their billing functions. The result is – it now takes much longer to get your records and bills.
Here are WEIERLAW we have a specific department to handle records acquisition. The records department is responsible to acquire, read, and summarize your health care treatment records. This department matches up all your records and bills to make sure we have a complete set. Frequently we find additional health care providers listed in the medical records that we were not previously known to us. We then order those additional records. They make sure your records are requested from each provider. We employ a request and follow-up tracking procedure to make sure we are effectively pursuing the necessary information needed for the case. The records are then read, and irrelevant records are earmarked. In addition, unusual circumstances or injuries are noted for further evaluation by our in-house medical experts.
Due to the inconsistency of how timely health care organizations provide records, a claim file may be in the records department for a very short time – or a very long time. On average the file remains in this department approximately 60-90 days.
WEIERLAW is one of the very few firms that incorporate a Verifications/Reconciliation Department. This department assures that we know what bills were paid by which insurance carriers, and what bills remain unpaid. We often find that insurance companies will advise us that they paid a particular health care provider, but the health care provider will report that they never received payment. We take it upon ourselves to make sure that all the numbers match and all the payments and receipts are accounted for. By performing this verification and reconciliation function, you are assured that when your case is settled, you will not be “surprised” by additional bills that were not accounted for in the settlement. On average, the file reminds in this department for another 60-90 days.
When the necessary documentation has been procured and all the information is available, the case goes through an evaluation process. In-house medical specialists may review the file to establish whether any special medical experts are necessary to support injury claims. Economists may be consulted for significant lost income claims. Medical diagnostic codes (ICD-10 Codes) are reviewed, and records are screened for coding omissions to assure that all the proper information is presented. This process helps secure the best possible settlement offers by presenting accurate medical support for the claimed injuries. A detailed analysis of the affects the injuries have had on the claimant’s life is gathered. Then a comprehensive Settlement Proposal (also called a Demand Package) is created to send to the insurance company to initiate settlement negotiations
SENDING A DEMAND LETTER
This is when the fight begins. The process starts with a demand letter, which is the central focus of any personal injury claim. The letter states the argument to the insurance company and why they should pay for the damages. Details included:
- A description of the injury-causing event;
- Why the defendant is legally responsible/liable for the incident;
- A summary of the claimant’s injury treatment;
- ICD-10 codes for all injuries sustained;
- A summary of any claims for lost income; and
- A detailed description of the affects that the injuries have had on the claimant.
This letter is written and then reviewed by 2 paralegals and at least 1 attorney before being submitted to the insurance company along with pertinent medical records and investigative documents to support the claim for damages.
The insurance company then reviews the request for compensation. Sometimes the insurance company refuses to pay a claim because:
- They feel the accident was the plaintiff’s fault
- Lack of evidence
- They do not believe the injuries sustained were caused from the accident
- Any other reason they see fit not to pay
Our attorneys are the primary negotiators at WEIERLAW. You can rest assured knowing that we utilize every resource at our disposal to negotiate the best possible settlement for you. Since we are experienced trial lawyers, the insurance companies take us seriously when we threaten to file a lawsuit. We have settled thousands of cases; arbitrated hundreds of claims; and won hundreds of cases in trial.
If the insurance company doesn’t want to pay, or won’t pay nearly enough, then the injured party and their attorney are able to move onto the next step in the claim process: filing a complaint. However, 90% of the time, a settlement is reached through negotiations without having to file a lawsuit. Learn more about negotiations and settlements here.
FILING A COMPLAINT (Only when a settlement cannot be reached)
A “Complaint for Damages” referred to simply as a Complaint is filed with the appropriate Court to start a lawsuit. It gives official notice to the Court and the defendant that a lawsuit is being filed and the plaintiff is seeking compensation for their damages. The lawsuit is filed against the at-fault driver, but the at-fault driver’s insurance company is usually who pays the settlement or verdict. However, lawsuits can be filed against a business, government agency, or private citizen. The Complaint will:
- All parties involved;
- Court’s jurisdiction over the case;
- The Plaintiff’s legal claims;
- Facts and evidence that support the claim; and
- A Demand for judgement against the Defendant.
When the complaint is filed, you and your attorney will then have 90 days to serve the Complaint to the defendant. This delivery is almost always done in person, that way there is proof of delivery. A professional process server is used to handle this procedure. This is called “Service of Process.”
When the defendant receives the notice that a lawsuit has been filed, they have 20 days to respond to the Complaint. If they fail to file an Answer with the Court, the plaintiff may ask the Court to award a default judgement in the favor of the plaintiff. However, if they do respond (which is the most likely case), then the case will proceed as usual.
A great deal of information is available regarding the process of a lawsuit. However only 10% of injury claim cases result in the filing of a lawsuit. More on understanding what happens on a trial
Once your case has been settled or the litigation process has been completed, a paralegal is tasked to obtain the documents necessary to process the settlement. These documents are usually Releases, Dismissals, and settlement checks! A paralegal from the closing department will contact you to sign the Settlement Release and prepare the detailed accounting for the settlement funds called the Receipt and Disbursement (R&D). Because we take excellence seriously, at WEIERLAW, your case is re-verified and re-reconciled one last time to assure that all bills and insurance payments have been accounted for. Sometimes funds are held in trust pending resolution of insurance subrogation issues or liens (reimbursements). Your complete physical file is then scanned and archived in our system. You always have the option of obtaining your physical case file once the case is completed and archiving has been finished.
Reviewing The Process
CONCLUDING AND REVIEWING ALL THE DETAILS
Its important to be patient during the process of a personal injury claim. While it is easy to get upset at how long the system takes for a traumatic situation to be handled, having a personal injury attorney will increase your chance of a better outcome than without. This is because as you have learned, there are a lot of details in managing a successful personal injury claim. WEIERLAW is dedicated to “Do the right thing, always” and that is why we implement such a detailed process in getting the best outcomes for our clients. A personal injury can be a traumatic life event and should be cared for with the utmost respect and responsibility for the individuals involved. If you have any further questions about a personal injury claim process and want more details, visit our blog for more information!