The following entry was published in the August issue of the New Hampshire Bar News, a respected publication that is distributed to attorneys across the Granite State. Attorneys Brenner G. Webb and Peter G. Webb offer their expertise on matters of Personal Injury and Workers’ Compensation.
Workers’ Compensation Law & Personal Injury Law: Framework of a Catastrophic Injury Case
By: Brenner G. Webb and Peter G. Webb
Catastrophic personal injury cases are infrequent enough that it can be helpful to review their fundamentals. A catastrophic injury can be loosely defined as a life-altering, permanent injury that often impacts a person’s ability to regain normal function and to live independently. This article will address some of the issues which comprise the framework particular to such cases.
A threshold issue for the plaintiff is the amount of applicable insurance coverage. Unlike our neighboring states, New Hampshire law does not obligate insurers to disclose the amount of available insurance coverage before suit is filed. That disclosure is not mandated until the Structuring Conference Order, which governs litigation deadlines, is approved by the Court. In instances of severe injury, insurers may be willing to disclose limits for the simple reason that the case value far exceeds the coverage, exposing their insured. Significant coverage is necessary for an adequate recovery and to cover the costs to properly prepare such a case. Such costs can be considerable and may require a significant outlay of funds over an extended period of time.
Monetary damages, of course, include the past and future expense of the care required by the injury. Assessing and valuing the future cost of providing adequate care to the client requires a high-quality life care plan. A life care plan must be prepared by someone who is competent to determine and predict the treatment and care which the client will require in the future as a result of the injury. This future care includes medication, medical care, medical supplies, equipment, custodial care, support services and therapy, housing and transportation.
An economic analysis is required to calculate the present value of the aggregate future cost of the services under the life care plan, as well as to calculate the value of any lost future earnings the client’s injury has caused.
Often, a separate but key issue is the effect that any recovery for the client will have on the client’s future eligibility for health insurance coverage. Careful consideration and coordination of State Medicaid, Federal Medicare, Special Needs Trust planning, and structured settlements can protect the client’s eligibility for Medicaid and Medicare. This analysis includes the determination of eligibility and disqualification factors, the allocation of damages, the setting
aside of proceeds to assure payment of probable future care to which the client may become disentitled by virtue of a recovery, and the most cost-effective means of funding the future care.
Reimbursement of medical providers and health insurers, as in any personal injury case, may also be a significant issue. Particularly in the instance of Medicare, diligent efforts will be required to ensure proper lien repayment in order not to jeopardize coverage.The extraordinary needs of the client may need to be met early on. In the the right case, advances against the eventual recovery should be sought as appropriate to contain the injured party’s’ damages and to avoid developments which could compound the responsible party’s culpability.
Brenner Webb and Peter Webb of Winer and Bennett, LLP in Nashua represent injured parties only in matters of personal injury and workers’ compensation. Visit www.winerbennett.com for more information.