Below is one of my many Florida foot/ankle injury settlements.
Settlement is before deduction for attorney’s fees and expenses. Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.
Case type: Personal Injury, Man Hit by Business Carpet Cleaning Device
Settlement Date: 6/11/2014
Claimant’s Atty: Justin Ziegler
Insurer for Stanley Steemer/Third Party Administrator (TPA)/Claims Adjuster/Defense Attorney
Self-insured/Gallagher Basset/Sharon Gee/Unknown defense attorney edited the settlement release
Claimant was 63-year-old male, employed as a professor at the time of accident. Prior to date of accident, he was a tenured professor.
TPA for the carpet cleaning company was Gallagher Basset.
On January 19, 2011, a Stanley Steemer employee was cleaning the claimant’s carpet in his Miami home. The claimant alleged that the employee lost control of the cleaning device (wand) and it hit the claimant’s foot.
A claim was opened with Stanley Steemer. My client told me that he had asked the claims adjuster to pay his co-pays for his medical visits but she refused. He then hired us and he was uncertain of the claims process.
Claimant’s Injuries (Damages):
The injured man’s first medical visit (for injuries suffered in this incident) was 21 days after the incident. He treated with a foot doctor (podiatrist). An MRI revealed a partial tear of his peroneus brevis tendon (in the ankle) and he received several physical therapy visits.
The most aggressive treatment that he had was having custom orthoses (including a UCBL orthosis) made. Below is an example of a UCBL orthosis.
The orthotics helped him. He continues to have intermittent shooting pain on the outside of his right ankle. His pain is worse after standing for long periods of time. He teaches for approximately 8 hours continuously 3 times a week.
It is difficult for him to consider a surgery (open repair) of this ligament tear due to the demands of his job.
The podiatrist said that he had a partial peroneus brevis tendon rupture (foot tendon rupture).
On July 18, 2013, his podiatrist said that he had obtained MMI as his symptoms have been stabilized with the use of bilateral orthoses and due to the fact that he is unable to consider surgery due to the demands of his job. This was a little over 2 years after the incident.
The podiatrist also said that surgery may not improve the problem.
The podiatrist said that he had a 5% lower extremity impairment, which equals a 2% whole person impairment.
We Fought to Reduce the Amount that He had to Pay Back the Health Plan
He had “health insurance” and little to no out of pocket medical bills. His health plan claimed a right to be repaid for the medical expenses that they had paid. The 2 health insurers together paid about $2,800 in medical expenses.
We negotiated this amount down to about $500 or so after reviewing the insurance policies and presenting our arguments as to why they should reduce or waive their claimed liens. One of the recovery companies (for the employer plan that paid medical expenses) referred this matter to their attorney after we told them that we would not accept a 1/3 reduction in their claimed lien.
I briefly dealt with their attorney and she agreed with our position to a certain extent.
It is important to understand a health plan contract so that you know whether they truly have a right of recovery and, if so, the strength of their right.
Past health insurance liens were about $2,800, thus it can be assumed that the claims adjuster was paying $22,200 for pain and suffering and/or future medical combined. Unlike most Florida car accidents, in this case my client did not have to prove that he had a permanent injury in order to be entitled to money for pain and suffering.
This is because in a non-auto accident case you do not need to have a permanent injury in order to be awarded money for pain and suffering.
Future Medical expenses:
The podiatrist did not state that he would need future medical treatment.
We argued that Stanley Steemer was liable because its employee negligently allowed the wand to strike the claimant’s foot. The insurance adjuster made 3 arguments:
1. That the cleaning device/wand was not heavy enough to cause our client’s foot injury.
2. The customer had gaps in his medical treatment and therefore may not have been badly injured or the treatment was unrelated to the incident.
3. The customer didn’t follow through with the recommended physical therapy for his foot, thus he failed to mitigate his damages.
Shortly after I initially spoke with the adjuster, she basically stated that they were admitting liability. But just because they admit liability does not mean that you have a case, or a good case.
While the adjuster did argue that our client had gaps in his treatment, she did not really focus on the fact that he did not treat with a doctor for 21 days or so after the incident. This would be a concern to some other adjusters.
The adjuster may have factored this into her evaluation and simply not have mentioned it to me. Our client hired us because Stanley Steemer would not pay his co-pays.
This is standard in an injury case. Do not expect the insurer or self-insured tortfeasor to offer to pay your deductible or co-pays until you are finished treating.
If the tortfeasor is willing to settle, they generally issue one check and that concludes the case forever.
The case settled several months after his last medical visit where he was at Maximum Medical Improvement (MMI).
I recently heard a former employee of an attorney say that the lawyer would not take a case if the injured person waited more than 7 days to treat. As you can see from this $25,000 settlement, it is difficult to make such a generalization.
Our client waited 21 days or so to get medical treatment and this case still settled for $25,000.
The adjuster did not offer more than $15,000 for some time and I drafted a lawsuit and sent it to her. She told me several times that this was her “top offer.”
Only when I decreased my demand to $30,000 did she increase her offer to $20,000 and then shortly thereafter, we settled the case for $25,000. Prior to my decreased demand of $30,000, our demand was $50,000.
The fact that the adjuster increased her offer from $15,000 to $20,000 only when I decreased my demand shows that sometimes if the demand and offer are too far apart the adjuster will not increase their offer, and they will tell you it is their top offer.
Once you drop the amount of your demand so that it is within a reasonable range of their offer, they may increase their offer.
So how did I know that $25,000 was a fair settlement?
Based on handled many ankle injury cases as well as keeping up with recent jury verdicts, I know that the starting point of the pain and suffering component of an ankle tear for settlement purposes is between $25,000 and $75,000.
We then add medical expenses of $2,800 which is the amount that the health plans paid. This brings us to a fair full value of between $28,000 and $78,000 for settlement purposes.
We then need to discount the full value of the claim by a 25% chance of a defense verdict based on the fact that a jury may conclude that the customer’s injuries were not caused by the accident. I know that the adjuster will evaluate this claim as a 25% of a defense verdict because I have handled many injury claims.
So we discount the full value ($28,000 to $78,000) of the case by 25% which would bring us to a fair settlement value of between $21,000 and $58,000. Now, we settled on the lower end of the fair settlement range for this claim, but it was within fair value which is the goal.
If we would have sued, which I was willing to do, we may have squeezed out some more money but it may have delayed the settlement and my attorney’s fee would have increased from 33 1/3% to 40%. Costs would have also increased.
Also, when you sue and take a case to trial, you risk the chance of getting nothing.
It took some back and forth to agree upon the language in the settlement release which is important to protect the client’s rights. I understand the importance of properly drafting a settlement release.
Just a few of the more than 11 reasons to hire an accident attorney are because I know how to:
- calculate the fair settlement value
- edit a release
- fight to negotiate a settlement with the tortfeasor as well as health plan
- request all of the medical bills and records and other documentation.
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