Lawyer's Guide to California Nursing Injuries (Part 2)

Early Stages

Early in the process, you should engage in an extensive and detailed interview with your attorney. Be forthright about your medical history, employment history, and factors relevant to the accident or injury. The clearer the picture you provide, and the more questions your attorney asks, the better. A thorough interview will allow your attorney to represent you more effectively. After all, it is your attorney's job to fully understand how your injury has impacted your duties as a nurse as well as your life outside your job, and to humanize you to the entities looking at your case from the outside, such as insurers, a mediator or a jury.

Your attorney will then inform the involved insurance companies that you are being represented by counsel. This does two things:

1. It begins the dialogue between your attorney and insurance representatives.
2. It prevents insurance adjusters from pestering you for information that is protected by your right to privacy.

Once the involved parties have been informed of your representation, your lawyer will begin collecting evidence that supports your claim, including documentation of any negligence and evidence supporting your damages.

In most personal injury cases, the liable (at-fault) insurance entity will vigorously try to get you to settle quickly. If you agree, it will most likely devalue your claim. Remember, you have only one shot at settling your case. Think carefully about this, because once you settle and accept a settlement check, that is it – there is no going back and re-opening your civil claim.

Because your health and well-being are of paramount importance, your personal injury attorney should not pressure you to settle before your medical treatment is completed. Your attorney should be patient and willing to let your medical treatment resolve before negotiating a settlement.

As your medical care continues, your lawyer should regularly contact you to ask how you feel, ask if there are any new medical complaints, and ensure that your doctor(s) and medical treatment are adequate. Your attorney should fully and consistently document your medical care to ensure that all crucial pieces of information are included in your case. When your health has stabilized, and your treatment is complete, your attorney will obtain all the claim-related medical records and billings to ensure that your care and costs are fully represented. Your attorney will also obtain documentation of any time you have lost from work, so a claim for lost income can be made.

Pre-Lawsuit Settlement Negotiations

Once the necessary documentation has been gathered, a "Demand Package" is prepared. A Demand Package is sent to the at-fault party's insurance company asking for a specific total amount in settlement of all your claims. The ideal Demand Package will present your total picture. Details of the accident and collected evidence will be attached as exhibits, along with medical and billing records from all your health care providers. Your Demand Package should also indicate if you will require future medical care. Payroll records, pay stubs, and the like will be included to detail the amount of work missed.

The Economic Damages presented in the Demand Package will include:

Medical Expenses - Past and Projected Future

All related medical bills that are reasonable and necessary may be recoverable. These medical bills include emergency bills, hospitalization, medical treatment and prescriptions, regular treatment from a chiropractor, physical therapist or doctor of osteopathic medicine, surgeries, medication, and medical appliances such as a wheelchair, walker, or brace.

If a health care provider has assessed that you will need future medical care, an estimate for the cost of that care will be included as well.

Wage/income loss refers to your loss of income from the date of the accident to the day you return to work. Your employer must verify that you were not able to work due to your medical condition. Your doctor or clinician will give you a medical release to allow you to take time off. If you do not present a medical release from a physician, the insurance company may contest your inability to work, so make sure to obtain one and submit it to your employer.

You will need to provide proof of the wages you lost as a direct result of the injury, so obtain copies of your paystubs indicating how much time was taken off, plus the amount of your gross pay. If you used sick or vacation days, these are also recoverable, because you would not have been forced to use those had you not been injured.

With regard to future wage loss, our firm works closely with vocational experts including forensic economists, whose specializations include determining the loss of earning capacity based on factors such as the physical and/or mental limitations caused by the injury, age, employment history, specific job skills, and education and earnings history. These experts apply this data to work-life expectancy tables, the earnings of other nurses in the state with the same education and experience levels, and then factor in inflation, social security, and other statistical data. Using all this information, they are able to forecast what you would realistically lose in future income so it can be included in a damages claim. After all, injuries do more than cost you earnings now – if you cannot work for an extended period, they can strain your budget for years to come. If an injury is so severe that it leaves you unable to return to nursing, it is important that your security and interests are protected.

The Demand Package lets the insurance company know what you have been through as a result of your accident, and what it will take to fairly compensate you for your losses. It is important that your attorney fully describes the effect of your injuries, not only on you but also on your family and friends, in order to maximize the general damages (pain and suffering) you will receive. After the insurance company has had a chance to review your Demand Package, your attorney should receive a settlement offer. This is an amount that the insurance company is willing to pay to completely resolve your claims. You can then decide to:

• Accept the amount.
• Instruct your attorney to negotiate with the insurance company to raise the offer.
• Decline the offer.
• File a lawsuit. Your attorney will advise you of the pros and cons of each option, but ultimately the choice is yours.

Filing a lawsuit is a hardball tactic. Many people hate the very thought because litigation can be risky, time-consuming, and costly. Even so, filing a suit is often the only way to obtain a fair resolution. The evaluation of cases by a computer has resulted in many unfair offers that leave claimants with no choice but to file lawsuits. A skilled attorney will file if it is the best option to ensure that you are treated fairly. And again, if your attorney is afraid of going to court, you may want to find more experienced representation.

Filing a Lawsuit - the Litigation Process

Once you and your attorney have decided that your best option is litigation, a "Summons and Complaint" is filed on your behalf. It must be filed within two years of the date of your accident, or you may be prohibited from pursuing a claim. If your accident involved a public entity, you must file certain paperwork within six months of the incident. It is crucial that you keep these dates in mind. Other states may have different timelines, but those are the terms here in California.

Once a lawsuit is filed, most courts allow a certain amount of time for discovery. Discovery is a formal process in which your attorney and the defense counsel exchange information regarding your case. The point of this process is to inform defense counsel of every claim you included in your Demand Package or intend to present at trial.

From defense counsel and through your attorney, you will likely be served with Form Interrogatories (pertinent questions), Requests for Production of Documents (requests for documentary evidence to substantiate your claims), and a Notice of Deposition (your required appearance in front of defense counsel to answer questions under oath). Defense counsel may also require that you appear for a Defense Medical Examination, especially if you are still having medical problems and/or expect to receive treatment throughout the litigation process. In that case, California law allows defense counsel to require you to submit to an examination by a doctor of their choice.

Different counties may have varying time requirements and rules. Most courts will require your attorney to be present in court within a few months of filing a lawsuit to formally meet with the judge assigned to your case. There, your anticipated course of action and time requirements will be established.

Arbitration & Mediation

Often, arbitration or mediation may be utilized to see if the parties can avoid a jury trial. In either proceeding, your case, as well as the at-fault party's case will be heard by an arbitrator or mediator. Arbitration cases can be set as binding or non-binding. In binding arbitration, the arbitrator gives an award that becomes the final judgment, and the case is over – no further action can be taken. In non-binding arbitration, either party can reject the arbitrator's award and proceed to trial. In mediation, the outcome must be accepted by both parties, so it is not binding unless an agreement is reached.

If your case fails to settle following non-binding arbitration or mediation, a date will be set for trial.

Trial – The End of the Line

Most courts make an effort to get cases to trial within 18 months of the date the lawsuit is filed, but due to backlog, it often takes longer. Your attorney may ask the court to delay your trial date if your injuries have not yet stabilized.

At trial, your attorney will present your claim in front of a jury. You will testify, as will other pertinent witnesses. If needed, your medical care providers will be called to testify about your injuries. The defendant(s) may testify, as well as any opposing experts.

After testimony is complete and all the evidence is submitted to the jury, it is the job of the jury to provide a verdict reflecting what they believe to be the value of your case. The jury's verdict then becomes a judgment, and in most cases, your case is done and (fingers crossed) you and your attorney are pleased with the result.

Unless the verdict is appealed, the trial is the last stop.

Obviously, this handbook provides only a brief summary of the litigation process, but hopefully, it gives you some understanding of what is involved. For more information on the trial process from beginning to end, our legal team has prepared a timeline graphic for your convenience.

You may wonder how insurance companies come up with the often-paltry settlement offers they submit to claimants. Many of these companies rely on a computer program to decide what your claim is worth – there is no human involvement at all. One such software program, used by dozens of insurance companies, is called Colossus. Insurance adjusters choose from roughly 600 injury codes and a severity value, which they input into Colossus to determine the value of a claim. 600 sounds like an ample number until you consider that healthcare providers utilize more than 12,000 codes to catalog injuries. Unfortunately, this inhuman way of categorizing pain and suffering doesn't consider who you are personally or how your life and dedication to nursing has been impacted by your injuries. These companies do not see you as a human being, they see you as a liability, one they want to reduce to the lowest possible payout. It is the job of your attorney to get the insurer (or a jury if things go in that direction) to see you for who you are: a nurse living a life full of dedication, promise, and responsibility who found your world dramatically altered by a person or set of circumstances that caused you to be injured. No one should treat you like a number.

If you sustain an injury on the job, first and foremost, report your injury if you are able. If you are working for a registry company, report to your immediate supervisor at the facility where you were physically working and also report it to the registry company for whom you are actually employed. You should be provided with a DWC-1 "Claim Form" within 24 hours, if not immediately.

Workers' Compensation (WC) insurance companies have medical provider networks dedicated to treating injured workers. If you are employed by a hospital, you will typically be sent to the hospital's occupational medicine department. If you work for a registry company, contact their human resources department to find out where you should go for treatment.

It is important to seek medical care immediately. Even a minor-seeming injury can become a serious problem over time if left untreated. And with the physical demands involved in nursing, any injury that causes limitations or incapacity can greatly affect your ability to earn a living. If your injury does not resolve in a reasonable amount of time, or if it gets worse, it is wise to consult with an injury attorney who understands the particular risks and demands of the nursing profession.

When someone has been injured at work, filled out the claim form, and provided the form to the Workers' Compensation insurance company, the insurance company has 90 days to investigate the claim and make a determination of whether to accept or deny the claim. If your claim is denied, it is imperative that you seek legal counsel immediately to protect your interests. Many denied WC cases can be successfully appealed.

If your claim is accepted, it comes with five primary benefits:

1. Medical Care: When a nurse is injured on the job, the first benefit available to them is medical care from a primary treating physician in the Workers' Compensation insurance company's Medical Provider Network (MPN). The doctor is responsible for examining you, ordering all treatment and diagnostic requests using an RFA form, and appealing for coverage of any treatment or diagnostic tests that were denied by the insurance company.
2. Temporary Disability (TD): If your primary treating physician provides "work restrictions" that the employer cannot accommodate, or has taken you off work completely, then you can collect temporary disability. Temporary disability is equivalent to two-thirds of your average weekly wage with minimum and maximum caps.
3. Medical Mileage: The third benefit available in the Workers' Compensation system is medical mileage. Insurance companies will pay .50 per mile to and from medical visits. For serious injuries, treatment mileage can add up quickly, so this benefit should not be overlooked. You can obtain a form to record your mileage from the insurance company or your attorney's office.
4. Permanent Disability (PD): Once your work injuries have healed, it is time to be assessed for permanent disability. Unlike temporary disability, which is paid at two-thirds of your average weekly wage, permanent disability is expressed in a percentage from 0% – 100%. Permanent disability assessed at zero percent is equivalent to being completely healed with no residual problems. 100% permanent disability is a complete and total disability with an inability to ever work again. For example, a quadriplegic needing in-home health care would likely be deemed 100% disabled. These percentages of permanent disability have dollar values. For example, a 10% level of permanent disability has a dollar value of $8,772. Permanent disability values of 70% to 99% also have a calculated life pension amount. 100% permanent disability means you would receive your temporary disability for the remainder of your life with an open medical award.
5. Supplemental Job Displacement Voucher (SJDV): If a medical-legal evaluator indicates that you can no longer return to your "usual and customary" occupation and your employer does not have a permanent modified position that will accommodate any permanent work restrictions, you are entitled to the Supplemental Job Displacement Voucher. The $6,000 voucher is non-transferable and can be used to pay for educational retraining or skill enhancement at state-approved and accredited schools. In addition to the voucher, the State of California has a Return-to-Work Supplement Program (RTWSP) and will mail approved applicants a $5,000 check that can be used to supplement the earnings lost from being injured.

Data from sources such as the Centers for Disease Control (CDC), the Bureau of Labor Statistics, OSHA and others, and real-world experiences expressed by healthcare professionals detail the most prevalent healthcare worker injuries in California. While this handbook may not include every possible injury (such as biologic and chemical hazards), it does offer insight into the issues most often faced by nurses and other hard-working professionals in the healthcare field. It also seeks to offer reliable avenues of support should you ever find yourself injured on the job or in an accident off-site that prevents you from being able to work or enjoy a reasonable standard of life.

According to the California Health Care Foundation, California is home to nearly 1.4 million healthcare workers, who together make up more than 7% of the state's total employment. Yet in a state with about 41 million residents, California has only 338,000 nurses – roughly 824 nurses for every 100,000 people – well below the national average. To meet the average, California would need to add another 74,000 nurses. This shortfall leaves California nurses particularly prone to workplace injuries. The CDC has found that workers in the healthcare field are more likely to suffer non-fatal occupational injury and illness than in any other job sector.

Extrapolating from this data, it is reasonable to conclude that California's nurses are at an even higher injury risk than other states meeting the average. Considering that at the time of this writing, California has the 5th largest economy in the world (you read that right - the world, overshadowing even Japan, Germany, and the UK) and hosts 1/8th of the US population, the relative risk to nurses is, frankly, astonishing. We believe that nurses should be exalted and protected, and yet an alarming number find themselves vulnerable to these common workplace hazards:

1. Understaffing: Obviously, this is a real problem for nurses and other healthcare workers in California. Too few health professionals managing more patients and working longer hours at a faster pace with less time to rest and recover accounts for a greater chance of suffering such injuries as pulled, strained and sprained muscles, ligaments and tendons, particularly in areas such as the lower back, shoulders, and neck. Understaffing can also lead to a lack of sufficient rest, emotional strain, and chronic exhaustion.
2. Overexertion and repetitive stress injuries: OSHA reports that healthcare workers are seven times more likely to suffer job-related musculoskeletal disorders than workers in other industries. Injuries include slipped and herniated discs, often resulting from repositioning or moving patients, and overuse injuries such as carpal tunnel, cubital tunnel, and osteoarthritis.
3. Slips and falls: The hectic pace and urgency of the medical environment coupled with cramped quarters, damaged, wet or slick floors, and the network of cords, tethers, tubes, and other hindrances provide the perfect setting for slips and falls. Because medical facilities typically have hard floors, a fall can produce real injury, including fracture, dislocation, and concussion.
4. Violence. It's heartbreaking to report, but far too often, nurses suffer violent attacks from patients as well as their family members or friends. In fact, more healthcare workers suffer from fractures due to workplace violence than from accidents. Hospital and prison/jail nurses are at particular risk, as are those who work in clinics that carry opioids and other drugs that are sought by addicts and thieves. But any healthcare environment can be risky, because angry, violent people end up in care facilities, whether as patients or visitors, just like average folks. In fact, over-reactive and violent people often have lives that see them visiting healthcare facilities relatively frequently because their temperaments and/or lifestyles may invite injury, illness, or overdose. Medical facilities and nurses are there to care for everyone, no matter who they are. Yet another reason nurses should be supported far better than they often are.
5. Needle sticks. Injuries can occur on any job, but needle sticks are a risk few workers outside the healthcare sector must deal with. Needles, scalpels, and other surgical tools can puncture the skin, cause infection, and spread disease. A needle contaminated by prior contact with a patient with a blood-borne illness like HIV/AIDS or Hepatitis B or C can be particularly dangerous.

Again, this is just a summary of injuries nurses and other healthcare workers encounter. We have interviewed nurses dealing with a wide array of on-the-job incidents that left them hurt and unable to work. And again, nurses, along with the general population, are often injured in auto accidents and other mishaps through no fault of their own. Even a so-called fender-bender can cause serious injury, particularly to the supporting muscles, facet joints, and discs of the cervical, thoracic and lumbar spine, sacrum, and coccyx. Given how physical a job nursing is, such injuries can greatly impact or prevent your ability to perform and function comfortably on and off the job.

For minor injuries where you lose no time from work, and you are back to your usual self within a few days, an attorney may not be necessary. For more serious injuries, however, it is a good idea to find an attorney who specializes in injury cases. The bottom line is that insurance companies like to save money and will do so at every opportunity. For instance, in calculating temporary disability benefits, a claims adjuster may not take into consideration your overtime hours worked when determining your average weekly wage. Medical care may not be authorized. Additionally, when it comes time to assess any permanent disability, the medical-legal evaluator selected is extremely important. They will be making the final decisions regarding whether or not the healing phase of your injury is complete and how much permanent disability you may have. While all medical-legal evaluators use the AMA Guides to the Evaluation of Permanent Impairment, some doctors do not go the extra mile in assessing all of your potential disability. A good WC attorney knows who these doctors are and avoids them at all costs.

Attorney fees in a Workers' Compensation case are contingency-based. This means that your attorney's fee comes out of the final settlement, and there are no initial upfront fees that you have to pay. Of course, when you're injured and suffering, the last thing you need is to be faced with paying fees to an attorney!

Attorney fees are typically 15% of the settlement. If the case is settled by something called "Stipulation With Request for Award," meaning a settlement with an open medical award, the attorney fee is 15% of the dollar value of the permanent disability. If the case is settled by a lump sum "Compromise and Release," the attorney fee is 15% of the entire lump sum.

In some instances, one incident may bring forth a claim in both arenas - Workers' Compensation and Personal Injury. Here are a couple of examples:

• You were driving as part of your work duties, and a negligent driver crashes into your vehicle. In this scenario, you would be eligible to file a WC claim through your employer and a claim against the negligent driver through his or her automobile insurance.
• You were working for a registry company, and the location at which you were working exhibited negligence that contributed to your injury. Under this set of circumstances, you would file a WC claim through your registry company and a personal injury claim against the negligent location.

When two concurrent claims exist - Workers' Compensation and PI - there will be an offset of any settlement reached in the personal injury matter relative to the benefits you received through your Workers' Compensation claim.

"Thank you" feels inadequate for all that you do, but we say it from our hearts. Given the extreme importance of your role in helping patients and their loved ones through trying, difficult, and stressful times, we believe your work environment should be as safe as possible. The healthcare system in this country would not function effectively without you, plain and simple. You are valuable and needed, and we appreciate you more than we can express. We hope that you never need our legal services, but should you ever find yourself injured on the job or in an accident caused by a negligent party that prevents you from working, we are here for you. The legal team of AutoAccident.com has represented California nurses for many years and has been successful in helping to alleviate their sometimes staggering financial and physical challenges.

Whether you choose our firm or another high-quality practice experienced in representing nurses in this state, remember that legal cases can sometimes go on for months or even years, so it is important to find a firm that offers compassion, understanding, and personal attention. Office staff should greet you warmly and make sure you are comfortable. Phone calls should be returned promptly. Your legal team should check in with you regularly and find out how you are doing, and direct you to proven, reliable sources to aid in your recovery. You should always feel informed, secure, and truly cared for. After all, that is the kind of devotion and care that nurses provide to people every day. It is only right that you are treated with the same level of dedication and respect.

Should you ever need us, please give us a call at 916-921-6400 or 800-404-5400, or contact us via our website, AutoAccident.com. We feel honored to help nurses like you get back to the lives they love and deserve.

With deepest respect,

The AutoAccident.com Legal Team