The Most Important Factor in Evaluating Your Workers Compensation or Personal Injury Claim by Columbus, Georgia Lawyer Mark Jones
What’s My Personal Injury or Workers Compensation Case Worth?
Lawyer Mark Jones is often asked by his workers compensation and/or personal injury clients in Columbus, Georgia and Phenix City, Alabama the following question: What’s my case worth? This is a difficult question that depends on the specific facts of each case.
However, in the many personal injury and workers compensation cases I have had to evaluate in my career, one central factor stands out as the most decisive in determining what a personal injury or workers compensation case is worth: the credibility of the plaintiff or claimant.
Credibility of the Plaintiff or Claimant: The Central Factor in Evaluating a Case:
What is credibility? Credibility is just another word for a likelihood that a plaintiff or workers compensation claimant is telling the truth. No one likes to be lied to. In every case, someone is lying – whether intentionally or not.
Judges, jurors, adjusters, and opposing counsel all want to know that the claimant is telling the truth before they award compensation to someone for an injury. Therefore, credibility is a very central component to a case.
Without credibility, there is very little hope of significant recovery. Credibility includes how the plaintiff or claimant presents and their criminal background.
Credibility is so important, Georgia law actually has special rules of evidence designed just to address a witness or party’s credibility. See, e.g., OCGA 24-6-613, which is a rule created specifically to admit evidence that someone said something previously that is inconsistent with the testimony they are giving in Court![gview file=”https://secureservercdn.net/188.8.131.52/bgg.6da.myftpupload.com/wp-content/uploads/2014/01/Lawyer-Mark-Jones-Impeachment-OCGA-24-6-613.pdf”]
Another example of the importance of credibility in the workers compensation context is the Rycroft defense. This defense stems from the Georgia Supreme Court decision in Georgia Electric Co. vs. Rycroft, 259 Ga. 155 (378 S. E. 2d 111) (1989).
The Rycroft defense holds that an injured employee will be barred from receiving workers compensation benefits if, prior to being hired:
- 1) the employee knowingly and willfully made a false representation as to a physical condition;
- 2) the employer relied upon the employee’s false representation and that employer’s reliance was substantial factor in the employer’s hiring of the employee; and
- 3) there was a causal connection between the condition falsely represented and the current injury.
Thus, if you already have a bad back, the employer asks you whether you have a bad back prior to hiring, and you lie about having a bad back, if you hurt your back on the job, Rycroft bars receipt of workers compensation benefits.
An example of the application of the Rycroft defense in the workers compensation context is Hagler, J.’s well-reasoned decision in the case below. This case is an incredible read — almost like something off of Jerry Springer!
At one point in the opinion, there is discussion of the claimant body-slamming someone Hulk Hogan-stylee at a bar brawl! How bizarre is that?[gview file=”https://secureservercdn.net/184.108.40.206/bgg.6da.myftpupload.com/wp-content/uploads/2014/01/Rycroft-Defense-Award.pdf”] Read More
Subrogation stinks. Subrogation is a legal principle whereby an insurance company that has paid your medical bills can seek reimbursement from your personal injury settlement or judgment. This blog by Columbus, Georgia Lawyer Mark Jones discusses three points about subrogation on your personal injury settlement.
(1) Generally speaking, subrogation by anyone other than your employer’s health insurance company is prohibited in Georgia
Georgia follows the made whole doctrine. That just means that Georgia does not permit subrogation by insurance companies that have made health insurance payments from an injured person’s car wreck or slip and fall settlement unless that person is “made whole.” See OCGA 33-24-56.1; Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646, 647 (482 S.E.2d 325) (1997)(insured-claimant’s automobile insurance carrier that paid “medical payments” benefits to insured could not subrogate against insured’s settlement with liability carrier); Thurman v. State Farm Mut. Auto. Ins. Co., 278 Ga. 162, 164 (598 S.E.2d 448) (2004) (same).
Being made whole means that you have been fully compensated for all your medical bills, lost wages, and damages for pain and suffering. OCGA 33-24-56.1. Under Georgia case law, the only real way to be completely compensated is through a special verdict by a jury where the jury lists what it has awarded for medical bills, lost wages, and pain and suffering. Cf. Paschall Truck Lines, Inc. v. Kirkland, 287 Ga.App. 497 (2007) (settlement made it impossible to determine amounts apportioned to pain and suffering versus medical bills). Since 90% of cases resolve without a trial, generally speaking, this means that an injured claimant will not be made whole by a settlement. Note that Alabama does permit a health insurer to subrogate against a personal injury claimant’s settlement in a car wreck or slip and fall so long as the contract expressly renounces the made whole doctrine.
(2) Generally speaking, subrogation by your employer’s health insurance company will be permitted, assuming the paperwork is in order
If you are like 75% of Americans, you work for a major corporation and if you are lucky enough to have health insurance, you get your coverage through your employer. In this case, assuming the plan documents are in order (oftentimes they are not), your health insurance company may be able to seek reimbursement from your car accident or slip and fall settlement for medical payments it made. This is due to federal pre-emption of state law via the Employees Retirement Income Security Act. Generally speaking an ERISA plan that has been properly drafted will pre-empt state anti-subrogation statutes such as Georgia’ OCGA 33-24-56.1 Of course, the paperwork for the plan must be in order. Oftentimes it is not. You should contact a lawyer such as Mark Jones to obtain the plan documents and review it for compliance under the current case law.
(3) Subrogation may be offset by other coverage you have
Sometimes you may have a valid claim for subrogation made against your settlement. Oftentimes, these”subrogation” claims are being made by low level debt collectors. Ingenix comes to mind here. Quite often, they will reduce their subrogation claim if you hire an attorney well-versed in defending subrogation claims in a car wreck or slip and fall situation. It is important that you hire a lawyer who knows the law in this area. Many attorneys do not understand the law in this area of practice, which is to the detriment of their clients.
If you currently have a claim against your personal injury claim by an insurance company that paid you health benefits, or if you ever hear the word “reimbursement” or subrogation, pick up the phone and call lawyer Mark Jones immediately. He can assist you in reducing or eliminating the claim. Call Mark today at 706-225-2555.