Frequently Asked Questions - My Personal Injury Case
Author: R. Clayton Allen, Mechanicsville, VA Personal Injury Attorney
How long will it take to settle your personal injury case? At the risk of sounding like a “lawyer answer,” the truth is that it depends. But we can give you a rough idea of how to make an estimate based on a few important factors. Every personal injury case is different, but there is a certain progression of steps that have to be taken in handling and resolving a personal injury claim. The length of these steps can vary, but we have provided some general estimates as a guideline.
The first factor is the type of injuries sustained and the period of time necessary for those injuries to “mature.” For most people with soft tissue injuries (muscle, ligament and tendon strains, sprains, and bruises), these injuries will completely heal in about six months or less, depending on the severity. About 20% of people with these types of injuries, however, will continue to have symptoms even after a year, and about half of those will have symptoms that are significant enough to interfere with their activities on a regular basis. The period of time for these injuries to “mature” therefore varies. Generally your attorney will have to wait until you have reached one of two points in recovery:
- your injuries have fully recovered or you are so fully recovered that your doctor has released you from care, expecting that you will go on to a full recovery in a short period of time without any further medical treatment; or
- you have reached “maximum medical improvement” (MMI); that is, your injuries have healed as much as they are likely to and whatever you have at this point should be considered permanent (although you may continue to receive treatment, nothing is going cure you or resolve your injuries completely and you are at a “plateau” without further significant improvement expected).
When you have been released by your doctor as basically well, or have reached MMI, that is the end of the first stage of your case.
A second factor in the time it takes for a personal injury case to be resolved is the documentation of the losses. Although there can be a number of items of your damages or losses due to the collision, there are certain common ones that Virginia law allows you to recover for in your claim. Each of these losses has to be properly documented. This requires obtaining all the records and bills from your health care providers. If your injury involves aggravation of a pre-existing medical problem, often your attorney will need to meet with your doctor, review the prior medical records as well as the records from after the collision or date of injury, and determine what, in the doctor’s medical opinion, is most likely due to the accident. Then the doctor has to dictate a report and send it to us. Sometimes it takes several letters and a number of telephone calls before we receive a medical record. If time is missed from work, we will need a statement from your employer verifying your employment, rate of pay, and hours and days missed from work.
The length of time for your case to be fully documented and ready for a complete package of all documentation to be sent to the insurance company is also variable. Sometimes it takes a number of months. Without this proper documentation, when we are trying to negotiate with the insurance company, our arguments fall on “deaf ears.” As you can imagine, this leads to an even longer time in trying to get the insurance company to pay what is reasonable for your true injuries. When all necessary documentation has been received, organized into a package for the insurance company with all damages itemized, and is ready to be sent to the insurance company, that is the end of the second stage of your case.
A third factor in the time it takes for a personal injury claim to be resolved is what problematic issues there are in the case. Although there can be a lot of issues, there are four general types that seem to especially impact and delay a case. First, there may be questions of liability (who was at fault). If you, the investigating police officer, or anyone else did not obtain the names of any eyewitnesses at the scene of your injury, then there may be questions of what happened and it may not be clear that the person we claim is at fault really was at fault. Second, there may be questions of what injuries resulted from the accident and how serious they are. If you go to a doctor and don’t tell the doctor about every one of your injuries, then if certain complaints are first made much later, the insurance company will claim the later complaints are not for any injury that came from the accident. Similarly, if an injured person has not followed their doctor’s advice or followed their medical treatment, that creates an issue. You may think that a treatment is not working or that a medication is not going to help, but if you just stop physical therapy or don’t get a prescription filled, then the insurance company is going to think that you must not be hurting that badly (and will offer less money). If you stop going to the doctor even though you are still hurting, because you are too busy or don’t have transportation or any other reason, then the insurance company is going to think you must not really be in pain.
Third, there may be problems documenting the losses you sustained from the collision. A doctor may retire or move to another state. An employer may go out of business or may be unwilling to document the period of time that you were absent or your rate of pay. You may have a job where your income is highly variable and hard to document what you lost when you were unable to work, such as a real estate agent or a waitress or waiter. Or you may have prior treatment to the same part of your body that was injured in the collision, but your prior records are with health care providers who are out of state. All of these facts may make it more difficult to obtain records or to properly document or estimate your losses. Fourth, your injuries may be difficult for the doctors to diagnose the exact medical problems that came from the incident where you were injured. Medicine is still not an exact science, and many times physiologic changes caused by a traumatic injury may not be objectively verifiable with current medical tests. The process of elimination and testing may take a long period of time before a doctor can determine exactly what your problem is, and sometimes they never do. Without a diagnosis made with specific criteria and testing, your claim may be difficult to negotiate a settlement with the insurance company that reflects the true extent and effects of your injuries.
A fourth factor in the time it takes for a case to be resolved is the insurance company that is involved in the case. Some insurance companies are extremely difficult to negotiate with to obtain a reasonable settlement. In the movie “The Rainmaker,” an actress portraying an insurance adjuster testifies in court that her training with the insurance company on handling claims was to “deny, deny, deny.” Most insurance companies do not pay out money easily. At times an adjuster will request additional information multiple times, and it can be difficult to determine if the requests reflect a true need for more information or is just a delay tactic to drag out negotiations. Delay can wear down the claimant so that the injured person (you) will finally take an offer that is too low, just to end a process that you may find very frustrating and so you can move on with your life. Part of the skill of a negotiator is to determine when negotiations are in good faith and when they are just part of a strategy of attrition.
A fifth factor in the time it takes for a case to be resolved is issues about liens against the settlement or the validity of claims for reimbursement. After an acceptable offer has been negotiated with the insurance company, then we usually have to negotiate with health care providers about their bill balances, or with health insurers or health benefit plans about any claim they have for reimbursement. For instance, if you are injured during your employment, then you may have a workers compensation claim as well as a claim against the person who caused your injuries. However, by Virginia statute, you have to pay the workers compensation carrier back for any medical expense and wages they pay to you or on your behalf, if you make a recovery against someone else who caused your injuries.Determining exactly what the workers compensation insurer has paid, what of that is reimbursable, and then negotiating what we will pay them back, can take a number of months. Although there is a Virginia statute that says a health insurance company cannot require you to pay them back, there is a federal law that exempts many health plans from that state law; in that case, your health plan can require you to pay them back if the plan language is properly stated and the plan meets certain requirements. Verifying the validity of a reimbursement claim by a health plan or health insurer, and then negotiating any reimbursement, can take a while. Similarly, if Medicare or Medicaid have paid any of your bills, then they have lien against your recovery. That means that your attorney cannot release any money to you without making sure that Medicare or Medicaid are paid back. Confirming exactly who Medicare or Medicaid has paid and how much can take a number of months to verify, and then they apply a formula to determine exactly how much you have to pay back. Handling this properly with the involved government entities can take a very long time.
Although every personal injury case has different specific facts of how the injuries occurred, what injuries and losses were suffered, and what treatment led to what progression to what recovery, there are certain stages each case goes through leading to resolution (settlement or trial). There are also certain factors that may affect how fast a claim can be resolved. Hopefully this article will give you a brief overview of what is involved and what these stages are. Working as a team, we at the Allen Law Firm are all dedicated to moving your case to the best result possible in the shortest amount of time.
About the Author: Clayton Allen is a Mechanicsville, VA personal injury attorney with more than 20 years of experience defending the rights of those who have been injured due to no fault of their own. Clayton is a partner at Allen, Allen, Allen & Allen.
 At a jury trial in a Virginia Circuit Court, there are instructions of law that the judge gives to the jury. The most common reference book for these instructions, relied on by attorneys and judges, is the Virginia Model Jury Instructions that was created and maintained by a group of judges and attorneys. Virginia Model Jury Instruction No. 8.000 is entitled “General Damages”, and lists the elements or items of damages that appear frequently. For an article listing these damages, see Virginia Accident Law: What Damages Can You Recover?.
 This past summer, one attorney in our Firm needed to meet with an orthopedic surgeon to review records and obtain his opinions. This doctor will only meet with attorneys once a month on the last Friday of every month to discuss a patient. The first date the attorney could get was two months away. On the morning of the appointment, the doctor’s office called and said the doctor had emergency surgery and could not meet. This happened twice. So it was four months before the attorney could finally meet with the doctor, and then another three weeks before we received the report from the doctor stating his opinions. That case was held up for four months to get one piece of paper (but a critical piece of paper, of course, to prove the claim).
 The insurance company also knows that if your case ever went to trial, the jury would be told that an injured person must take reasonable steps to try and get well (such as going to the doctor and following the doctor’s advice), and if you don’t, and your injuries last longer or are more difficult treat, then the person who injured you is not responsible for that.
 See Virginia Code §65.2-309 at http://law.lis.virginia.gov/vacode/title65.2/chapter3/section65.2-309/.
 See Virginia Code §38.2-3405 at http://law.lis.virginia.gov/vacode/title38.2/chapter34/section38.2-3405/.
 See §502(a)(3) of the Employee Retirement Income Security Act of 1974 (ERISA). For a discussion in a recent U.S. Supreme Court decision, see U.S. Airways v. McCutchen (U.S Supreme Ct; 4/16/13). This area of law is extremely complex and rapidly evolving.