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Personal Injury
How We Handle Personal Injury Cases in Vermont
The Attorney-Client Relationship
The Progress of a Vermont Personal Injury Claim
Preparing the Claim
Negotiations
Filing Suit
Arbitration/Mediation
Worker's Compensation
What Is Vermont Worker's Compensation?
Do I need a lawyer?
What benefits are provided by the Vermont Worker's Compensation Law?
Do I have a right to get my old job back?
What if I can't return to my old job?
How do I file a worker's compensation claim?
How will I know if my claim is accepted?
Summary
How We Handle Vermont Personal Injury Cases
Many of our clients have never had to hire a lawyer, and
are not familiar with the process. This is intended to
provide you with an overview of the process and an
introduction to the professionals at O'Neill Kellner & Green.
The
Attorney-Client Relationship
As attorneys, it is our duty to represent our clients'
interests to the best of our ability, within the bounds
of the law. Communications between an attorney and client
are confidential, and cannot be released without the
client's consent. This duty of confidentiality extends to
everyone in our office.
To prepare a case, we may need access to medical,
financial, and employment information that is personal.
From time to time, we must ask our clients to consent in
writing to the release of this information, which we use
to prove that medical treatment, income losses, or other
damages are related to the accident.
We know that each client's claim is very important, and
we take it seriously. To keep our clients aware of the
progress of their cases, we send them a copy of every
letter we send out concerning their claim. We know that
good communications between attorney and client are
critical. We take pride in returning calls quickly and
answering questions promptly.
The
Progress of a Vermont Personal Injury Claim
While it is impossible to predict exactly how each claim
will proceed, here is a general overview. At first, we
work on assembling proof to support the claim. This work
can involve many different aspects, but often involves
the following:
Preparing
the Claim
Liability Investigation: If the defense denies it is at fault, we
conduct an investigation. This can involve speaking with investigating
officers, interviewing witnesses, having experts review the facts,
and obtaining other information necessary to determine the strength
of the case. Much of our investigative work is done by Mary Lou Marsh, a legal assistant with many years
of experience in Vermont personal injury cases.
Medical Records Requests: In the first weeks and months after an
injury, most of our clients receive medical treatment. It is important
that clients pursue appropriate medical care and do their best to
follow their doctors' advice. During this time, we will periodically
request copies of all medical records and bills from the doctors.
It is critical that we have a full understanding of our clients'
medical treatment in order to present a complete set of bills and
records as part of the claim.
Past Medical Records: Generally we
request records of treatment dating after the accident.
Sometimes past medical treatment may be needed to address
issues of pre-existing conditions.
Lost Wage Documentation: It is important
to present reliable evidence of lost wages to the
insurance company. We work with our clients to determine
whatever endorsement or tax records we need to prove the
claim.
Medical Examinations: Usually, we will
use the treating doctor's records or testimony to prove
the case. In some circumstances, we may ask another
doctor to examine our client or offer an opinion on the
case. This is not a treating doctor, and the examination
is solely for legal purposes. Similarly, the insurance
company may request that our client be evaluated by a
doctor of their choice.
Negotiations
Usually, after we assemble all of documentation necessary
to support the claim, we try to negotiate a settlement
with the insurance carrier. Before contacting the
insurance company, we talk with our client about the
value of the claim. Our goal is to present to the
insurance company a complete understanding of how our
client's life was affected by the injury.
It is often challenging to determine the fair value of a personal
injury case. Often several people in our office will review a case
to develop a negotiating strategy. Either Jerry
O'Neill, John Kellner or Michael Green is primarily responsible for each
case in our office. We frequently will ask our claims analyst, John
Schraven, to handle some of the negotiations with the insurance
carriers. John worked for insurance companies as a Vermont licensed
insurance adjuster for many years before joining our firm. He knows
the insurance claims business from both sides.
The decision to accept a settlement offer is entirely the
client's. We will give advice about any offer, but the
ultimate decision is the client's. We cannot control the
insurance company---our goal is to get them to make their
best offer so that our client can decide whether to
accept it.
If there is a settlement, the client must sign a document
known as a release. By signing the release, the client
agrees to drop all claims against the at-fault party in
exchange for the settlement amount.
Filing Suit
If we cannot reach a fair settlement, we file suit. The
insurance carrier then hires a lawyer to defend the
at-fault party. Each side is required to provide the
other with detailed information about the claim and the
defenses. Shortly after filing suit, the defense will
probably send us a set of interrogatories, which are
written questions we must answer with our client under
oath. Later, the defense lawyer may take our client's
deposition. A deposition is an interview at which our
client is questioned under oath and a transcript is
prepared. We help our clients prepare for this and we
attend the deposition.
Sometimes a case is settled after suit has been filed. If
not, ultimately it will go to trial. It is hard to
predict when a case will be tried. Depending on the
court, it can take from one to three years. Generally
only about five percent of all cases go to trial.
Arbitration/Mediation
Because trials can be stressful, costly, and their
outcome uncertain, it is often worthwhile to try alternative
settlement options. If the parties to a dispute cannot reach a
settlement on their own, mediation may be appropriate. In
this case, a neutral person is hired to assist in the
resolution of the claim. If a case would benefit from
this, we will try to get the insurer to agree to this
procedure.
What
is Vermont Worker's Compensation?
In Vermont, worker's compensation is a "no-fault
insurance" which provides certain benefits to people
injured on the job regardless of how their injury occurs.
In exchange for these guaranteed benefits, the injured
worker cannot sue his employer in most cases. The Vermont
Department of Labor and Industry provides the worker's
compensation program. The Department of Labor and
Industry is located at the National Life Building, Drawer
20, Montpelier, Vermont 05620-3401, (802) 828-2286.
Do I
need a lawyer?
Most worker's compensation cases do not involve serious
disputes. If the claim is accepted, the insured is
responsible for providing the benefits required by the
worker's compensation law. The Department of Labor and
Industry is responsible for overseeing the claim and
insuring that the injured employee receives the benefits
to which the employee is entitled. Each claim is assigned
a specialist at the Department of Labor and Industry. If
you believe that you might have difficulties with your
claim, the first step towards resolving it should be to
contact the Department of Labor and Industry. If you
think that you might require an attorney, please feel
free to call us. In many cases, we have found that the
worker's compensation claims can be resolved without
requiring an attorney.
What
benefits are provided by the Vermont Worker's Compensation Law?
Worker's compensation in Vermont provides coverage for
all reasonably necessary medical services and supplies
related to the on-the-job injury. Additionally, worker's
compensation provides certain financial benefits. During
the period of your total disability, you will be provided
with a weekly wage replacement called temporary total
disability compensation. This benefit is calculated as 66
2/3 percent of your average gross weekly wage, for the 12
weeks preceding the accident. If you are released to
part-time work while you are recovering, then you may be
entitled to temporary partial disability compensation.
If your doctor determines that you have reached a medical
end result and have some degree of permanent impairment,
you may receive additional compensation for permanent
partial impairment. These benefits are calculated based
on the American Medical Association Guidelines.
Do I
have a right to get my old job back?
If a Vermont employer has at least ten employees and you
are able to return to work within two years of your
injury, you have the right to be reinstated to the next
available suitable job. Your employer, however, is free
to fill your position while you are disabled. You are
entitled to reinstatement only with a job position is
available for which you are qualified. In order to obtain
reinstatement, you must keep your employers informed of
your availability and interest in returning to work.
What
if I can't return to my old job?
If your doctor determines that you will not be able to
return to your previous job, under Vermont law you may be
entitled to vocational rehabilitation to help you find
alternative suitable employment.
The goal of this program is to assist your return to the
work force, improve your capabilities hopefully
appropriate to your educational and employment
background.
How do
I file a worker's compensation claim?
You should notify your employer as soon as possible after
your injury. The employer should immediately file a first
report of injury form with the Vermont Department of
Labor and Industry. You should expect to hear from your
employer's personnel office or insurance carrier. They
will have a right to obtain your medical records relating
to the accident and to select a doctor for you to see.
How
will I know if my claim is accepted?
The insurance company has 21 days to investigate your
claim and decide whether to accept it. If your claim is
denied, you have a right to challenge that decision
before the Department of Labor and Industry. The
specialist at the Department of Labor and Industry
worker's compensation division will serve as a mediator
to try to resolve conflicts in your case. If you do not
make progress in this process or are concerned that you do not
understand the system you should feel free to call our
office.
Summary
We hope this summary overview is informative and helpful.
If you are considering hiring an attorney to represent
you in a Vermont personal injury claim, please contact us.
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