What am I entitled to recover?

If you and your personal injury attorney both feel that your situation warrants the pursuit of a claim, you could be entitled to damages in several forms. For instance, you could be entitled to recover for any costs you've incurred as a result of the incident, including medical costs and lost wages if you are unable to work. You could also recover damages for the pain and suffering you've endured since you were injured and if you're going to continue to suffer going forward. Finally, you could also be entitled to damages for loss of companionship and emotional distress, depending on the facts of your situation.


What is negligence?

Negligence is the legal term for any careless behavior that causes, or contributes to, an accident. For example, a person is negligent if he neglected to stop at a stop sign and, as a result, hits your car as you were coming through the intersection.


What does it cost to hire an attorney?

Personal injury, workers' compensation, and medical malpractice claims are usually handled on a contingency fee basis. In other words, the fee is a portion of the amount recovered.


What is wrongful death?

A wrongful death lawsuit alleges that a person was killed as a result of the negligence (or other liability) on the part of the defendant, and that the surviving dependents or beneficiaries are entitled to monetary damages as a result of the defendant's conduct.


Does the insurance company for the at-fault driver have the obligation to pay my medical bills and lost wages under Colorado's tort system?

Ultimately, the answer is "yes," although the insurance company will not normally settle a personal injury claim until the injured person is willing to resolve the entire claim with the payment of one lump sum. As a practical matter, the insurance company will not pay medical bills which are submitted on a periodic basis, prior to the payment of that lump sum. This is very different than the procedures under Colorado's old "No-Fault" system. Under that system, which was changed by the Colorado legislature during the 2003 session, an accident victim's own insurance company paid the medical bills as they were submitted. Under the present "tort system" however, there is no mechanism under the auto insurance laws to provide for the payment of medical bills and lost wages as they are incurred. Therefore, if a patient has health insurance, the bills are submitted to the health insurance company. If there is no health insurance available, some treating medical care providers are willing to accept a "lien." That means the doctor or other provider is willing to wait for the conclusion of a legal claim with the expectation that the bill will be paid at that time. If a provider is willing to accept a lien, the clinic will forego putting the bills into collection proceedings and will wait for payment until the conclusion of the case.


What documents or information should I bring with me to an initial consultation appointment at Kiel, Trueax & Gold, LLC?

You should bring all documents in your possession relating to your automobile accident, workers' compensation claim or other traumatic injury claim. But, if there are certain documents you do not have, just bring the documents you do have. We can request and promptly obtain any documents necessary for the handling of your case. Also, bring any notes you may have collected concerning your automobile collision, such as the name, address and telephone number of the at-fault driver. That driver's insurance information, including the claim number and the name and telephone number of any adjuster you may have talked to, is helpful information as well. We can photocopy all documents, letters and information you bring to us, so that you can retain the originals for your file at home. Once you have retained our firm, we take responsibility for gathering updated information as the case proceeds.


What steps will an attorney take on my behalf immediately after undertaking representation?

Your attorney at Kiel, Trueax & Gold, LLC will normally write a "letter of representation" to any insurance company associated with your case. He or she will also write to all treating doctors or other medical care providers, in order to begin building a complete medical file of all injuries sustained in the collision or incident. Our clients are mailed a photocopy of all letters and documents sent out from the office. This is one way we have of communicating with our clients. The attorney will conduct the necessary investigation of the accident or injury event. This may include having witnesses interviewed by our investigator and obtaining photographs of the accident scene or of the injuries. We will also request wage loss records from our client's employer, if there has been time missed from work. All of these steps will be taken in the first few weeks following the commencement of our representation.


When will my attorney make a settlement proposal to the at-fault driver's insurance company?

Normally, the attorney will meet with the client at a point in time when medical treatment has either been completed or when treatment is nearing completion. If possible, it is best to wait until an injured person has reached "maximum medical improvement" (MMI) before making settlement recommendations, because a treating doctor cannot give a realistic "prognosis" of his or her patient's medical condition until the patient has become stabile from the initial injuries. A prognosis is the doctor's statement of whether the patient has completely recovered from the injuries or, conversely, has been left with some degree of permanent injury or disability. Future treatment recommendations are often addressed in the doctor's prognosis, as well. To begin settlement negotiations before receiving a treating doctor's prognosis is not usually a good idea, because it is difficult to properly evaluate a personal injury claim without knowing this very important piece of the puzzle. In a workers' compensation claim, the treating doctor is not permitted to assign a permanent impairment rating until there has been a determination of maximum medical improvement. While the timing of a settlement proposal generally is dependant upon this finding of MMI, in some cases a settlement proposal can be made earlier than the date of MMI. For example, if a client is having significant financial difficulties and an early settlement is the only way of avoiding these difficulties, a settlement proposal can be made sooner. In other words, the practicalities of the real world can certainly be taken into account in determining the timing of a settlement proposal.


What is litigation?

Quite simply, the filing of a lawsuit, and the prosecution of that lawsuit until the time of settlement or trial. Normally, a lawsuit against an at-fault driver is filed either in the county where the collision took place or in the county where the at-fault driver lives. Either county is the proper "venue" for a suit. The suit papers, i.e., the Summons and Complaint, are then "served" by a process server upon the at-fault driver. Once served, that person, "the Defendant," will turn the suit papers over to his or her insurance company. The insurance company usually then forwards the papers to a law firm for the filing of an "Answer" to the Complaint. Once the Answer has been filed, the case becomes "at issue" and court deadlines begin to run.


Do most cases proceed into litigation?

Many cases do proceed into litigation because of the inability of the injured person and the at-fault driver's insurance company to agree as to the value of the claim. Following the commencement of litigation, some cases settle, often at a mediation. Mediations tend to occur a few months prior to a trial date. If a case does not settle, either at a mediation or otherwise, then it proceeds to a trial, usually in front of a jury of six persons.


What is the general timetable once a lawsuit is filed and the case goes into litigation?

Depending on the county where the litigation is filed, it will take anywhere from twelve to eighteen months for a case to proceed to trial. In the early stages of litigation, the parties will exchange written questions, called "interrogatories." After that, the attorney for the at-fault driver may want to take the deposition of the injured person. (And, the injured person's attorney will take the deposition of the at-fault driver.) A deposition is a face-to-face question and answer session with a court reporter present. The attorney attends the deposition with the client after he or she has met with the client beforehand to make sure the client is fully briefed on what to expect. Following the deposition, the case often goes to mediation, which is explained below.


What is mediation?

A mediation is also known as a settlement conference. Usually, the mediation is held at the office of a retired judge. This judge will have had many years experience presiding over the trials of personal injury and other cases. It is the goal of that judge to find common ground between the injury victim and the at-fault driver's insurance company. If that happens, the case settles and the trial date is canceled. If it does not, then the case will proceed to a jury trial. (Although mediators will still keep in communication with the parties to see if a settlement can be achieved before trial.) Mediations are required by nearly all of the courts in Colorado. A well-prepared attorney is often successful at setting a case at mediation. However, not all cases settle, because the injured person does not feel he or she is being offered fair value for the severity of the injuries and the consequences of those injuries. Not all cases should be settled, and if a case needs to be tried, the lawyers at Kiel, Trueax & Gold, LLC are prepared to vigorously try the case.


Are there certain types of information that cannot be presented to a jury if my case goes to trial?

Surprisingly, two important pieces of information concerning a car accident are not admissible into evidence at trial. First, a jury is not told about traffic tickets given by the police at the scene. Whether the at-fault driver was ticketed, or not ticketed, this information does not get presented to the jury. The purported reason for this rule is that if such evidence were admissible at trial, it would encourage more people to contest traffic charges, clogging the traffic courts with cases. Second, a jury is not told whether the at-fault driver had insurance coverage. The reason given for this rule of evidence is that if a jury knows an at-fault driver had insurance, it is more likely to award larger damages, knowing that the at-fault driver would not be personally responsible for the payment of those damages. An attorney for the injured person is allowed to inquire one time in jury selection as to whether any of the members of the jury panel are officers, shareholders or directors of the XYZ Insurance Company. Jurors, then, may realize that there is insurance for the injuries. But, if the word insurance is mentioned again during the course of the trial, it will likely cause the judge to declare a mistrial. Most people, when they hear that these two important facts will not be explained to the jury, have trouble understanding why the jury is not allowed to hear this evidence.


What if I have had prior injuries?

Depending on your age and your life experiences, you may well have had various injuries before the occurrence of your car collision or work injury. If you have, the insurance company will try to focus attention not on your recent injuries, but on your prior ones. Does that mean you do not have a claim for your recent traumatic injuries? No. It just means that the judge or jury will be told of your earlier injuries and will then decide what portion of your current condition is related to the recent collision or work injury. There is an instruction that informs the jury that if it can apportion out any earlier injuries, it should only award damages for the recent injuries. However, if the jury is incapable of apportioning the injuries, it must conclude that the later trauma caused the injuries. In straightforward terms, a Plaintiff obviously cannot recover for injuries which pre-existed a recent car accident or work injury. However, if he or she had a pre-existing condition which was not causing any symptoms (say arthritis or prior injuries which had healed fully) and then are injured by a new trauma, the injured person would have the right to recover for the symptoms they have experienced since the new trauma.


What types of doctors or other medical care providers generally treat injuries caused by trauma?

These are some of the doctors and other medical care providers who treat traumatically injured patients:

• Emergency room (ER) doctors
• Radiologists
• Orthopedic surgeons (bone doctors)
• Neurologists (nerve doctors)
• Neurosurgeons
• Osteopaths
• Chiropractors
• Vision specialists (Ophthalmologists and Optometrists)
• Psychiatrists, psychologists, and neuropsychologists
• Temporomandibular joint (TMJ) specialists (dentists)
• Physical therapists and massage therapists
• Physiatrists (physical medicine doctors)
• Occupational medicine doctors
• Pain management specialists
• Certified rehabilitation specialists
• Speech-language pathologists
• Otolaryngologists (ear, nose and throat (ENT) specialists)
• Internal medicine doctors
• Family medicine (family practice) doctors
• Pulmonologists (lung doctors)
• Plastic surgeons

What types of injuries are commonly seen where there has been trauma to the body?

Traumatic injuries include, but obviously are not limited to, the following:

• Concussion, closed head injury, cognitive disorder, brain injury
• Quadrapelegia, parapelegia
• Headache
• Temporomandibular joint (TMJ) dysfunction
• Vision injury (visual midline shift syndrome, detached retina, blurred vision)
• Post-traumatic depression
• Post-traumatic stress disorder (PTSD)
• Sleep disorder
• Ear injury (vertigo, tinnitus, equilibrium problems)
• Depression, anxiety
• Back sprain or strain injury (cervical, thoracic lumbar, lumbosacral)
• Musculoskeletal injury
• Shoulder injury (rotator cuff strain or tear, injury to the glenohumeral joint, clavicle or scapula)
• Wrist injury (fracture, sprain/strain, carpal tunnel syndrome)
• Ligament, tendon injury
• Blunt trauma to the chest or other body part
• Internal injury
• Contusion, laceration
• Post-traumatic fibromyalgia
• Radicular pain and numbness (radiculopathy) into the arms or legs
• Bowel or bladder dysfunction
• Nerve injury
• Bulging or herniated disc, normally diagnosed by MRI
• Hernia
• Hip injury
• Sciatic pain (leg pain caused by a disc injury)
• Broken bones (for example, fracture of humerus, tibia, fibula)
• Muscle spasm (for example in the trapezius, levator scapula or rhomboid muscles)
• Knee injury (torn meniscus, anterior cruciate ligament (ACL) tear)
• Foot injury (including plantar fasciitis)

How do the at fault driver's insurance policy limits affect personal injury cases in Colorado?

The minimum liability policy limits for an insured driver in Colorado are $25,000/$50,000. That means an at-fault driver who injures someone in a traffic accident will have up to $25,000 available under a liability policy to compensate any one injury victim, and up to $50,000 to compensate two or more victims of the same accident. A certain number of drivers only have minimum state limits of $25,000/$50,000. However, many drivers purchase higher liability policy limits. These higher policy limits are available at increments of $50,000/$100,000, $100,000/$300,000 and higher. Certain drivers even have an "umbrella policy," which provides coverage over and above their numerically stated policy limits. Umbrella policies tend to be in the amount of $1 million. Normally, when consumers purchase higher liability limits, they tend to choose limits of $100,000/$300,000. So, let's look at an example: You are sitting at a traffic light and are rearended by a negligent driver. That driver has liability limits higher than the state of Colorado minimum. Those limits are $50,000/$100,000. You have injuries which lead to an overnight stay in the hospital, and you ultimately incur medical bills of $40,000.00. Also, you miss two months from work because of your injuries. In this example, you would have the right to receive up to $50,000 from the insurance company for the at-fault driver. Now, say that you, the injured person, also have a car of your own, which is insured. And, you have chosen liability policy limits at $100,000/$300,000. Further, you also have chosen uninsured motorist benefits with limits of $100,000/$300,000. Under this scenario, your uninsured motorist benefits would convert to underinsured motorist benefits. (The at-fault driver is not uninsured, he or she is merely underinsured.) Pursuant to a law which became effective on January 1, 2008, your $100,000 of uninsured/underinsured motorist benefits would "stack" on top of the liability policy limits of the at-fault driver, and you would have the right to submit claims to both insurance companies (the at-fault driver's and yours) for a total of $150,000.00 (the at-fault driver's liability policy limits of $50,000 plus your own uninsured/underinsured motorist policy limits of $100,000). You might wonder why you should have to present a claim to your own insurance company under circumstances where you were not at fault for the collision. Two basic reasons: First, if you are not willing to accept the at-fault driver's policy limits and fully release that person from any further claims, that person's insurance company will not offer you those policy limits. In other words, you will be forced to trial against the at-fault driver. If you prevail at trial, you must then determine how to collect the amount of any verdict above policy limits from the at-fault driver's personal assets. Second, the reason you have purchased uninsured motorist insurance coverage is to protect you from a situation where the at-fault driver has either no insurance or minimal liability policy limits. It is important to note that making an uninsured or underinsured motorist claim against your own insurance company will not cause your own insurance premiums to increase. Your insurance company can only raise your rates if you were at fault for the accident. If you were not at fault, they cannot raise your rates. One further important point: it is generally necessary to get the permission of your own insurance company before accepting the liability policy limits of the at-fault driver. If you fail to do so, you may be voiding your underinsured motorist coverage. If you are represented by an attorney, it is the attorney's responsibility to determine all possible types of available insurance coverage and to advise you accordingly. This is especially important in the event of catastrophic, severely disabling injuries.


Will an attorney settle my case without me knowing the terms of the settlement?

Absolutely not. It is the attorney's job to fully inform the client of the various courses of action which may present themselves, and the likely consequences of following each course of action. If the client asks the attorney for his or her recommendation, the attorney will normally make a recommendation. However, it is ultimately the client's decision as to which course to authorize the attorney to follow. And it is certainly the client's decision as to whether to settle a case or proceed to trial. Settlement decisions are usually the most important decisions to be made in a case. These decisions are made in close consultation between the attorney and the client. No case is settled without the clear consent of the client. An attorney must clearly explain the client's options and then must proceed only with the client's specific authority.


How are maximum medical improvement (MMI) and permanent impairment determined in a workers' compensation case in Colorado?

An injured workers' authorized treating physician (ATP) makes a determination that the worker's condition has become stable, i.e., that the worker has reached maximum medical improvement (MMI). When that determination has been made, the doctor then determines if the worker has sustained permanent impairment, and, if so, how much. This is expressed in terms of a percentage rating. There is a book entitled The AMA Guides to the Evaluation of Permanent Impairment (Third Edition - Revised) which must be followed by all physicians when rating injured workers for permanent impairment. The short title of this book is the AMA Guides. Even though the AMA Guides are now in the sixth edition, the workers' compensation statute in Colorado requires that the Third Edition - Revised be used in determining the rating. The AMA Guides essentially look at the human body as an industrial machine or robot and, in a very mechanical way, provide guidelines for determining the degree of permanent injury of the various parts of the body. Many of the guidelines require the examining doctor to measure ranges of motion and convert these findings into an impairment rating. When rating arm or leg injuries, the AMA Guides lead the examining doctor to provide what is called an "extremity rating," as opposed to a "whole-person rating." Arm or leg injuries, even if severe, often lead to fairly low compensation for permanent impairment, because the law does not generally permit a conversion to whole-person impairment for compensation purposes. When a whole-person rating is given, the rating is plugged into a formula, which also takes into account the worker's age and rate of pay. The formula is used to calculate a dollar amount of compensation for permanent impairment. Some work-related injuries, of course, are not only to the trunk of the body, leading to a whole-person impairment rating, but also affect the arms or legs. Again, an injured worker in Colorado who has been placed at maximum medical improvement (MMI) becomes eligible for a determination of permanent impairment. The initial permanent impairment rating is conducted by the authorized treating physician. If the worker does not believe he or she has gotten a fair rating from that physician, there is a mechanism, through the Colorado Division of Workers' Compensation, called a Division Independent Medical Examination (DIME), by which another physician is selected and states a second opinion on MMI and permanent impairment. Unless that second rating is overcome by "clear and convincing evidence," that rating ultimately stands.

If you or a family member have been injured as a result of someone else's negligence, contact
Kiel, Trueax and Gold, LLC
We are an experienced Colorado Personal Injury Law Firm that will work hard to recover your losses.
Contact us at (303) 694-2666 or by email for your free consultation.