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Loss of Wages and Compensation in a Personal Injury Case: How Are They Calculated?

gavel and cash moneyWhen people are injured due to the negligence of another entity, whether a person or an organization, they are entitled to receive damage awards for loss of wages and compensation.

Calculating loss of wages

How are loss of wages calculated? Some of it is relatively simple. If you are a salaried employee and an accident that is the fault of another party causes you to lose a week’s work because you are unable to work, the calculation of loss of wages will equate to the wages, or salary, you would have received during that week.

Loss of wages also applies to situations where you may have to miss work to receive treatment or follow-up for your injury. If you need to take off a half-day due to the injury, you are entitled to compensation for that loss of wages as well.

You will need to provide documentation of your wage loss. This is done via a letter from your employer stating what your regular wages are. A doctor’s narrative letter is also often part of the documentation. The doctor’s letter specifies the nature of your injury, why you were unable to work, and when you can return.

If you are self-employed, your lost wages can be calculated from your financial statements and past year’s taxes. Your potential wages can be determined from this financial information. If your business was growing, the percentage increase can also be determined and added to the loss of wages claim.

Calculating compensation

The term “compensation” applies to all other benefits that you would have received had you not been injured. You are entitled to financial damage awards for all the compensation you would have received but lost through injury.

You are entitled, for example, to financial recompense for any sick days or vacation days you were entitled to. If you used them for time off work to have your injury attended to or to recover, you should be compensated for each day. You were not able to use them as sick or vacation time.

Some companies have policies that cause employees to lose vacation or sick time if it is not used, or that require a certain period of work to accrue. If you were off work a sufficient time that you lost sick or vacation days under these policies, you are also entitled to compensation.

Compensation for benefits includes any company holidays or personal days you would have received if you had been working. You are entitled to payment for those days.

Finally, you are eligible for compensation for lost opportunities and events in which you would have participated had you not been injured. A business conference that would have connected you with important clients, for example, can be compensated monetarily.

If you receive an annual bonus but it is reduced by the company for time off work, or you were unable to make sales that would have contributed to your bonus, it is grounds for receiving financial compensation.

Use of a forensic economist or accountant

If calculating wages or compensation is complicated, your attorney may advise a consultation by a forensic economist or accountant. If your injury requires a lengthy period of recovery, for example, your company may move you to another role. If the salary is less, you are entitled to ask for compensation. If you need to look for another line of work due to your injury, you are entitled to compensation for job search activities. A forensic specialist can calculate the amount of damages you are due.

Talk to an attorney about recovering lost wages

Ellis Law Firm has been defending victims of personal injury in California for more than 20 years. We are experienced at seeking aggressive compensation for loss of wages and compensation. If you need to talk to a personal injury attorney in Los Angeles about recovering lost wages and compensation, call us now at 1-800-INJURED. We will be happy to schedule a complimentary consultation at your convenience. We will fight to make sure you receive just compensation for your injuries.

More “calculating lost wages” resources:

  1. National Association of Forensic Economics, http://www.nafe.net/
  2. Forensic Accountant, http://www.acfe.com/career-path-forensic-accountant.aspx

How to Claim Loss of Consortium in a Personal Injury Lawsuit

California civil code provides legal remedies for spouses and registered domestic partners who have suffered because their partner was injured by the negligent or wrongful actions of a third party. This particular cause of action is known as “loss of consortium,” and it is commonly raised in personal injury lawsuits arising from car accidents, workplace injuries and other types of civil litigation.

Why does the law afford spouses the opportunity to seek financial compensation when it was their partner who was physically harmed? In many cases involving catastrophic or other life-altering injuries, the victim isn’t the only one who suffers. Their entire family endures the repercussions of caring for their injured loved one, who may be unable to work let alone perform daily tasks like housework or offering emotional support and guidance to his or her partner. Many auto accident injuries can result in lasting physical and psychological trauma that can deprive a spouse of the affection, care, love and assistance that was the foundation of their marriage before the accident.

Loss of consortium damages

Loss of consortium, also called loss of companionship, is a type of non-economic or general damages that may be sought in a personal injury claim. This cause of action accounts for the burdens, hardship and mental suffering on the part of the victim’s spouse.

Some examples of loss of consortium:

  • The loss of enjoyment or reduction in sexual relations
  • The loss of the ability to have children in the future
  • The loss of the enjoyment of your marriage
  • The loss of services (deprivation of the injured spouse’s assistance in running the home)
  • The loss of financial support previously offered by the injured spouse
  • The loss of moral support
  • Increased economic burdens because of the injured spouses’ reduction in earnings
  • The injured spouse is no longer able to provide emotional support or comfort
  • The inability to enjoy certain activities together because of the injuries incurred
  • Having to deal with an injured spouse who suffers from depression, anxiety and mood swings because of the accident

Proving loss of consortium

Generally speaking, in order to have a viable cause of action for loss of consortium, the spouse’s injury must be disabling in nature for a judge or jury to award monetary compensation. When determining loss of consortium damages, the courts will look at the stability and length of the marriage, the severity of the victim’s injuries, as well as the life expectancy of both partners.

If the injured spouse is expected to make a full recovery in a short period of time, the spouse may have a more difficult task in proving the requisite degree of harm suffered. As an example, a spouse would have a greater likelihood of recovering loss of consortium compensation if their partner sustained a traumatic brain injury compared to a broken arm that would heal relatively quickly.

In accidents where the health and stability of the marriage has been seriously compromised because of the injury, a loss of consortium claim can add tremendous value to the potential recovery.

Free personal injury case review

Ellis Law Corporation is a leading personal injury law firm headquartered in Los Angeles. Our legal team understands the pain, suffering and hardships that entire families face after a serious accident. If your spouse or domestic partner endured severe injury, we invite you to schedule a consultation with an experienced California personal injury lawyer free of charge by calling 1-800-INJURED.

Additional Loss of Consortium Resources:

  1. Justia, 3920. California Loss of Consortium (Noneconomic Damage) https://www.justia.com/trials-litigation/docs/caci/3900/3920.html
  2. Legal Dictionary, Loss of Consortium http://legal-dictionary.thefreedictionary.com/loss

 

How Is Loss of Income Calculated in a Personal Injury Case If I Am Self Employed?

Wooden gavel laying on American dollarsPlaintiffs file personal injury lawsuits in order to obtain compensation for their economic losses. For most people, the calculation for “loss of income” is fairly straightforward – based on wage statement and tax return data. A business owner or self-employed worker faces a more difficult path to proving what has been lost as a result of the accident injuries.

What counts as “lost income” for a self-employed plaintiff?

As a self-employed professional, you are entitled to recover:

  • Lost income – How much time did you have to take off your usual workload?
  • Loss of earning capacity – Did you lose skills and abilities for a time after your injury?
  • Lost profits – Did you lose current business as a result of your injuries?
  • Lost business opportunities – Did you lose pending business opportunities due to injury?
  • Loss of good will – Has your loss of availability hurt your relationships with current/future clients?
  • Sick leave and vacation pay – What sick and vacation pay would you have accumulated?

What proof do you need to prove self-employed losses?

Several years’ worth of tax returns is the preferred documentation. However, there are myriad reasons why you may not want to hand these documents over to the courts. They contain personal information such as spouse income, investments, charitable donations, and other sensitive data. Though these returns are confidential in the hands of the IRS, the courts waive this confidentiality once they appear in court. California law (Tax.C. §§ 19542, 7056) protects citizens from having to turn over their tax forms over the course of discovery and litigation.

Other sources to establish claim to income losses may include:

  • A letter from a client, customer, vendor, or business associate verifying your name, position, rate of pay, number of hours typically worked, and amount of time missed after the accident.
  • Letters from lost associates, verifying that the accident and injuries sustained prevented associates from doing business with you.
  • Bills of sale, invoices, appointment calendars, documentation of meetings and conferences, and payments received leading up to the accident can be used to show how much you were working and earning.

Additional considerations in calculating loss of income

The courts often pursue the following questions in their assessment of loss:

  • What type of business is it?
  • What type of person is the claimant?
  • Can a replacement manager be hired to maintain the business?
  • What portion of earnings are attributable to labor, and what portion is investment income returns?

In some cases, damages are calculated based on the cost of hiring a replacement, rather than an estimation of lost business profits – which can be very difficult to prove beyond a questionable doubt.

Who can help build a strong loss of income case?

Los Angeles personal injury attorneys at The Ellis Firm regularly rely upon a number of professionals to help build a strong case for our clients’ losses. Economic experts can testify on your vocational abilities, the market for your skills, and provide a reasonable estimate of loss based on tangible factors. Forensic accountants can study your past income and prepare a detailed report regarding your future income based on growth rate projections for your type of business and by scaling up the estimation of added customers. They can provide a glimpse into what your competitors were able to achieve to make a compelling case.

Contact California lawyers at The Ellis Firm for a free case review. We have experience obtaining maximum compensation for self-employed plaintiffs.

Additional “loss of self-employed income” resources:

How Are Pain & Suffering Damages Calculated?

Wooden gavel laying on American dollarsA personal injury settlement or jury award is meant to compensate the victim for losses suffered because of the accident – those losses are not always clearly measured. Pain and suffering is not easy to quantify the way medical bills are. There are some general practices that can help you understand how a pain and suffering award may be calculated.

Types of personal injury damages

A personal injury award can be made up of different components. First, it can be broken down into:

  • Punitive damages – to punish wrongdoing; and
  • Compensatory damages – to reimburse the plaintiff for losses.

The compensatory damages can then be broken down into

  • Special damages – also known as “economic damages”, these are based on a determined amount, like medical bills and lost wages; and
  • General damages – or “non-economic damages” like pain and suffering, which have no set monetary value.

Pain and suffering, therefore, is a type of general damages; under California law, personal injury victims are entitled to compensation for it. It can be broken down into two components: physical pain, including impairment to lifestyle and hobbies, and emotional suffering including anxiety, depression, and insomnia.

Determining pain and suffering amount

Even though California law recognizes the right to compensation for pain and suffering, there is no clear cut answer on how much it is worth. There are a few methods to arrive at a figure and not all of the factors are applicable in every case.

  • Multiplier formula – this is probably the most recognized, and the starting point in many cases. It uses what is known – the medical bills – as a basis to calculate the unknown by multiplying the “specials” by a number, usually between 1.5 and 4. Insurance adjusters often rely on programs that assign a multiplier based on the type of injury and then apply that to the total cost of medical bills.
  • Per diem formula – far more commonly used by some personal injury attorneys in trial, this asks the jury to assign a daily rate, like $100, for each day of pain and suffering the victim is expected to suffer and multiply it by the number of days it finds the suffering will likely continue.

These formulas are just the start; the number is then affected by factors such as:

  • Locale – some communities are more plaintiff-friendly while others tend to sympathize with defendants
  • Credibility, and even likability, of the plaintiff and witnesses
  • Exaggeration of injuries can offend jurors and hurt the award
  • Physical injuries that disturb jurors can lead to larger pain and suffering awards – eye injuries are one example where jurors tend to be more generous
  • The lasting impact matters – an injury that permanently prevents someone from taking part in favorite family activities will be worth more than one that only causes a short-term impairment

A personal injury lawyer can help

There are a lot of considerations that can affect a pain and suffering award but a qualified Los Angeles personal injury lawyer from the Ellis Law Firm will be able to speak from experience as to what a realistic award may look like. Call today to schedule a free consultation. We never charge a fee unless we win money for you.

Additional “calculating damages for pain and suffering” resources:

  1. Justia, California Civil Jury Instructions (CACI) 3905A. Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage), https://www.justia.com/trials-litigation/docs/caci/3900/3905a.html
  2. California Law Review, Placing a Price on Pain and Suffering: A Method for Helping Juries Determine Tort Damages for Non-monetary Injuries, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1672&context=californialawreview

March is Brain Injury Awareness Month

Thanks to the efforts of the Brain Injury Association of America (BIAA), March is once again being widely recognized as Brain Injury Awareness Month. With an overarching campaign theme of “Not Alone,” the advocacy organization and those who support it will seek to increase awareness and conduct outreach related to the millions of individuals affected by brain trauma each and every year.

Statistics underscore true impact of traumatic brain injuries

According to data from the BIAA, over 2.5 million Americans suffer a traumatic brain injury during the course of a year, with another million individuals experiencing the still-devastating effects of non-traumatic harm to the brain, such as stroke and seizure events. Startlingly, the yearly cost of disabilities and care stemming from brain injuries reportedly tops $82 billion for the 5.3 million coping with them. The “Not Alone” education campaign and platform is designed to enhance public awareness of the true scope of brain injuries and the unique needs and priorities of victims and those who love them. Outreach efforts associated with Brain Injury Awareness Month are intended to remove some of the stigma faced by brain injury sufferers, offer a sense of empowerment and highlight support programs and other resources available to patients and caregivers.

Important facts about brain injuries

The International Brain Injury Association indicates that brain injuries are the most significant driver of death and disability around the globe. Further, of all categories of bodily damage, brain injuries are the most likely to produce lasting impairment. There can be no doubt about the severity of the consequences regularly resulting from brain injuries, some of which include:

  • Onset of seizure disorders
  • Loss of short and/or long term memory
  • Cognitive impairments
  • Speech disorders
  • Aggression
  • Depressive disorders
  • Paralysis
  • Vision loss
  • Anxiety
  • Loss of spatial orientation abilities
  • Reduced impulse control
  • Impairment of social skills
  • Possible increase in risk of Alzheimer’s disease

How serious brain injuries frequently occur

There is a seemingly limitless number of ways in which an individual can experience a brain injury, many of which are sudden and traumatic in nature. Some victims experience mild or temporary disruptions in their routines, whereas others are left profoundly disabled for the remainder of their lives.

Common scenarios in which brain injuries occur include:

  • Car crashes
  • Sports-related accidents
  • Slip, trip and fall events
  • Worksite mishaps
  • Swimming/boating accidents and submersion
  • Physical assaults
  • Pedestrian collisions
  • Motorcycle accidents

Negligence and brain injuries in California

Sadly, an unacceptable number of serious brain injuries are the result of negligent actions or omissions on the part of others. When this occurs, there is a strong sense of unfairness, betrayal and uncertainty felt by victims and their families. Fortunately, it is possible for such individuals to seek compensation and a degree of accountability through the courts, though the process of prevailing is rarely simple or straightforward. It is often necessary to obtain the knowledgeable assistance of a team of experienced California personal injury lawyers able to marshal persuasive evidence, expert opinions and legal arguments on clients’ behalf.

If you or someone close to you is contending with a serious brain injury that was caused by the negligence of others, there is no time to waste in pursuing the resources and financial recovery you are certain to need now and well into the future. Serving the greater Los Angeles area for well over two decades, Ellis Injury Law is prepared to aggressively advocate for your rights and help you build a brighter future. For a non-cost initial consultation, contact us by calling 1-800-INJURED.

Additional Brain Injury Resources

  1. Brain Injury Association of America, Brain Injury Fact Sheet, http://www.biausa.org/brain-injury-awareness-month.htm#FactSheet
  2. Centers for Disease Control and Prevention, TBI: Get the Facts, https://www.cdc.gov/traumaticbraininjury/get_the_facts.html
  3. American Speech-Language-Hearing Association, Traumatic Brain Injury In Adults, http://www.asha.org/PRPSpecificTopic.aspx?folderid=8589935337&section=Signs_and_Symptoms

New California Concussion Law Takes Effect for Youth Sports Injuries

youth head injury concussionCalifornia lawmakers kicked off 2017 by enacting a new concussion law for youth sports. The protocol extends to young athletes the same preventative measures that were already in effect for high school and college athletes. The new law aims to cut down on serious injuries from concussions in younger, more vulnerable players. California personal injury lawyers understand the harmful effect that concussions and other brain injuries can have on victims and their families.

The youth sports concussion protocol includes the following steps:

  1. The player has helmet removed from the game and must sit it out.
  2. The player may not return until a doctor gives the okay after the athlete has been symptom free for at least 24 hours.
  3. The player must participate in at least one full contact practice before returning to a game.

About concussions

A concussion is a traumatic brain injury (TBI), caused by an external physical force that interrupts brain function. Concussions are often caused by a glancing blow or even from violent shaking.

Concussion symptoms do not always appear immediately – it can be hours or even days before the symptoms begin. Some danger signs of a more serious problem that warrant emergency treatment include:

  • Unconsciousness
  • Drowsiness
  • Weakness
  • Dizziness
  • Numbness
  • Headache that gets worse instead of going away
  • Unevenly dilated pupils
  • Nausea with vomiting
  • Confusion, disorientation, or memory loss
  • Emotional or personality changes

Pro athlete concussion litigation

Though a concussion is a relatively mild type of TBI, repeated concussions can lead to more serious and long-term brain injuries. As the severe impact of repeated sports-related concussions has grown more apparent, professional and amateur athletes have joined forces to fight against those who put their health at risk. Some notable recent concussion lawsuits include:

  • In 2015, former professional football players brought a class action lawsuit against the NFL. What began as a $675 million lawsuit has already reached a $1 billion uncapped class settlement and that number could rise dramatically if current players show symptoms at a higher than predicted rate.
  • In early 2016, current and former NCAA athletes filed a class action against the NCAA. The approved settlement was for $75 million but there could be further litigation on related issues because the athletes also have the ability to file tort claims against the NCAA and affiliated institutions.
  • In 2014, lawsuits filed by former professional hockey players and their families against the NHL were consolidated in multidistrict litigation in Minnesota. The cases may start heading to trial later this year.

Evaluating California youth sports injuries

Sometimes injuries happen because of an inherent risk of the sport. Other times, it happens because someone failed to take the necessary safety precautions.

Those involved in youth sports have legal duties, including to provide adequate training and explanation of the rules for the activities, supplying necessary and proper protective equipment, supervision suitable for the age group, pairing youth athletes to avoid potentially dangerous size and disparities, and post-injury care to minimize injury.

At Ellis Law Corporation, we are dedicated to fighting for the rights of injury victims. If you or your child has suffered a California sports injury, call 1-800-INJURED to speak with a Los Angeles sports injury lawyer for a no-cost consultation.

Additional “California youth sports injury lawsuit” resources

  1. Mayo Clinic, Diseases and Conditions: Concussion, http://www.mayoclinic.org/diseases-conditions/concussion/home/ovc-20273153
  2. Lexis Nexis News, BU CTE Researcher Objects to NHL Seeking Her Research Material For Lawsuit, http://www.lexislegalnews.com/articles/15344/bu-cte-researcher-objects-to-nhl-seeking-her-research-material-for-lawsuit
  3. California Legislative Information, AB-2007 Youth athletics: youth sports organizations: concussions or other head injuries, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB2007

How Personal Injury Lawyers Evaluate Paralysis Cases

LA ambulanceCatastrophic injury cases, such as those that involve permanent paralysis, can be particularly complex. This is partially because the true extent of the medical problems might not be immediately apparent, as patients who suffer from paralysis are at a much higher risk of developing secondary complications. Lawyers must also deal with the matter of assessing the anticipated future care costs that the patient will need over a lifetime. Because of these complexities, personal injury lawyers who take on these types of cases must execute carefully planned strategies in and out of the courtroom with the benefit of expert guidance from various consultants.

Reviewing the medical records and other evidence

One of the first steps that a personal injury lawyer will take to evaluate a paralysis case is to request all available physical evidence, most notably, the medical records of the patient. Paralysis occurs in several forms and it has many potential causes. In many cases, paralysis cannot be blamed on the negligent actions or misconduct of another party. It may be attributable to viral infections such as Guillain-Barre syndrome, for instance. The types of paralysis cases that lawyers can litigate stem from another person’s negligence.

Paralysis caused by negligence is often attributable to a car, truck, motorcycle, bicycle, or pedestrian accident. It may also be the result of nursing home negligence, and slip and fall incidents. Although civil cases usually arise from acts of negligence, paralysis cases may constitute intentional torts. These refer to acts that were intentionally perpetrated by a person, such as assault.

During the review of the patient’s medical records, police reports, photographic evidence, video surveillance, and any other available physical evidence, personal injury lawyers will consider the following factors:

  • The nature and extent of the patient’s injuries
  • The economic and non-economic damages that have resulted
  • The duty of care owed to the patient by the prospective defendants
  • The evidence that shows a breach in the duty of care
  • The evidence that links this breach to the patient’s injuries

The presence of a duty of care, its breach, the causation of injuries, and the existence of damages are all the essential elements that must be present in every personal injury case.

Calculating compensatory damages

Once personal injury attorneys have established the merits of a particular paralysis case, they will move on to assess the damages. For complex paralysis cases, it’s often necessary to consult experts such as a life care planner, registered nurse consultant, and earning capacity evaluation expert. These consultants can conduct a comprehensive evaluation of the patient’s past, current, and future medical needs and losses. The damages sought in a catastrophic injury lawsuit typically include compensation for hospitalization, diagnostics, surgeries and medical treatments, rehabilitation therapy, durable medical equipment, medications, and in-home health aides. Additionally, plaintiffs may seek compensation for their lost wages, loss of earning capacity, pain and suffering, emotional anguish, and loss of enjoyment of life.

Bring your personal injury case to Ellis Law

Ellis Law is comprised of a team of seasoned personal injury lawyers serving families in Los Angeles. Our trial experience combined with the extensive resources of our firm can work to fight for your family’s right to maximum compensation for medical expenses, lost wages, and the lifetime of care needs that accompany paralysis and other permanent disabilities. We invite California families to request a free case review by calling 1-800-INJURED today.

Additional “paralysis-related personal injury lawsuit” resources

  1. American Bar Association, Personal Injury, http://www.americanbar.org/groups/public_education/resources/law_issues_for_consumers/injury.html
  2. Christopher & Dana Reeve Foundation, Living with Paralysis, https://www.christopherreeve.org/living-with-paralysis

Personal Injury Checklist: What You Should Bring When You Meet Your Lawyer

personal injury - wrongful death 2Most personal injury lawyers offer free legal consultations to those who have been unjustly harmed in an accident. After you’ve made an initial appointment with a reputable attorney, you’ll want to gather all documents relating to your injuries, medical bills and other pertinent papers and put them in a single binder. This information is essential in helping your attorney understand all the circumstances and facets surrounding your case.

If you’re wondering exactly what is needed, the following is a personal injury checklist for your first legal consultation.

Information checklist for your personal injury lawyer

Your attorney will need very detailed facts about your injury accident, so be prepared to offer answers to the following questions:

  • Name & Address of Ambulance
  • Name & Address of hospital emergency room where you were taken
  • Dates of admission to the ER & hospital
  • Names & Business addresses of physicians, surgeons and specialists who examined and treated you
  • Names & Addresses of all medical professionals, including chiropractors, who saw you for treatment
  • Names & Contact Info of people involved in the accident
  • Names & Addresses of witnesses to the accident
  • Contact information of investigating law enforcement
  • Dates and number of days of missed work
  • Name & Address of insurance adjustor you have spoken with about your accident
  • Names & Addresses of anyone you have talked to about your injury

Document checklist

Your folder should also include the following documents:

  • Detailed accident report
  • Copies of all written statements regarding the accident
  • Proof of health insurance coverage, ie Veteran’s insurance, Medicaid, Blue Cross, etc.
  • Copies of all correspondence with your insurance company regarding the accident
  • Copy of car insurance policy that includes “coverage certificate” outlining what types of coverage you purchased and policy limits
  • If the injury happened in the home, bring your homeowners or renter’s policy declarations page
  • Medical insurance policy or disability papers
  • All Medical bills arising from the accident
  • Proof of lost income or earnings
  • Prescription medication receipts
  • Receipts for medical expenses related to your injury including assistive devices, crutches, etc. You can also bring receipts for things like bandages, Tylenol, and braces.
  • Receipts for items you had to fix (such as emergency vehicle repairs) because of the accident

First legal consultation is free

Don’t worry if you cannot locate one of your receipts or accident documents – a good personal injury lawyer can help you source pertinent information that can be used to build a solid case. Remember that your attorney will use this first consultation to assess the merits of your claim, whether you slipped and fell on a wet supermarket floor, or were rear-ended by a distracted driver. Your initial meeting is also the perfect time to ask about your attorney’s experience, fee basis and expectations. They will also outline logistics for filing an insurance claim or personal injury lawsuit and applicable deadlines.

If you or someone you love was hurt in an accident, a knowledgeable injury attorney can ensure you get the compensation you need and deserve. For more than 20 years, Ellis Law Corporation has been advocating for California residents who were injured through no fault of their own, recovering over $100 million in settlements and verdicts.

Schedule a free consultation with a skilled Los Angeles personal injury lawyer today by calling 1-800-INJURED.

Is My Health Insurance Company Entitled to Part of My Personal Injury Settlement?

Couple Reading Letter In Respect Of Wife's Neck InjuryWhen you settle a personal injury claim, you might not be entitled to keep as much as you are expecting – the entities that paid for part of your medical bills, including the health insurance company and Medicare, can require reimbursement. An experienced personal injury lawyer like the attorneys at Ellis Injury Law will account for this and help you obtain maximum compensation to fully compensate for your injuries.

Health insurance company right of subrogation

Insurance is a special type of contract and one of the terms in most contracts for health insurance is what is known as a lien subrogation right.

The insurance company’s lien subrogation right applies in very specific situations. If your injury is caused by someone else and you recover for your medical bills from a third party, your insurance company is often entitled under the policy terms to be reimbursed for the amount it paid for those same bills related to that injury.

Unfortunately this right of subrogation catches many injury victims off-guard. They agree to a personal injury settlement assuming that the amount will be available for their ongoing expenses, but instead it may go to the insurance company.

Be aware of Medicare liens

Even more tricky is a lien by Medicare, Medicaid (or Medi-Cal) or the Veteran’s Administration. When these government entities have paid for any of an injury victim’s treatment that may have been caused by the third party, they also have a right of subrogation.

Handling a Medicare lien, for example, in a personal injury case is fact-intensive and, at times, tedious. It is important to double check all Medicare charges identified to ensure that they were indeed related to the personal injury. It is also important to follow the status closely and if the lien is not paid it can lead to penalties and interest. Veteran’s benefits, however, have higher priorities under federal law and must be paid before the other liens.

Benefits of a Los Angeles personal injury lawyer

It may be clear that coordinating medical subrogation liens can take some juggling and this is one area where an experienced lawyer is indispensable.

Most people are unaware of the effect that the subrogation lien can have on their settlement, but a dedicated injury attorney will take these into account. Experienced personal injury lawyers also have the skills necessary to involve the insurance companies and Medicare representatives in the settlement talks and potentially negotiate a lower lien payment, preserving a greater amount of settlement proceeds for the victim.

The committed and compassionate personal injury attorneys at the Ellis Law Firm are determined to make sure clients are fully compensated for their injuries. This often means negotiating with insurance companies and other medical lien claimants to make sure the injury victim’s rights are protected. If you have been injured and believe someone else is at fault, contact a representative at the Ellis Injury Law Firm for a free consultation.

Additional Medical Subrogation Resources

  1. CMS.gov, Reimbursing Medicare: Medicare’s Demand Letter, https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Reimbursing-Medicare/Reimbursing-Medicare-.html
  2. CMS.gove, Coordination of Benefits & Recovery Overview, https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Overview.html
  3. California Department of Health Care Services, Personal Injury Program, http://www.dhcs.ca.gov/services/Pages/TPLRD_PersonalInjuryProgram.aspx

Football Concussions and Personal Injury Lawsuits

personal injury - brain injury 1Some may argue that to compete in contact sports is to assume the risk of injury. That is not always the case, say California personal injury lawyers. Football players, for instance, are willing to assume a certain amount of risk, but they purposefully equip themselves with helmets and padding to decrease their chances of befalling serious harm. The public holds safety equipment manufacturers to a reasonable standard – to sell a product that actually works as designed, and to back sales claims with facts.

The case against Riddell and the NCAA

Recently, five plaintiffs – active from 2010-2014 — filed personal injury lawsuits against Riddell, a football helmet maker, after suffering long-term brain injuries. The helmet manufacturer claimed the “Revolution” line of helmets “reduced concussions by 31 percent” and used self-funded internal studies to validate their marketing materials. In 2000, a biomechanics firm sent a report to Riddell, demonstrating that no football helmet could prevent concussions.

Lawyers say that the NCAA sacrifices player safety for profits, and unfairly promises a free ride to college for star athletes, knowing full well the players can’t cash in with damaged brains. Many of the players in the suit say they were unable to finish school or hold jobs after their football careers.

Additionally, Hall of Fame running back Paul Hornung, who once played for the Green Bay Packers, is seeking $50,000 to cover his medical costs related to dementia. Another personal injury lawsuit was filed on behalf of a group of former NFL players who say they were not warned of long-term health risks like chronic traumatic encephalopathy, a degenerative brain disease.

Experts use advanced imaging to prove a concussion’s effects

To win compensation, the first argument must be to establish that some type of injury has occurred. This can be challenging for concussions, where players may or may not show medial signs of injury on brain scans. Purdue University researchers have been studying the impact of concussions on the brains of high school football players since 2009. One season, Jefferson High School referred six players with visible concussion symptoms to Purdue University researchers one season, but scientists identified 17 players with brain changes through use of Magnetic Resonance Imaging and sensors located in the helmets.

“We are seeing damage not just to neurons, but also to the vasculature and glial cells in the brain,” said Eric Nauman, a professor of mechanical engineering at Purdue. He added: “I was particularly disturbed that when you get to the offseason – we are looking somewhere between two and five months after the season has ended – the majority of players are still showing that they had not fully recovered.”

Some kids had no outward symptoms, but their brains had rewired themselves to skip around the parts of the brain still healing from concussions. Chemical changes in concussion victims’ brains included a 50 percent decrease in neurotransmitter glutamine in the motor cortex part of the brain, compared to control subjects.  

“In some patients, there are structural changes to the brain after a single concussive episode,” according to Yvonne W. Lui M.D. from NYU Langone School of Medicine. Her team was the first to show specific, measurable volume loss in certain areas of the brain, like the anterior cingulate and the precuneal region, following a concussion. These regions are correlated with memory, attention, and higher order executive function, as well as anxiety and depression. A single impact caused lasting symptoms — including brain atrophy, depression, memory loss, dizziness, headaches, and attention deficit — for 10-20% of major traumatic brain injury patients that persisted over a year later.

What it takes to win a concussion personal injury lawsuit in California

Meeting these challenges head-on is no small feat. It takes a law firm that has the resources to pay for sophisticated testing and investigative work, as well as a record of accomplishment in winning complex personal injury lawsuits. California attorneys at The Ellis Law Firm say the most important work of these personal injury lawsuits is done through diligent investigative work. Andy Ellis explains: “A judge dismissed a class action lawsuit against helmet maker Riddell in 2015, stating that the lawsuit failed to illustrate precisely how the company’s marketing claims were false.”

To win these tough cases, attorneys can use a variety of compelling materials, including:

  • Testimony from experts on biomechanics, traumatic brain injuries, researchers, and helmet manufacturers
  • Studies disproving the effectiveness of Riddell’s helmets
  • Studies showing the effectiveness of other helmets compared to Riddell’s
  • Marketing materials that boast fanciful claims not backed by any science
  • Internal memos from Riddell that clearly show executives knew their product was unable to live up to claims
  • Medical evidence showing evidence of brain damage and long-term injury

Riddell and NCAA go on the defensive

The courts mandated that the NCAA pay $75 million in July 2016 to establish a 50-year medical monitoring program for college athletes and a $5 million program to research treatment and prevention of concussions. New provisions mandate pre-season baseline testing for concussions and return-to-play guidelines. The NY Post reported that an appeals court is expected to approve a $1 billion settlement between the league and former players.

Even though concussions are challenging to prove medically, they are also difficult to disprove. As a result, Los Angeles personal injury lawyers expect to pursue more settlements in these cases in the future.

Concussion? Contact a lawyer today

Experts can be found to testify on any side of the dispute, which levels the playing field in the legal profession. “Ultimately, you’ll need an expert who is very confident, well-spoken, and on-point to sway the judge and jury. Either you’re paying top dollar for someone who has been consulted in many trials, or you’re spending many hours to groom the expert just right,” explains Mr. Ellis.

This willingness to invest in their clients sets the Ellis Law Corporation ahead of the pack. If you have suffered brain damage or cognitive decline after playing football, contact us for a free case evaluation to explore your legal options.

Additional “football concussion lawsuit” resources

  1. Star-Telegram, Fort Worth firm files concussion lawsuit against helmet maker Riddell, http://www.star-telegram.com/news/local/community/fort-worth/article129912509.html
  2. USA Today, Judge OKs $75M class-action concussions settlement against NCAA, http://www.usatoday.com/story/sports/ncaaf/2016/07/14/college-football-concussions-lawsuit-ncaa/87097982/
  3. NJ Advance Media, J.’s top federal judge tosses football helmet lawsuit — for now, http://www.nj.com/news/index.ssf/2015/01/njs_top_federal_judge_tosses_football_helmet_lawsu.html
  4. NY Times, Paul Hornung Sues the Helmet Maker Riddell Over Concussions, https://www.nytimes.com/2016/07/08/sports/football/paul-hornung-sues-the-helmet-maker-riddell-over-concussions.html?_r=1
  5. ESPN, Former NFL players sue helmet manufacturer Riddell Inc., http://www.espn.com/nfl/story/_/id/17081577/former-nfl-players-file-lawsuit-helmet-manufacturer-riddell-inc
  6. LA Times – Concussion Settlement Brain Damage http://www.latimes.com/science/sciencenow/la-sci-concussion-settlement-brain-damage-20130829,0,4864404.story
  7. Radiological Society of North America, Single Concussion May Cause Lasting Brain Damage, http://press.rsna.org/timssnet/media/pressreleases/pr_target.cfm?ID=663
  8. Purdue University, ‘Deviant brain metabolism’ found in high school football players, http://www.purdue.edu/newsroom/releases/2015/Q3/deviant-brain-metabolism-found-in-high-school-football-players.html