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WELCOME TO THE INJURY COMPENSATION SYSTEM

By: Guy 0. Kornblum, Certified Civil Trial Advocate, National Board of Trial Advocacy and Member, Million Dollar Advocates Forum

Nothing is more devastating to an individual than a serious injury. The totally unexpected circumstance of serious injury creates an emotional environment among family and friends that puts enormous pressures on family units and friends of the injured victim. The great uncertainty of whether someone will recover, and even if so, whether that recovery will result in serious physical and emotional impairments produces levels of anxiety which were likely never experienced by the victim and those close to him or her.

Once injured, the quest to find ways for financial support to pay the bills for healing and recovery, to replace lost income, and to pay for the extraordinary expenses for needed services and products begins. The system for supporting this recovery and finding resources for financial support is definitely complex. It involves public federal and state benefits, private insurance, and employer sponsored medical and disability programs. In many cases, the victim must enter the civil litigation system in search of compensation for injury at the hands of a Atortfeasor, aka one who has legally wronged another and caused the victim damages i. e. financial harm in the form of medical expenses, lost wages and other financial and emotional injury that would not otherwise have occurred.

Medical insurance, whether from an employee group or private, is the first source. Workers Compensation (which applies if the injury arises out of and in the course and scope of employment), and if necessary, public benefits, are also immediate sources for paying for medical care, rehabilitation, and temporary financial support through benefits designed to replace lost income. The primary benefit of these sources is that they do not depend on fault. Nonetheless there are Conditions to obtaining these benefits which vary. For insurance, the accident must occur during the period of coverage. For government benefits, there usually must be a showing of an inability to recover through employer related or other private sources. For workers compensation the injury must be work related.

Medical Insurance: In order to support medical care, the victim will be looking for medical insurance protection. If injury results from an auto accident, this can include medical payments coverage provided by the auto insurance policy for the vehicle in which the victim was riding, although this is usually a fairly modest amount, such as $5000.

If employed, the employer usually provides some type of group medical insurance. Those who work take it for granted. But there are pitfalls such as enrollment and eligibility requirements and exclusions that apply. Plus there are ways for insurance companies to terminate or limit coverage if there is a long term injury. There can also be problems with "dependent' coverage, particularly for children who reach Age 18 and who must continue financial dependence, be disabled or be a full time student to be eligible under a parent's group policy through work. Medical insurance has deductibles, coinsurance provisions and other limitations such as the a reasonable and customary clause which gives the insurance company the opportunity to limit what is paid. There are also "caps" on total payments over one's lifetime which make the long term coverage inadequate to meet the needs of the catastrophically injured. What you can bet on is that the victim will not be made 100% whole, and will incur additional charges which could be significant. In serious injury, it is important to have someone, such as a lawyer, insurance consultant or CPA, watch over the medical claims process and make sure that the insurance company does not improperly limit the claim or deny it.

Income replacement and disability insurance: Other than ones own savings, sources of financial support while recovering are limited. Employer related disability programs usually have waiting periods before benefits begin B sometimes as much as 180 days from the date of injury. The group benefits programs have limits on the amount of benefits paid, normally two-thirds of the average monthly earnings for the last 12 months. Plus there are deductions from the total available benefit if there are sums paid from other sources, such as workers compensation. Private disability policies have shorter waiting periods and benefits are paid in full without deductions from other disability benefits sources.

If the injury results in permanent injury and the likelihood that the victim will not return to the work force, then an application should be made to the Social Security Administration for disability and medical benefits. Medical benefits can be obtained through Medi-Cal, which administers state and federal funds to the disabled. Again, these benefits will integrate with other benefits for which the victim is eligible.

There are other programs available, such as those who are victims of a crime and who may claim benefits from the State Restitution Fund under a program administered by the State Board of Control.

The civil justice system is a resource, but to recover compensation, Afault must be established and there must be a causal relationship between fault and the injuries suffered. The process of recovery in the civil justice system requires lawyer representation, which means the lawyer is paid a contingency fee out of any monies recovered by way of settlement or judgment after a trial. It is much longer process, and requires the lawyer, in most cases, to afront the costs which are paid back when the case resolves. The goal of the system, once fault is established, is to compensate the victim for the injuries caused by the wrongdoer. This includes past and future medical expenses, lost earnings, impairment to future earning ability, and pain and suffering which includes both physical and emotional pain as well as any A loss of enjoyment of life (called Ahedonic damages).

One final point, if there is a recovery in a civil lawsuit, medical insurers, Workers Compensation and sources of government benefits may have a right to assert a Alien against the proceeds and recover back those sums which they have paid for the victim=s benefit or directly to the victim.

The injury compensation system is not Auser friendly, but a trained, experienced and qualified lawyer can provide the leadership, guidance and advocacy to get you successfully through the process. More on that in future columns.

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