Frequently Asked Questions
There’s no substitute for picking up the phone, scheduling a free consultation, and speaking with a lawyer directly about your specific circumstances. But if you’re still not sure if you have a case—or you’re just looking for some basic info about your options—feel free to review the FAQs below.
I was involved in an accident and the other driver was insured by Allstate. I have received a letter from Allstate telling me that I don’t need a lawyer. Is this true?
Since 1995, Allstate insurance company has been sending a letter to people injured by its policy holders.
The letter, entitled “Do I Need an Attorney?”, makes the following claims:
- Claims are settled faster when a lawyer is not involved.
- Lawyers charge a percentage of the recovery plus expenses, but if you settle with Allstate you keep the entire amount.
- Victims can hire a lawyer at a later date if they are not satisfied with Allstate’s offer to settle your case.
- Victims can negotiate a settlement with Allstate first, then hire an attorney and insist his fee be based only on the amount recovered above the Allstate offer.
Make no mistake about it, Allstate is not looking out for your interests. The insurance industry’s own statistics demonstrate that it costs the insurance company an average of $9,000 more per claim when an attorney is involved for the injured person. The truth is that you should never settle a personal injury claim without consulting with an attorney. We never charge a fee for meeting with injured people and answering all of their questions in order that they can make a fully informed decision as to whether to hire an attorney who will be looking out for their rights.
No insurance company is going to spend the time to discuss with you, in an unbiased fashion, the following topics:
- The reasonable value of your case when compared to similar cases.
- Why delaying the settlement of your case is sometimes in your best interests.
- The availability of other types of insurance payments to pay your bills, including medical payments, health insurance, worker’s compensation, and the relationship between each.
Allstate’s letter does not tell you that in some instances, you must pay a portion of what you get from Allstate back to another insurance company. Nor would you be advised by Allstate’s letter that some of these additional sources of funds require you to give prompt notice of the claim to the entity involved. Whether you should seek additional medical care and what medical specialist might have insight into your particular problem. Time and time again we have heard from clients that insurance adjusters tried to make them believe that it was the insurance company’s decision as to whether you should see a medical specialist. How your settlement with the insurance company may affect other claims arising out of the accident, including medical malpractice claims and claims against other defendants. Release of your automobile accident claim may be argued to be a release of a doctor’s negligence, even thought the doctor does not operate on until much later. Whether you should, as Allstate will request, give authorization to the insurance company to obtain all of your medical records and wage information. Do you even know what is in those records? Irrelevant entries in medical charts may be used against you if the case does not settle.
You can order a FREE copy of our consumer guide, The Five Deadly Sins That Can Wreck Your Injury Claim, to learn more about personal injury claims.
During an initial consultation, a lawyer said he could refer me to one of his chosen doctors for a free consult. Is this a good idea?
Be wary of any lawyer who has a stable of doctors to refer you to. This is a scam and it could ruin the credibility of your case.
Local judges call this doctor-lawyer relationship the “kiss of death” to a claim. (One long-time Virginia attorney was disbarred because he referred clients to a chiropractor and then told his clients to lie about the referral when asked in deposition.)
The problem with an attorney to health care provider referral is that Northern Virginia jurors are highly suspicious of lawyers and health care providers who have one of these referral relationships. While the client may not know how many of that law firm’s clients have been referred in the last 12 months to a particular doctor, you can bet that the insurance company knows it or will find out about it. How credible do you think that doctor’s testimony will be when the jury finds out that he treated 127 patients from the same law firm last year?
Frankly, its unethical to do this unless the lawyer also volunteer to you the number of referrals he has made to that doctor over the past year. He should also make you aware of any side deals he has with the doctor.
Are there exceptions to this rule? Yes, there are.
You may have a need for a doctor with a special expertise. It is perfectly legitimate for the attorney to make that suggestion/recommendation. If every client, though, is getting referred to the same chiropractor or the same orthopedist, then that is a huge problem. (So beware of the attorney who has a stack of doctor/chiropractor cards in his office. You need to ask the right questions and fully understand the business relationship, if any, between that attorney and the doctor.)
Do I need a lawyer or can I settle my personal injury case on my own?
How’d you like to receive an accident case settlement check and keep all of that money to yourself?
There are a few basic guidelines to tell if you can settle your case on your own.
- Was there only minor property damage and no injury?
- Are your injuries no more than minor bruises, sprains, and strains?
- Did you only have one or two visits to a doctor or the E.R.?
- If you need physical therapy or treatment, is it for less than four months?
- Have you been given the “all clear” from a doctor and expect no further need for treatment?
- Did you miss less than five days of work?
If you answered yes to all or most of these questions, your accident case probably won’t settle for more than a few thousand dollars, because your expenses just won’t be that high.
Don’t be afraid that you won’t get enough money in your accident case settlement to pay all your bills. As long as you have the proof of your expenses and you follow through with what the insurance company requests for evidence, you shouldn’t have too much of an issue getting reimbursed for those bills.
The bottom line for settling your accident case without the need for a lawyer is money. If your insurance coverage is enough to provide for your bills and you’re not looking at long-term health issues or disability, your settlement will most likely just cover your basic bills.
Why hire a lawyer to settle your accident case when you don’t need one?
If you’ve only suffered minor damages, your accident case probably won’t be worth more than a few thousand dollars. Why should you have to give part of your settlement to a lawyer who probably didn’t do any more work than you could have done on your own?
If you aren’t sure whether or not you need a lawyer, or even if you’re pretty sure you can handle it on your own, I encourage you to give our office a call at 703-584-7277 and we’ll set up a free initial case review. We only accept cases if we are confident we can add value and will never pressure you to hire us if we don’t think you need to. We also have plenty of free resources we can give you in case you do decide to represent yourself.
Is it too late for an attorney to help with my accident case?
You may hire a personal injury lawyer at any time. That’s your right. But there are points in the accident case settlement process where a lawyer may not have the legal ability to help you.
There are two points in the accident case process where everyone, lawyers included, are pretty powerless to do anything. The first is when the statute of limitations runs out. For Virginia, that’s two years. If you’ve waited that long, even the best Fairfax personal injury lawyer may not be able to help you obtain a settlement.
The next event that may reduce a lawyer’s ability to assist you is when you’ve already signed the settlement release. In a typical settlement release, the fine print prohibits you from taking any further legal action against the insurance company or the defendant.
If you sign the release and incur additional medical expenses that were not accounted for in the settlement, you typically have no legal recourse to file an additional claim.
However, I’m going to go ahead and say it doesn’t hurt to ask an attorney for help if you’re facing these or any other situations throughout your accident case. Sometimes, when you’re settling your case on your own it’s best to get a definite ‘yes’ or ‘no’ when you have questions about your case, and lawyers like me can provide that advice.
No decent injury attorney will turn a potential client away without offering an opinion or guidance on an accident case. Whether you’ve just been in the accident and have yet to take action or you’re nearing settlement, it never hurts to seek the opinion of someone who’s dealt with cases such as yours.
If one child accidentally hurts another child while under the school’s supervision resulting in a couple of stitches and there’s a medical bill, who’s responsible?
The answer is “probably no one.” Depending on the age of the child who caused the injury he or she may or may not be liable for his actions. The older the child, the more likely he could be found liable. Generally, parents are not directly liable for the actions of their children.
The school and its teachers are probably not liable as well. Generally, school teachers are granted broad immunity from lawsuits even for obviously careless acts. Also, in terms of children hitting children, unless the teacher knew or should have known that one child was going to hit the other the teacher likely as not even negligent in the first place.
If you feel your child has been harmed at school, you should consult with an experienced personal injury attorney in your area. Each case is different and only an experienced personal injury attorney can give you an opinion as to whether or not you have a valid claim.
What does notice of dismissal without prejudice mean in a Virginia case?
A notice of dismissal without prejudice means that you can refile your case if you act within certain time deadlines. Generally, if you have not already filed a similar “notice of dismissal” in your case before, (also known as a “non-suit”), you will have 6 months within which to refile your case.
This can be tricky, however, and you should promptly consult with an experienced attorney in your area if you are in this situation.
The insurance adjuster seemed helpful right after my car accident, but I still haven’t gotten any settlement offer or payment. What is going on?
Insurance companies live on a different timeframe than the insured. Sometimes, they will rush you to settle. Or, they are making you wait for your settlement. Both of these games are tactics to either settle your claim before you hire an attorney, or to make you wait so you will accept their first offer.
The insurer is fully aware that you are in a financial bind and that you have medical bills piling up, while at the same time you are unable to work. They know that you need the money and the longer they delay your claim, the better the odds that you will accept a low settlement.
Of course, delays are not always “tactics.” Insurance companies are large corporations with many different levels of management. You may just be waiting for the insurance company to make their decision on a complicated claim, and it is taking some time.
Keep in mind, you have two years from the date of your accident to file a personal injury claim. Typically, we recommend completing your medical treatment before settling with the insurance company. During that time, you will be responsible for paying your medical bills, so be sure to submit any claims to your health insurance company. You can also make arrangements with the hospital to make monthly payments on your medical bills until you have your settlement from the insurance company.
If your health insurance is paying your medical bills, check your health insurance contract for a subrogation clause. Some health insurance policies require you to pay back the health insurance company for your medical bills once you reach a settlement for your car accident.
Finally, car accident claims can take a long time. It may be months or years before your claim is settled by the insurance company. Some cases will go to trial, so you should be prepared to wait on your settlement
If your claim is being ignored or delayed, consult with a personal injury attorney. Most attorney consultations are free, and the attorney will let you know if your case is simple and straightforward, or complicated enough to require an attorney.
Should I use my health insurance to pay my medical bills after a Virginia car accident?
Yes. In Virginia, you are always going to be better off having your health insurance company pay the bills. In many cases, you may owe money back at the end of your case to your health insurance company due to subrogation. But even with subrogation, you are going to come out “ahead” if you’ve used your health insurance benefits. In many cases, we are able to negotiate a reduction in the subrogation claim at the end of a case.
Long-Term Disability Insurance Claims
Do statutes of limitation apply to long-term disability?
There are several time issues to be aware of in-group long-term disability claims governed by ERISA.
- You must give timely notice of your claim and then follow up with timely proof of your claim.
- If your claim is denied you have 180 days to “appeal” that denial. That “appeal” goes right back to the insurance company that decided you weren’t entitled to benefits in the first place!
- If you do have to file suit, you CAN file your case in STATE court, but it will be removed (transferred) to Federal Court in all likelihood. There is NO ERISA statute of limitations. Courts follow the whatever state statute of limitations applies to written contracts.
However, be warned that buried in your employer’s insurance plan may be a hidden statute of limitations that is much shorter (as short as 180 days I have seen!). You must read your plan from front to back, and use a magnifying glass if necessary.
Why doesn’t my treating physician’s opinion matter to my disability case?
We’re taught from the very beginning to trust our doctors. The trust component of the physician-patient relationship is one of the most important aspects of choosing who you take medical advice from. After all, if you don’t trust your doctor, how can you rely on his medical opinion?
So then why, when your doctor declares that you are “disabled” and can no longer work, is the insurance company allowed to ignore his opinion?
Because in 2003, the Supreme Court of the United States issued a ruling that long-term disability insurance companies do not have to give any deference to the opinions of the treating physician when evaluating a disability claim. When Kenneth Nord, a material planner with Black & Decker went to see his doctor about hip and back pain, he was told he might have degenerative disc disease. After confirming the disease with an MRI, Kenneth was advised by his doctor to stop working at his “sedentary” job.
Following the advice of his doctor, Nord stopped working and applied for disability benefits. He was quickly denied and then filed his appeal. His doctors and Black & Decker’s HR Department filed all the documents to support his claim. MetLife, who was the insurance company administering the claim, sent Nord to get a second opinion – from one of their doctors. While MetLife’s doctors agreed that Nord had a degenerative disc disease, they also thought that if he took pain medication, he would be capable of sedentary work as long as he did “some walking interruption in between” work.
Even though Nord had the support of his physicians and Black & Decker’s HR department, his appeal was denied. So he went to the courts.
The Court of Appeals reviewed Nord’s case and decided that the insurance company had to justify its rejection of the treating physicians’ opinion. Because MetLife had not attempted to reject his opinion, the Court of Appeals declared that Nord should win.
But then the Supreme Court of the United States heard the case. After a full briefing and argument, the Court held that a disability plan did not have to give any special weight to the opinion of the treating physician. The Court reached this decision by reasoning that nothing in the ERISA law or the Department of Labor’s regulations mandated that the insurance company give any special deference to the treating physician.
Even after the Supreme Court admitted that “The validity of a claim to benefits under an ERISA plan is likely to turn on an interpretation of the terms of the plan at issue,” the Court held in favor of MetLife. In short, whether you are “disabled” hinges more on what the terms of your plan are than on what the problems with your body are.
Can an insurance company change its reason for denying a long-term disability claim?
When disability insurance benefits are denied, the insurance company has to tell you WHY. Then you can appeal their decision, giving your reasons and supporting evidence for why they are wrong. When they evaluate your appeal, they are supposed to – by law – only consider the original reason they had for denying your claim and your arguments against that. If they decide you are right, you win – that’s the law.
Unfortunately, whether insurance company appeals managers don’t know the law or don’t care, sometimes they will do something incredibly frustrating – they will say “okay, you were right about ABC. But now your claim is denied because of XYZ.” This is called “changing the reason for the denial.” It is against the law, and it happens all the time. When it does happen, your only recourse is to file a lawsuit. This is why we say you MUST have an experienced attorney who understands disability insurance law (called ERISA) on your side from Day 1.
We have a client who was injured in an auto accident that left him with traumatic brain injury and a host of problems associated with that. He had a disability insurance policy with his employer, and the policy paid benefits for many years. One day, out of the blue, he got a letter from the insurance company (let’s call them Aetna) saying that his benefits were denied because his medical records showed he was disabled due to Chronic Pain Syndrome, and his policy limits coverage for Chronic Pain Syndrome to two years – which had long since passed. We appealed, submitting letters from his doctors and medical records showing that Chronic Pain Syndrome was just ONE of the effects that lingered after the car accident – and his true disabling condition was Traumatic Brain Injury (which had no coverage limitations). The insurance company denied the appeal, but not because they disagreed about the Traumatic Brain Injury diagnosis. They denied the appeal because they said they reviewed the records again and found that actually, he was not disabled at all!
This is an insurance company that simply got tired of paying the claim. Of course, that’s not allowed, but it happens all the time. We have filed a lawsuit, and we are confident we will win (judges do NOT like to see this kind of monkey business from insurance companies).
For a deeper dive, here’s the case law supporting the “no new reason for the denial” rule:
When an insurer changes the basis for its denial during the appeal process – whether during the administrative review or judicial review – that opportunity is lost. See Thompson v. Life Ins. Co. of N. America, 30 Fed. Appx. 160, 163 64, 2002 U.S. App. LEXIS 3390 (4th Cir. 2002) (unpublished) (remanding to the district court where insurance company changed the reason for its denial of benefits during judicial appeal because allowing insurer “to raise a new basis for denial would deprive (the claimant] of the procedural fairness guaranteed to claimants under ERISA”). Also Glista v. Unum Life Ins. Co. of America, 378 F.3d 113, 130 (1st Cir. 2004) (remanding to the district court with instructions that the insurer be held to the reason articulated during its internal claims review process since the insurer “violated ERISA and its regulations by relying on a reason in court that had not been articulated to the claimant during its internal review”).
Does my last day of work affect my long-term disability claim?
The day that you stop working is an incredibly important factor in your long-term disability claim. To most people, this is a logical decision. You get your affairs in order, wrap up whatever big projects you have at work, give your notice, and stop working. Most people who end up filing long-term disability claims will also have the well-intentioned advice of their doctors, supervisors, co-workers, family, and friends.
But there is one more factor you need to remember when selecting your last day worked (or LDW). You’ll ultimately have to justify this decision to your insurance company. When you file your claim, they will ask:
- Why did you stop working that day when you worked eight hours the day before and forty hours the week before?
- What does the medical evidence show? Is there any objective medical evidence that proves a change in condition between the LDW and the day, week, month, or a year before?
And even in cases where you’ve had a terrible, debilitating disease that you’ve been working through for years, the insurance company is going to say, “Fine, you’ve had that terrible, debilitating disease for years and everyone we know would have stopped working years ago, but you didn’t… so why are you stopping now?”
It’s up to you to make sure that the answers to all these questions and more can be found in your medical records BEFORE the date you file for disability. It doesn’t matter that you’re able to answer all of these questions. Why would you want to risk trying to fill in the blanks later, after your claim has been denied, when you can take care of those issues today.
I was awarded Social Security Disability. Do I have to tell the long-term disability company?
This is a question I hear, or a fact pattern I see, all the time. An award of social security disability (or SSD) benefits ALWAYS has an impact on your LTD claim. Allow me to explain the two ways in which it can affect your claim:
At a very basic level, winning SSD benefits is a sort of verification of your status as disabled. It is another independent organization concluding that you are, in fact, disabled. This doesn’t mean your LTD claim is safe, or will never be rejected/denied. Insurers love to overlook SSD awards. But it IS proof that another entity felt the evidence indicated disability. Obviously, SSD and your insurer use different standards in judging disability. However, by operation of law in many cases, your insurer cannot arbitrarily disregard the fact that you have been awarded SSD benefits. This is a good thing.
On a financial level, it has serious implications for your LTD claim. The VAST MAJORITY of disability insurance policies have “offsetting income” provisions (or the like). These provisions state that income from certain other sources offsets what your insurer pays you. SSD income is ALWAYS specified. What happens is best explained by example. Say AETNA/Hartford/UNUM/etc are paying you $2,000.00/month BEFORE you get SSD. All of a sudden, you get a letter from SSD saying you have been awarded benefits in the amount of $1,000.00/month going back 6 months. They pay you $6,000.00 (for the past 6 months), and they say you will get a check monthly for $1,000.00.
By the contract with your insurer, your insurer will now pay you $1,000.00/month ($2,000 – $1,000 = $1,000). This is good for many reasons. Most importantly, it diversifies your income and protects you in the event that one of your benefits is cut off. However, what about the fact that you were awarded “back-benefits” for the past 6 months?
You will owe that money back to your insurer. The award of back benefits means your insurer should have been paying you $1,000.00 less each month for the past 6 months. They will want that money back (when they realize it).
Which brings me to the advice: When you receive an award of SSD benefits, DON’T SPEND THAT CHECK!!! It is highly likely you will owe the majority of it, if not the entirety of it, back to your LTD insurer. Spend it, and the trouble starts.
Of course, in such a circumstance, speak with an attorney. Like I said, I see this issue all the time. I know how to negotiate a “repayment of overpayment” agreement that serves to help keep you on claim.
What happens if my employer offers a severance package when I’m out on disability?
About once a month we get contacted by an employee who is out of disability but is being offered a severance package to leave the company. The question arises: what about my disability claim with the company’s disability insurance company?
The answer is that your disability claim may well end with the signing of the agreement if you are not careful. It does not have to be that way.
In almost every situation your disability claim is being managed by a big insurance company. (Aetna, Unum, MetLife.) What we see happening is that your employer’s corporate lawyers draft boilerplate severance agreements which purport to extinguish “all claims” you may have against the company.
Whether or not your employer INTENDS to extinguish your disability claim, you can bet that the disability insurance company’s lawyers (different from your company’s lawyers and, frankly, with no allegiance to your employer at all) will argue that your disability claim is over.
Here’s the consumer tip:
Just call us. We’d be happy to review your severance agreement and give you the right advice – for a flat fee.
Do I have to pay back my disability insurance company if I get Social Security Disability, even if my benefits have been terminated?
You have run into two major problems with these group long term disability insurance policies. First, you discovered that yes, most require a repayment if you are later awarded social security disability benefits. Yes, you will likely have to repay your disability company, even though they have now terminated your benefits!
The second major discovery you made is that these companies that the disability insurance company send you to for a “free” representation in your social security disability claim are working for two “masters,” you and the company that hired them. Unfortunately, we’ve seen a lot of dubious practices carried about by these “we’ll get your social security benefits for free” companies the disability companies send people to.
So, unfortunately, you have seen the worst of these disability companies. Benefit denial followed by a request that “you pay us back out of your social security benefits.”
Each contract is different, and you should consult with an experienced disability company in your area to see what you can do about your benefits.
What is the difference between survival action and wrongful death in Virginia?
Most simply, in Virginia, if death is caused by negligence or malpractice, a wrongful death lawsuit may be filed. If death follows the negligence or malpractice, but is not caused by it, then a survival action may be filed.
Example of Survival Action from Our Own Case Files
An elderly gentleman was very seriously injured in a car accident when he was hit by a young, barely licensed, female driver. He lost a part of his hand in the accident. About 90 days after the accident, he died of a pulmonary embolism (blood clot). His doctors said that his death was not directly caused by accident (he had some preexisting conditions.)
This means that a survival action was filed. A survival action is filed by his estate, and the money goes into his estate, to be divided by his will.
His estate was entitled to recover for his injuries, pain and suffering and medical bills. His survivors were not allowed to recover for their own mental anguish. Again, we look to the will to see where the money goes.
A court does not get involved in the “approval” of a survival action settlement.
What Would It Look Like as a Wrongful Death Claim?
Now, let’s assume that his death was determined to have been directly caused by accident.
A wrongful death action is filed by a representative of his estate but the damages are different and where the money goes is different.
There is no recovery for his own pain and suffering. (That ended with his death.) His survivors can recover for their own grief suffered because of his death. This means that if a near relative had no real relationship with him they might get nothing.
The money is divided up by the jury if the case goes to trial. If it is settled, generally the family agrees on the division. In a wrongful death case, the court must approve the settlement and the distribution of the money.
Are You Dealing with a Potential Survival Action or Wrongful Death Claim?
Contact our team of experts at BenGlassLaw by calling our main office in Fairfax at (703) 584-7277.
BenGlassLaw has additional offices to meet with clients throughout Virginia, including in Fredericksburg, Arlington, Alexandria, Dumfries, Quantico/Stafford, Richmond, and more.