SECTION A: CLAIM VALUE AND LAWYERS 1. How much is my claim worth? SECTION B: AUTOMOBILE ACCIDENTS 14. What should I do if I’m
injured in an automobile accident? SECTION C: ON-THE-JOB ACCIDENTS 29. What should I do if I’m
injured on-the-job? SECTION D: MISCELLANEOUS
ACCIDENTS SECTION A: CLAIM VALUE AND LAWYERS 1. How much is my claim worth? When an injured person first consults a personal injury lawyer, one of the first things this client would like to know is how much the case is worth. An experienced personal injury lawyer can usually give a broad range of value at the first meeting. The lawyer knows that the individual is entitled to be compensated for the following: 1) Physical pain and suffering He also knows that research and experience have revealed that lawyers negotiate settlements 3 ½ times higher than unrepresented individuals.* But a good lawyer would never try to answer this question with certainty, however, until he has completed a full investigation into the accident, all the damages and expenses have been totaled, and the client's doctors have reported how the injury will affect the client in the future. Often it is several months after the accident before all the necessary factors are known which will enable the lawyer to evaluate the claim and begin settlement negotiations with the insurance company. If the client insists on a quick settlement, this can be accomplished, but almost always the client will get less than the full value of the claim. Another danger of settling too soon is that a latent or unknown njury may appear weeks or months later. If the claim has been settled and the responsible party released, it cannot be reopened. In our firm we endeavor to settle every claim for "top dollar". We are not a personal injury "mill" which sacrifices full value in favor of quick and easy settlements. That is, we deal in quality, not in quantity. We make every effort to achieve a full and fair settlement before we resort to filing a lawsuit in court. Because David Gordon is board certified, insurance companies know that he has the experience and skill to file a lawsuit if the settlement is too low. This usually results in a fair settlement for our client without a lawsuit. Our goal is always the same: To achieve the maximum recovery for our client. *Insurance Research Council – 1999 study 2. What can I do to increase the value of my claim?
Shortly after the accident, everything is fresh in your mind. But with each passing day, your memory of the events fades. For example, it is common for a driver to be apologetic at the scene of an accident, to explain that he was “in a hurry” or that he “was late.” These are important admissions if the other driver’s insurance company decides to deny coverage and blame you for the accident. So write down everything that happened at the scene, including exactly what was said by all drivers. If you were hurt on the job, write down how the accident occurred, as well as the names of the witnesses and the name of every supervisor you informed. If you were injured as a result of faulty equipment, record all of the details about the product, including the manufacturer and serial number, if possible. If a safety engineer or supervisor made a comment about the failed product, write it down! You cannot record too much information.
In addition to your medical bills and lost earnings, the driver at fault is responsible for your physical pain and suffering, and for your loss of enjoyment of life. Because it could be several months, or possibly years, before you are asked to describe the impact of the injury on your life, a written record is essential. Keep a daily record of headaches, insomnia, medications taken, pain suffered, etc. And don’t forget to keep up with activity you previously enjoyed, but in which you cannot now participate (i.e. exercise, golf, dancing, automobile trips, etc.). Mental suffering is also something you should be compensated for, so record your discouragement, sadness, and frustration that is related to your rehabilitation process.
The doctor’s office is no place to be a hero. Your doctor (or nurse assistant) is trained to record everything you complain of and everything else you say related to your condition. For example, he records your comment that you “feel pretty good today” or that you are “much better.” Likewise, he makes a note when you tell him that you “can’t sleep” or that “it hurts whenever you roll over in bed.” When the doctor’s records are provided to the insurance company of the other driver, these notes are important. If the doctor is asked to testify on your behalf, these notes are critical because the doctor will rely heavily upon them. If you contend that your shoulder was keeping you awake at night for two months after the accident, but you never told your doctor about it, the claim is questioned. On the other hand, the doctor can powerfully corroborate every complaint you are making if you properly inform him during the course of your treatment.
Your doctor’s records will reflect exactly what limitations and instructions he gave you. And the other driver’s insurance company will almost always see these records eventually. If they can find evidence that you did not obey your physician, then they limit the liability of their driver. For example, if the doctor told you to stay off work for a week and you returned in three days, then you can be held responsible for your slow recovery. Similarly, if he prescribed an exercise regimen that you ignored, then you will be blamed for the lingering problems.
After you, your doctor will be the single most important witness on your behalf. If he likes you, it is only natural that he will want to help you with his testimony. On the other hand, if he found you abrasive or argumentative, his testimony will be nothing more than the reading of his office notes.
Lost earnings are an important element of the compensation due an injured person. But the injured individual must connect the work absences to his injury. Even if your employer does not require written excuses, a note from the physician will be valuable when you are later trying to prove that your absences were the result of the injury.
Missed appointments are kept in the doctor’s records. They are blemishes on your character and the authenticity of your need for medical treatment. Do everything you can to keep your appointments or call to reschedule.
Nothing can sink an injury case faster than false testimony. Many times the injured party is not lying, but is only exaggerating slightly the extent of the injury. For example, the injured individual tells the insurance company or the other attorney that because of his pain he can no longer take automobile trips and has not taken one since the accident. Yet the doctor’s notes reflect that he drove to Florida over spring break with his family. Another example is a person who claims he can no longer play sports with his son, yet a private investigator has a video of the man in squatting position catching a child’s 70 m.p.h. fastball. These cases are doomed, despite the fact that a significant injury was suffered.
You know that a picture is worth a thousand words.
So it
The responsible party’s insurance representative
is trained to show you courtesy and concern in an effort to minimize
your claim. His effort to win your confidence is aimed at one goal
– to keep you from retaining legal counsel and thereby be
required to pay you all that you are owed. Any payment for your
pain, suffering and loss of enjoyment of life is tempting, but you
must be patient. You only get one payment for the injuries that
you may suffer for the rest of your life. A lawyer with personal
injury expertise will guard your right to be fully compensated. 3. Do I need a lawyer if I’m injured in an accident? Yes, if you have a significant injury. Insurance companies do not want you to hire a lawyer. That’s because they know they will have to pay a larger settlement if you are represented by a lawyer. The Insurance Research Council found that the settlement figure was 3 and 1/2 times higher for individuals with lawyers. Statistics prove you benefit. Immediately after being seriously injured in an
accident, you are "thrown" into an adversarial legal system.
In other words, the insurance company representing the party at
fault for the accident has in place a team of adjustors, investigators
and attorneys who are working against you seeking to pay as little
as possible to settle your claim. 4. What is the advantage of having a board certified lawyer? Less than 2% of Tennessee lawyers are board certified. Certification is important to you because it assures you that specific lawyer’s skills, integrity, and experience have been carefully scrutinized by a national board of experts and found to be exceptional. The certified lawyer knows how to handle insurance companies that are trying to pay you as little as possible. And equally important is the fact that the insurance companies know that a board certified lawyer has the skill and experience to take the case to trial if the offer is unfair. Your most powerful advantage is a lawyer known
to be a highly skilled trial lawyer. The odds are much greater that
such a lawyer will be able to successfully negotiate an out-of-court
settlement for you. 5. How can I afford a lawyer to help me? Almost all injury lawyers work on what is called
a contingency basis; that is, they are paid contingent upon the
recovery they make for their client. This is usually based upon
a fraction of the recovery, such as one-third. If there
is no recovery, then there is no fee. In response to a personal injury claim, an insurance
company may offer a sum of money up front, wanting to settle the
claim immediately. If the victim has no legal representation, and,
likely, little knowledge of the value of the personal injury claim,
it is doubtful that the adjuster will make a reasonable offer. The
insurance company is hoping that the claimant will take the money
and absolve them of any additional financial responsibility. Once
a claim has been settled, the claimant has legally released the
defendant from further payment, even if the victim’s condition
worsens.
These and other factors play a part in how quickly
a case can be resolved. Taking a case to trial, in general, takes
a long time. Settlement, mediation or arbitration may significantly
speed up the resolution of a case. 12. Can the lawyer pay my medical bills while my case is pending? No. Lawyers are prevented by the ethical rules
governing their conduct from making payments for their client’s
medical expenses. A lawyer is permitted, however, to pay an expert
witness such as a physician to examine his client and render an
opinion regarding his client’s condition. 13. Can the lawyer loan money to me while my case is pending? No. Similar to the medical bill prohibition, a
lawyer is not allowed to loan money to his client. It is thought
that this creates an adversarial relationship between attorney and
client that is not in the best interest of the client. SECTION B: AUTOMOBILE ACCIDENTS 14. What should I do if I’m injured in an automobile accident? Motor vehicle accidents are the leading cause of injury and death in the United States. Americans collectively drive almost 3 TRILLION miles per year and 3 MILLION people were injured or killed on our roads last year alone. Always anticipate the possibility of becoming a motor vehicle accident "statistic" and make sure you protect yourself by following these procedures: 1. Call the police immediately. 2. Record the other driver's name, address, phone number, license number, registration, and proof of insurance. 3. Gather the names, addresses and phone numbers of any witnesses who can be contacted by your attorney at a later date; and try to convince them to remain at the scene until the police arrive. Beg if you have to! 4. Seek medical attention
as soon as possible even if you "don't feel that bad". 5. Report the accident to your insurance company. 6. Cooperate with your insurance company, but do not volunteer any theories about the circumstances leading up to the accident. 7. Never, never, never discuss the accident with the other driver's insurance company before you consult a lawyer. 8. Document your injuries with photographs. Some injuries such as bruises and cuts heal quickly. As a result, the visual record can be critical to your case. 9. Take pictures of the vehicles, interior and exterior. 10. Consult with an attorney experienced
in the practice of personal injury law before you attempt to recover
your losses. 15. What if the responsible driver’s insurance company doesn’t call me after the accident? If they don’t call you, call them. If you
don’t know the name of the insurance company, call the other
driver to find out. If you don’t know the name of the other
driver, get the police report from the department who investigated
the accident. Memphis, Germantown, and Collierville Police Departments
have separate locations for accident reports. 16. What if the driver at fault doesn’t have insurance? If the driver at fault has no liability insurance,
then the only other place to look for insurance is your own automobile
policy. If you have a provision in your policy called “uninsured
motorist” coverage, then your company must pay your medical
bills, lost earnings, and pain and suffering, just as it would if
you had injured another motorist. If you have liability insurance
only, then there is no coverage that will compensate you for your
injuries. The state has no provision for motorists injured in accidents
where there is no insurance. (If you are injured as a result of
criminal conduct such as driving under the influence, there is a
state criminal injuries compensation fund that may help you.) 17. Will my premiums go up if I make
a claim against my uninsured motorist coverage? 18. In addition to the negligent driver, is the owner of the vehicle responsible for my injuries? Yes, if the driver was on or about the business
of the owner at the time of the accident OR the
driver was operating what the law calls a “family purpose”
automobile. A family purpose automobile is one maintained by the
head of the household for the enjoyment of the household. Children
are generally operating family purpose automobiles, which makes
the parent liable for their actions. If neither driver has insurance, the injured person’s
only remedy is against the negligent driver himself. The court will
hold him responsible for your injuries and losses, but pursuing
the case through the court system and then collecting the judgment
from the individual is extremely difficult without a lawyer. Unfortunately,
few lawyers will take such a case because the prospects for ultimate
recovery are so dim. 20. What if the responsible driver does not have enough insurance to properly compensate me for my injuries? Tennessee law requires that motorists have only
$25,000 of liability of coverage. If the driver who injures you
has only a minimum limits policy ($25,000), then this is the maximum
that his insurance company can be forced to pay. Any additional
payments will have to be made by the driver himself, which as explained
above in No. 11, are very difficult to obtain. To add to the difficulty
against the driver personally is the fact that the insurance company
will not pay you until you release in writing your rights against
the responsible driver. 21. What if I am injured avoiding a collision with another vehicle? Even if there is no contact with the other vehicle,
you can recover from the other vehicle if you can demonstrate that
it was his negligence that caused the accident. Uninsured motorist
insurance applies to this situation in the event the other car disappears,
but you must have an independent witness who was not in your car
to verify the fault of the vanishing vehicle. 22. What should my auto insurance company pay me if I’m injured? MED-PAY – If the occupants of your car are
injured in an accident, this portion of your policy pays their medical
bills, usually up to an amount such as $5,000. These payments are
made regardless of whose fault was the accident. Insurance companies
are not quick to advise their insureds who have been injured that
they have this coverage, so it is important that you know about
it. In addition to med-pay, if the other driver was at fault and
had no insurance, then your uninsured motorist coverage will pay
your bills, lost earnings, pain and suffering, and loss of enjoyment
of life up to the amount of your coverage. 23. Does the negligent driver’s insurance company have to pay off the note on my car? No. This is a common misconception. The insurance
company is obligated to pay only the fair market value of your vehicle
at the time of the wreck. Since it is possible that you owe more
than the value of the vehicle, you may still owe the lien holder
something after the settlement. 24. Does the negligent driver’s insurance company have to provide me a rental car? Yes, but only for as long as it takes to repair
your vehicle or settle the total loss. Once they make payment to
you for the total loss of your vehicle, you must return the rental
or make arrangements to pay for it yourself. 25. Must the negligent driver’s insurance company pay for my medical treatment? Yes, but not until the conclusion of your claim.
There may be limited payments made for medical expenses if you were
a passenger in the responsible driver’s car. But otherwise,
the payments for medical bills will be part of the total settlement
to be made when you have reached what is called maximum medical
improvement. 26. Who is going to pay my medical bills if I’m injured in an auto accident? There are three possibilities here. First, your
health insurance company should pay the bills, even though they
are the result of an automobile accident. In addition, your driver’s
automobile insurance policy (or your policy if you were the driver)
may have coverage for medical bills, usually up to $5,000. This
is called medical payments coverage and is part of most full coverage
policies. These payments can be made as soon as the medical expenses
are incurred. Finally, the other driver’s auto policy is responsible
for your bills if the accident was his fault. You will not see the
money from the responsible party’s insurance company until
the final settlement is made, but compensation for the full price
of the medical bills is part of the settlement. 27. How much time do I have to file a lawsuit if I’m injured in an automobile accident? Adults injured in automobile accidents have one
year from the date of the accident to resolve their case by settlement.
If a settlement is not reached, they must file suit on or before
the anniversary of the accident to preserve their rights! Minors
have until their 19th birthday to settle a claim. It is important
to note here that the claim of the minor’s parents for medical
expenses must be resolved on or before the anniversary of the accident;
otherwise, suit must be filed to protect their claim. 28. Do I have to repay my health insurance company when I settle my injury claim? Yes. Even though you paid a premium for your health
insurance company to pay your bills from the accident, all health
insurers require their policy holders to reimburse them from the
injury settlement with the responsible party. As a practical matter,
some companies do not request the repayment, but all are entitled
to it if they so choose. SECTION C: ON-THE-JOB ACCIDENTS 29. What should I do if I’m injured on-the-job? First, report your injury to your supervisor.
The law requires that you give notice of the injury to your employer
within 30 days of the accident. Next, get emergency medical treatment
if needed. Your employer will be responsible for the charges. Finally,
ask your employer for a panel of at least 3 physicians to choose
from for treatment of your injury. You have the right to select
a physician from that panel. 30. What money am I entitled to if I’m injured at work? An injury at work is an unexpected blow to the family budget. Not only are you miserable with pain and discomfort, but you worry about how you are going to pay the mortgage and the utility bill. The state legislature has established many rules that control the employer’s conduct when an employee is injured at work. Following are a few of the key ones:
If your company employs at least five people, state law requires that it provide workers compensation insurance for its employees. This means that if you are injured at work and the attending physician excuses you from work for at least 8 days, you are entitled to pay beginning on the 8th day. You will not, however, receive your full wages or salary. Instead, your employer is obligated to pay only two-thirds or 66 2/3% of your average weekly earnings. Keep in mind that average weekly earnings is the same as your average pay before deductions over the past 52 weeks, including overtime. Make sure that your employer has included all money earned when calculating your average weekly earnings. If your disability continues for 14 days, your employer is obligated to pay you from the first day of your excused absence. As long as your doctor excuses you from work, you should receive a check for two-thirds of your average weekly earnings.
If, in the opinion of the doctor, you have suffered
a permanent injury to any part of your body, regardless of how slight
a permanent injury, you must be paid for that disability by your
employer. This is true even if your employer fired you while you
were off work recuperating. In fact, you may be entitled to more
money because you were not able to return to your previous employment.
The formulas for computing what you are entitled to for a permanent
injury have been set by the state legislature and are too complicated
to discuss here. But any lawyer with workers compensation expertise
can help you understand what you deserve for your permanent injury.
A lawyer with workers compensation experience
can protect an injured worker’s right to medical benefits,
income during the period of rehabilitation, and payment for any
permanent injury. Since the payment for the permanent injury is
based on a formula established by the Legislature, and because the
formula can produce a wide range of results, a lawyer can see that
you are paid at the high end of the lawful range. State law limits
the lawyer’s fee to 20% of the compensation gained for the
employee. Since the consultation is free, it makes sense to speak
with one about your situation before you settle your claim. 32. Can my employer fire me for making a worker’s compensation claim? No. Tennessee courts have repeatedly ruled that
even an employee at will (one without a contract) cannot be fired
for making a workers compensation claim. 33. Is my employer required to hold my job for me while I recuperate? No, unless you qualify for protection under the
Family and Medical Leave Act, which is a federal law that gives
workers 12 weeks of unpaid leave without risk of losing their job.
Ordinarily, an individual must have been employed for one year to
earn this protection. You should consult a lawyer to see whether
you qualify. As a practical matter, most employers do hold the job
for the injured worker because the failure to do so means that the
worker will be entitled to receive more money for his injury. Yes, but your choice must be made from a panel
of at least three doctors provided by your employer. Many employers
do not follow the state law that requires them to give you a list
of three doctors to choose from. Therefore, request a panel before
you go to their doctor. Lawyers with workers compensation experience
are familiar with most doctors on the panel and can help you make
a wise choice of physician. 35. How much time do I have to settle my case when I’m injured at work? An injured worker has one year from the date of
the last payment by his employer for his benefit. If the workers
compensation company paid a medical bill on December 15 for an accident
that occurred in September, then the worker has until December 15
of the next year to settle his case. If he does not settle his case
by that date, he must file a lawsuit to preserve his rights! Yes. On the issues of surgery, impairment, and
diagnosis, the injured employee is entitled to a second opinion
from that same panel of physicians selected by the employer. But
you must request it! 37. Can I receive unemployment compensation from the state when I’m injured at work? No. While you are off work on a doctor’s
excuse, you are not eligible for state unemployment compensation.
In order to qualify for state unemployment benefits, you must be
able to work. While you are recuperating, however, you should be
receiving temporary total disability benefits under your employer’s
workers compensation insurance. This amounts to two-thirds of your
average weekly earnings. 38. If I’m injured at work, can I sue my employer for negligence? No. Even if your injury is the fault of the employer
or a co-worker, the only avenue for recovery from the employer is
the state worker’s compensation law. Though a claim for negligence
against the employer (i.e. giving employee poorly maintained machinery)
would bring more money, the state legislature has cut off that option.
The only remedy against an employer for injury at work is worker’s
compensation. 39. Is anyone other than my employer legally responsible for my injury at work? Yes. The manufacturer of the defective equipment (i.e. ladder, scaffold, harness) is responsible for the injuries caused by a defective product. If the manufacturer is found to have placed an unreasonably dangerous product in the stream of commerce, it will be obligated to pay all of the worker’s damages, including lost income, pain and suffering, and loss of enjoyment of life. This is a much larger amount than was paid by the employer for the same event. If you or a co-worker is injured at work, investigate
to determine whether the accident was the result of a defective
product. If it was, the injured worker will be able to seek full
compensation, as opposed to the lesser payments made under workers
compensation. If you are injured at work as a result of another
company’s fault, you have the right to sue the other company
for your injuries. For example, if you fall into an unmarked hole
on another company’s premises while you are delivering, they
are legally responsible for your injuries. You would be entitled
to all of your lost income, as well as compensation for pain and
suffering and loss of enjoyment of life. These are items of damage
that are not part of your workers compensation recovery. Keep in
mind that you will be obligated to reimburse the workers compensation
company from your settlement proceeds. 41. Is the general contractor liable for my injuries that occurred while I was working for a subcontractor? Yes. In the construction industry, the general
contractor is responsible for all of the subcontractor employees,
as well as his own employees. Therefore, even if the subcontractor,
such as a roofer or electrical company, has no workers compensation
insurance, the general contractor is liable. 42. Is the company to which I was assigned by a temporary employment agency responsible for my on-the-job injuries? Maybe. If you can show that the assigned company
had the right to control your work and that the work being done
was essentially the work of the assigned company, the employment
agency and the company should be liable for your injuries. 43. What if I’m injured while driving a company vehicle? Suppose a local route driver is injured in an
accident while on his way to make a delivery. First, it is important
to know that worker’s compensation benefits apply even if
the accident is the employee’s fault. If the accident is not
the employee’s fault, then the injured worker should also
be compensated by the other driver. Of course, if the responsible
driver is also an employee of the injured worker’s company,
then there is no additional claim against him. But if he is merely
another motorist, or an employee on the business of another employer,
then there is a valid claim against him. Worker’s compensation
applies, but the driver at fault is also obligated to compensate
the injured worker like any other injured motorist; namely, for
medical bills, lost earnings, pain and suffering, and loss of enjoyment
of life. (Remember, however, that if you get paid by the negligent
driver, the workers compensation insurance company is entitled to
reimbursement for everything it previously paid). 44. What if my employer doesn’t have workers compensation insurance? Contact the Department of Labor at (901) 543-6433
and tell them your employer is not providing you with benefits for
your injury at work. Not only are there monetary penalties for failure
to comply with the law, but the Department of Labor has the authority
to order the employer to provide benefits. 45. If I have been injured at work, am I eligible for social security disability benefits? Yes, if upon your recovery, you are still unable to work, you may be eligible for social security disability. In order to qualify, you must convince the social security administration that because of your medical condition, you are incapable of any form of employment for which you are qualified. Your doctor’s opinion, and the opinion of a social security doctor, is critical to this analysis. 46. Is my employer liable if I’m injured at work by defective equipment? Yes, but only under workers compensation law. Whenever
a worker is injured as a result of defective equipment, or a dangerous
situation he was placed in by his supervisor, or the fault of another
employee, he wonders whether his employer is responsible for the
injuries and wage loss suffered. The answer is yes, but only to
the extent of his obligations under the state’s workers compensation
law. This means that the employer is responsible for medical care,
two-thirds of the lost wages, and a payment for any permanent injury.
But the employer is not responsible for the other third of the lost
income, nor is he responsible for the pain and loss of enjoyment
of life that will certainly be suffered. SECTION D: MISCELLANEOUS ACCIDENTS 47. Is a store owner responsible if I get hurt in their store? Yes, if your injury is the result of a dangerous
condition about which the store owner knew or should have known.
For example, if you fall in the restroom that has just been mopped
by the cleaning staff, there is liability if there were no warning
signs. On the other hand, if you slip in the aisle of a department
store, it will be difficult to prove that the store knew or should
have known about the small puddle of water or other beverage on
the floor. 48. Is the landlord responsible if I’m injured at the apartment? Like the store owner, the landlord is only responsible
for a dangerous condition that he knows or should know about. What
makes this case especially difficult is the fact that a tenant who
has lived in an apartment for any length of time should also know
about a dangerous condition and is thereby equally responsible for
the injury. 49. Is a homeowner responsible if I get hurt on their property? Like the store owner and the landlord, the homeowner
is only liable for injuries resulting from a dangerous condition
that he knows about or should know about. An unmarked hole in the
yard or a broken step are things that could result liability. Homeowner’s
insurance usually provides for payment of medical bills incurred
as a result of injury on the premises, but nothing more unless there
is negligence as described. The answer depends upon where the injury occurred and the nature of the particular dog that attacked you. There is a state law and a Memphis city ordinance against permitting a dog to run at large. Therefore, if a dog running at large attacks you, the owner has violated this law and should be responsible for your injuries. In fact, most homeowner’s insurance applies to injuries caused by the owner’s dog. If the attack occurs while you are on the property
of the owner, then whether you recover will depend upon whether
the owner knew you were coming onto the property and should have
restrained the dog. Naturally, if the dog had vicious propensities,
the owner will probably be responsible for the injury, regardless
of where it occurred. LAW OFFICE OF DAVID E. GORDON 1850 Poplar Crest Cove • Suite 200 • Memphis, TN 38119 Toll Free: (866) 794-7406 Off: (901) 881-1538 • Fax: (901) 682-8887
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