How We Handle Your Personal Injury Claim
We are here to help you through the process of your claim. Below you will find instructions and suggestions for collecting important information and addressing significant issues.
Talking About Your Claim
- Do not talk to anyone about any aspect of your case.
- Talk only to the attorneys and staff of our law firm about your case.
- If you receive any letters or papers about your case from anyone else, send them to us.
- Do not give any statements or sign any papers for anyone but us.
- Do not contact the other party or their insurance company.
- Do not give anyone an estimate of the value of your claim.
- If you have any type of internet presence (i.e. Facebook, MySpace, Twitter, or blogs), we strongly recommend that you remove it. The other side will be investigating your background, how you are doing, and what you are saying. Moreover, they will be entitled to see what you have posted, even if they cannot access it themselves. For this reason, the law requires that you still preserve anything that you do remove from the internet.
- Notify us if you are contacted by anyone about your case.
- It is a crime in Texas for a lawyer, law firm, or someone representing a lawyer or law firm to contact, in person or by phone, an accident victim for purposes of legal representation if the victim has not first requested the call or personal visit. Notify us as well as the State Bar of Texas immediately if you are contacted in this manner. To report such contact to the State Bar of Texas, call (toll free) the Office of the Chief Disciplinary Counsel at 1-877-953-5535.
- Provide us with a copy of any letters you receive from anyone about your accident or injuries, including letters from your own insurance company.
- Avoid the efforts of friends and relatives to offer you legal advice.
While these persons may mean well, their lack of training and experience in these matters may result in confusion or misunderstandings. Consult only with your attorney about the legal aspects of your case.
Getting Medical Treatment
- We do not recommend particular doctors or any particular course of medical treatment. We do recommend, however, that you go to the doctor of your choice, that you have your injury fully evaluated, and that you complete your medical treatment before you settle your claim. Upon your request, we will try to assist you in getting examined by the doctor of your choice and receiving the medical treatment you need. If you do not know a doctor, we can give you the names of doctors who have treated our clients in the past.
- If you need transportation for medical treatment, we will arrange upon your request for a taxi service for you. The cost of this personal taxi service, however, will be deducted from your portion of the settlement along with your other unpaid medical bills.
Paying for Your Medical Care
- Use your own medical insurance policy or plan up front to pay as much of the hospital and doctor bills as possible. There is a possibility that your insurance company will require reimbursement out of your portion of the settlement for those medical bills that they have paid. We will determine whether there is such a reimbursement (or “subrogation”) claim and pay it out of your portion of the settlement with your authorization. Otherwise, we will assume that this is a matter which you are handling yourself.
- If you do not have insurance and you are unable to pay your doctors’ bills, contact their offices, let them know that you are concerned, and work out minimum payment schedules with them no matter how small the payment may have to be. We cannot expect them to cooperate with us if you do not cooperate with them.
- If you do not have medical insurance or the funds available to pay for your medical treatment, we can usually arrange for it to be done on credit. Unless you request otherwise, we assume that we have your permission to assure the hospitals, doctors, and other health care providers that they will be paid in full out of your portion of the settlement for their medical treatment if you cannot pay them at this time.
- Let us know immediately if you cannot afford to go to the doctor.
- Regardless of the outcome of your case, you will always be responsible for paying for your health care.
- Keep track of your medical expenses.
- Obtain all medical, hospital, and drug bills and give a copy of them to us.
- Keep an up-to-date list of all of your medical bills. This list should reflect how much has been charged by each health care provider, how much of the bill has been paid, who paid it, and how much, if anything, is still owed to each health care provider. You should check this list at the time of your settlement to confirm that all of your medical bills are paid out of your settlement.
Cooperate Fully With Your Doctor
- Your doctor’s reports and testimony will probably determine the outcome of your case. Keep all of your appointments with the doctor, follow all of the doctor’s instructions, and see the doctor as often as is medically necessary.
- Tell the doctor about all of your complaints. Do not minimize your ailments, but do not exaggerate. Remember that the doctor is probably writing down everything that you say, and his notes may be used in court.
- Tell the doctor about any relevant pre-existing conditions or prior injuries.
- Stopping medical treatment before the doctor releases you can be a costly mistake. If you do stop treatment, you may not be compensated for your continuing pain and impairment. The insurance company will assume that you have recovered from your injuries.
- If the doctor has told you not to engage in an activity, do not do it. You may re-injure yourself or prolong your treatment if you attempt to do activities you should not be doing.
- If the doctor releases you from therapy and you are still in pain, return to the doctor for further treatment until the pain goes away.
- The type and amount of medical treatment you receive is an indication of the seriousness of your injuries. The client who receives medical treatment of $500.00 will not, as a general rule, receive the same settlement as a client with $5,000.00 in medical treatment. You should not, however, run up unnecessary medical charges.
- Insurance companies have a very simple rule. The rule is: “If your injury is not serious enough for you to see a doctor, it is not serious enough for you to be compensated.”
Keep Us Informed
- Advise us of all the doctors you see, and notify us in advance if you change doctors or if you plan to see a new doctor.
- Keep a list of every place you go for medical treatment after your accident. The list should include the date you went there, and what type of medical treatment you received, regardless of whether it is related to your accident. We will need this list to go to court.
- Notify us if there is a change in your medical condition or if you are released by the doctor.
Documenting Lost Income
- Obtain from your employer a letter stating the exact days you missed from work because of this accident, how much you are paid, and the amount of money you would have made if you had been working on these days. If you had to use vacation or sick time, the letter should make the amount of such time used clear as well. Make sure your employer understands the reason you are unable to work is due to your accident.
- Let us know if your injury has prevented you from advancing in your employment or if it has prevented you from obtaining employment, and furnish us with any supporting documentation.
- Give us a copy of any statements from your doctor restricting you from work, limiting your work, or releasing you to go back to work. You should get such a statement from your doctor every time you go to the doctor if you remain off work.
- If we go to court, we will need your W-2 forms and federal income tax returns for the five (5) calendar years before your accident and all years since your accident.
- If you are self-employed, your economic loss claim will be based on the actual cost of hiring someone to replace you while you are disabled, or the reduction in your net income caused by your inability to work.
- If you pay, or become obligated to pay, for a service you could have performed yourself, you may be entitled to compensation for this loss. Substituted services include: transportation, household help, help taking care of your family, etc. To be compensated for substituted services, the doctor must write a prescription for the service or a letter instructing you not to perform the activity. You must have receipts, canceled checks, or contracts showing who performed the service.
When should you go back to work?
- If the doctor releases you to return to work, and you think you should not return, at least try to work, and then return to the doctor if you are unable to do your work.
- If you are able to work, go to work.
Using Your Insurance
It may take a long time to get you compensated for all of your medical bills, lost earnings, property loss, and other damages. Although your insurance company may be entitled to reimbursement out of your portion of any eventual settlement, we recommend that you use any insurance coverage available to you while you are waiting to go to court. In this respect, we also recommend that you:
- If the doctor releases you to return to work, and you think you should not return, at least try to work, and then return to the doctor if you are unable to do your work.
- Send us a copy of any Explanation of Benefits or “E.O.B” which you receive from any insurance company or government health care program.
- Notify your auto insurance agent immediately if your injury resulted from an auto accident. This may be necessary to preserve your insurance benefits.
- If you were injured in an auto accident, provide us with a copy of the auto insurance policy for the car in which you were riding, the personal auto insurance policy of the driver of the car in which you were riding, and your personal auto insurance policy. We will check to be sure you are receiving all of your insurance benefits.
Using Helpful Government and Community Resources
- If you are eligible for Medicare, Medicaid, or any type of government program that will pay your medical bills, use it. In this regard, there are deadlines for applying for such government benefits, so be sure that you apply for them in a timely manner. Whenever a government program pays for part or all of your medical care, it may require that you reimburse it out of your portion of any settlement. This is particularly true if you receive financial assistance for medical care through Medicaid, Medicare, or the Veterans’ Administration. We will determine the existence and the amount of any government program’s right to reimbursement and pay it with your authorization, otherwise we will assume that this is a matter which you are handling yourself.
- If you are sixty-five (65) years of age or older, you are eligible for Medicare through the Social Security Administration. For more information call 1-800-772-1213.
- If you are indigent and you cannot afford medical care, contact the office of the Indigent Care Program which is usually located in the major hospital of your county or in the county courthouse.
- If you do not qualify for the Indigent Health Care Program and you cannot afford medical care, call the Health and Human Services Commission’s Medicaid Hotline at 1-800-252-8263 for information regarding your eligibility to receive Medicaid benefits and other financial assistance.
- If you were employed at the time of your injury and need additional medical treatment to get back to work, the Texas Department of Assistive and Rehabilitative Services may pay for reasonable and necessary surgical procedures to allow you to return to work. You can contact the Texas Department of Assistive and Rehabilitative Services at 1-800-628-5115.
- If you need emotional or psychological counseling, contact the Texas Health and Human Services Commission at 903-595-4841 or 903-534-9794. In East Texas, you can also contact The Andrews Center at 903-597-1351.
- If you need basic medical information by telephone you may want to call:
> TeleCare at 1-800-535-9799
> HealthFirst at1-800-648-8141
- If you need job training or rehabilitation services in order to be able to work, contact the Texas Department of Assistive and Rehabilitation Services at 903-581-8151.
- If you are able to work but you do not have a job, contact the Texas Employment Commission. (Please note that they will require that you sign a form which states that you are ready, willing, and able to work and that form will be admissible as evidence in your trial. Therefore, you should note on this form any physical limitations or restrictions which your doctor has placed on you for purposes of employment.)
- If you are unable to work for more than twelve (12) continuous months and you need financial support, contact the SocialSecurity Administration at 903-561-6910.
- If you want to know what other community services or agencies are available to help you in East Texas, call the United Way services at: 903-534-9977 (or just 211).
- If your injuries arose from criminal conduct, you may be entitled to assistance from the Crime Victim Compensation Fund. Vehicular crimes such as driving while intoxicated, intoxication manslaughter, intoxication assault or failure to stop and render aid are included under the Crime Victim’s Compensation Act. The Crime Victims’ Compensation Program may pay, if you qualify, for medical and hospital expenses, physical therapy, vocational therapy or nursing services, counseling, loss of earnings or support, lost wages, travel reimbursement, child care, and funeral or burial expenses. To learn more about these benefits, contact the Crime Victims Compensation Program at 1-800-983-9933.
Protecting Government Benefits
If you are receiving government benefits or are eligible for government assistance based upon financial hardship (i.e., Medicaid, S.S.I.), your settlement may preclude your eligibility for further assistance. Please notify us in writing of any government benefits which you are receiving and be sure to discuss your options with us before accepting a settlement.
Investigating Your Claim
Identify All Witnesses
- Furnish us with the correct name, address, and telephone number of any and all witnesses to how or why your accident occurred. Obtain their business as well as their home address if they work outside of their home.
- Furnish us with name, address, and telephone number of any person, government agency, or other organization which may have investigated your accident.
Save All Evidence
- Keep and store everything pertaining to your accident such as clothing you were wearing at the time and/or the product that injured you.
- If your injury requires the use of a cast, brace, or other medical appliance, save it for evidence in trial.
- If you have any records or email relating to your accident or your claim on your computer, back it up, save it, and give a copy of it to us.
Share Photographs and Videos
- Send us any photographs you have relating to this accident — both property damage and bodily injury photographs.
- Let us know if your injuries or your medical procedures are photographed or videotaped by your doctor or the hospital.
- Furnish us with a copy of any accident reports which you may have received or turned in to anyone.
Watch Out for Other Investigators
Understand that the other side might place you under surveillance. It is not unusual for insurance companies and defendants to employ investigators to question your neighbors or to videotape you engaging in your daily activities. Therefore, conduct yourself accordingly and notify us immediately if you suspect that you have been placed under any type of surveillance.
Settlement Considerations
Taxes
Settlements received on account of personal physical injuries or physical sickness are generally non-taxable (Interest earned on a settlement after it is received, however, is generally taxable.). Nonetheless, there can be tax consequences depending upon the type of settlement you receive. We therefore recommend that you consult with your personal tax advisor before entering into a settlement for a significant amount of money.
Divorce
As a general rule, a spouse’s compensation for their injury sustained during marriage is the separate property of that spouse. For example, recovery for physical pain, impairment, disfigurement, and mental anguish is separate property. On the other hand, recovery for loss of earning capacity and medical expenses incurred during the marriage as well as other expenses for which the community estate was liable, is considered community property.
When a spouse receives a settlement in a personal injury action, the presumption of community property applies. When a settlement is received, some of which could be community property and some which could be separate property, the burden is on the injured spouse in a divorce to show which portion of the settlement is his or her separate property. If the injured spouse cannot meet this burden, the entire settlement is deemed community property.
Unless specifically requested by you, we do not attempt to classify your settlement as either separate or community property because of possible tax consequences or conflicts of interest. If you are contemplating a divorce, please notify us and advise us as to how you want your settlement classified before you authorize us to settle your case.
Bankruptcy
If you file for bankruptcy after an accident, your claim as well as your settlement will probably belong to the bankruptcy court. Please notify us immediately if you have or are contemplating filing for bankruptcy.
Death
If your settlement is worth hiring a lawyer, it is also worth having a Will to ensure that your settlement is distributed according to your wishes in the event of your death. If you do not have a Will, we will be happy to refer you to an attorney who can draft the proper Will for you.
Structured Settlements
You can structure all or a portion of your settlement in many types of cases. A structured settlement essentially involves the purchase of a special type of annuity that provides for a guaranteed series of tax-free payments in the future. Structured settlements are often used to guarantee that money will be available for future needs as well as to earn tax-free interest on a settlement.
You usually cannot set up a structured settlement once you have settled your case. If you are interested in a structured settlement, please notify us before authorizing us to settle your case.
Government Benefits
A financial settlement can effect your right to government benefits. For example, if you are receiving government benefits based upon your financial need for those benefits, a settlement may eliminate your financial need along with your right to those government benefits. If you are receiving any such benefits and want to try to preserve your right to continue receiving such benefits, please consult with us about this before authorizing us to settle your case.
Workers’ Compensation Benefits
If you receive a settlement for an injury or death for which you are receiving workers’ compensation benefits, payment of the workers’ compensation benefits (including health care benefits as well as disability payments) is usually suspended or terminated.
Moreover, the law generally requires that the workers’ compensation insurance company be repaid out of your settlement for providing these benefits. If you are concerned about losing these benefits, please consult with us before authorizing us to proceed further with your case.
Free & Confidential Consultation
"I am so happy to have chosen the best law firm around. The staff is amazing in handling your questions promptly. I hope I don't ever need them again, but if I do, there is no question I will be back. Thank y'all so much for helping me." - Heather N.
While these persons may mean well, their lack of training and experience in these matters may result in confusion or misunderstandings. Consult only with your attorney about the legal aspects of your case.
Getting Medical Treatment
- We do not recommend particular doctors or any particular course of medical treatment. We do recommend, however, that you go to the doctor of your choice, that you have your injury fully evaluated, and that you complete your medical treatment before you settle your claim. Upon your request, we will try to assist you in getting examined by the doctor of your choice and receiving the medical treatment you need. If you do not know a doctor, we can give you the names of doctors who have treated our clients in the past.
- If you need transportation for medical treatment, we will arrange upon your request for a taxi service for you. The cost of this personal taxi service, however, will be deducted from your portion of the settlement along with your other unpaid medical bills.
Paying for Your Medical Care
- Use your own medical insurance policy or plan up front to pay as much of the hospital and doctor bills as possible. There is a possibility that your insurance company will require reimbursement out of your portion of the settlement for those medical bills that they have paid. We will determine whether there is such a reimbursement (or “subrogation”) claim and pay it out of your portion of the settlement with your authorization. Otherwise, we will assume that this is a matter which you are handling yourself.
- If you do not have insurance and you are unable to pay your doctors’ bills, contact their offices, let them know that you are concerned, and work out minimum payment schedules with them no matter how small the payment may have to be. We cannot expect them to cooperate with us if you do not cooperate with them.
- If you do not have medical insurance or the funds available to pay for your medical treatment, we can usually arrange for it to be done on credit. Unless you request otherwise, we assume that we have your permission to assure the hospitals, doctors, and other health care providers that they will be paid in full out of your portion of the settlement for their medical treatment if you cannot pay them at this time.
- Let us know immediately if you cannot afford to go to the doctor.
- Regardless of the outcome of your case, you will always be responsible for paying for your health care.
- Keep track of your medical expenses.
- Obtain all medical, hospital, and drug bills and give a copy of them to us.
- Keep an up-to-date list of all of your medical bills. This list should reflect how much has been charged by each health care provider, how much of the bill has been paid, who paid it, and how much, if anything, is still owed to each health care provider. You should check this list at the time of your settlement to confirm that all of your medical bills are paid out of your settlement.
Cooperate Fully With Your Doctor
- Your doctor’s reports and testimony will probably determine the outcome of your case. Keep all of your appointments with the doctor, follow all of the doctor’s instructions, and see the doctor as often as is medically necessary.
- Tell the doctor about all of your complaints. Do not minimize your ailments, but do not exaggerate. Remember that the doctor is probably writing down everything that you say, and his notes may be used in court.
- Tell the doctor about any relevant pre-existing conditions or prior injuries.
- Stopping medical treatment before the doctor releases you can be a costly mistake. If you do stop treatment, you may not be compensated for your continuing pain and impairment. The insurance company will assume that you have recovered from your injuries.
- If the doctor has told you not to engage in an activity, do not do it. You may re-injure yourself or prolong your treatment if you attempt to do activities you should not be doing.
- If the doctor releases you from therapy and you are still in pain, return to the doctor for further treatment until the pain goes away.
- The type and amount of medical treatment you receive is an indication of the seriousness of your injuries. The client who receives medical treatment of $500.00 will not, as a general rule, receive the same settlement as a client with $5,000.00 in medical treatment. You should not, however, run up unnecessary medical charges.
- Insurance companies have a very simple rule. The rule is: “If your injury is not serious enough for you to see a doctor, it is not serious enough for you to be compensated.”
Keep Us Informed
- Advise us of all the doctors you see, and notify us in advance if you change doctors or if you plan to see a new doctor.
- Keep a list of every place you go for medical treatment after your accident. The list should include the date you went there, and what type of medical treatment you received, regardless of whether it is related to your accident. We will need this list to go to court.
- Notify us if there is a change in your medical condition or if you are released by the doctor.
Documenting Lost Income
- Obtain from your employer a letter stating the exact days you missed from work because of this accident, how much you are paid, and the amount of money you would have made if you had been working on these days. If you had to use vacation or sick time, the letter should make the amount of such time used clear as well. Make sure your employer understands the reason you are unable to work is due to your accident.
- Let us know if your injury has prevented you from advancing in your employment or if it has prevented you from obtaining employment, and furnish us with any supporting documentation.
- Give us a copy of any statements from your doctor restricting you from work, limiting your work, or releasing you to go back to work. You should get such a statement from your doctor every time you go to the doctor if you remain off work.
- If we go to court, we will need your W-2 forms and federal income tax returns for the five (5) calendar years before your accident and all years since your accident.
- If you are self-employed, your economic loss claim will be based on the actual cost of hiring someone to replace you while you are disabled, or the reduction in your net income caused by your inability to work.
- If you pay, or become obligated to pay, for a service you could have performed yourself, you may be entitled to compensation for this loss. Substituted services include: transportation, household help, help taking care of your family, etc. To be compensated for substituted services, the doctor must write a prescription for the service or a letter instructing you not to perform the activity. You must have receipts, canceled checks, or contracts showing who performed the service.
When should you go back to work?
- If the doctor releases you to return to work, and you think you should not return, at least try to work, and then return to the doctor if you are unable to do your work.
- If you are able to work, go to work.
Using Your Insurance
It may take a long time to get you compensated for all of your medical bills, lost earnings, property loss, and other damages. Although your insurance company may be entitled to reimbursement out of your portion of any eventual settlement, we recommend that you use any insurance coverage available to you while you are waiting to go to court. In this respect, we also recommend that you:
- If the doctor releases you to return to work, and you think you should not return, at least try to work, and then return to the doctor if you are unable to do your work.
- Send us a copy of any Explanation of Benefits or “E.O.B” which you receive from any insurance company or government health care program.
- Notify your auto insurance agent immediately if your injury resulted from an auto accident. This may be necessary to preserve your insurance benefits.
- If you were injured in an auto accident, provide us with a copy of the auto insurance policy for the car in which you were riding, the personal auto insurance policy of the driver of the car in which you were riding, and your personal auto insurance policy. We will check to be sure you are receiving all of your insurance benefits.
Using Helpful Government and Community Resources
- If you are eligible for Medicare, Medicaid, or any type of government program that will pay your medical bills, use it. In this regard, there are deadlines for applying for such government benefits, so be sure that you apply for them in a timely manner. Whenever a government program pays for part or all of your medical care, it may require that you reimburse it out of your portion of any settlement. This is particularly true if you receive financial assistance for medical care through Medicaid, Medicare, or the Veterans’ Administration. We will determine the existence and the amount of any government program’s right to reimbursement and pay it with your authorization, otherwise we will assume that this is a matter which you are handling yourself.
- If you are sixty-five (65) years of age or older, you are eligible for Medicare through the Social Security Administration. For more information call 1-800-772-1213.
- If you are indigent and you cannot afford medical care, contact the office of the Indigent Care Program which is usually located in the major hospital of your county or in the county courthouse.
- If you do not qualify for the Indigent Health Care Program and you cannot afford medical care, call the Health and Human Services Commission’s Medicaid Hotline at 1-800-252-8263 for information regarding your eligibility to receive Medicaid benefits and other financial assistance.
- If you were employed at the time of your injury and need additional medical treatment to get back to work, the Texas Department of Assistive and Rehabilitative Services may pay for reasonable and necessary surgical procedures to allow you to return to work. You can contact the Texas Department of Assistive and Rehabilitative Services at 1-800-628-5115.
- If you need emotional or psychological counseling, contact the Texas Health and Human Services Commission at 903-595-4841 or 903-534-9794. In East Texas, you can also contact The Andrews Center at 903-597-1351.
- If you need basic medical information by telephone you may want to call:
> TeleCare at 1-800-535-9799
> HealthFirst at1-800-648-8141
- If you need job training or rehabilitation services in order to be able to work, contact the Texas Department of Assistive and Rehabilitation Services at 903-581-8151.
- If you are able to work but you do not have a job, contact the Texas Employment Commission. (Please note that they will require that you sign a form which states that you are ready, willing, and able to work and that form will be admissible as evidence in your trial. Therefore, you should note on this form any physical limitations or restrictions which your doctor has placed on you for purposes of employment.)
- If you are unable to work for more than twelve (12) continuous months and you need financial support, contact the SocialSecurity Administration at 903-561-6910.
- If you want to know what other community services or agencies are available to help you in East Texas, call the United Way services at: 903-534-9977 (or just 211).
- If your injuries arose from criminal conduct, you may be entitled to assistance from the Crime Victim Compensation Fund. Vehicular crimes such as driving while intoxicated, intoxication manslaughter, intoxication assault or failure to stop and render aid are included under the Crime Victim’s Compensation Act. The Crime Victims’ Compensation Program may pay, if you qualify, for medical and hospital expenses, physical therapy, vocational therapy or nursing services, counseling, loss of earnings or support, lost wages, travel reimbursement, child care, and funeral or burial expenses. To learn more about these benefits, contact the Crime Victims Compensation Program at 1-800-983-9933.
Protecting Government Benefits
If you are receiving government benefits or are eligible for government assistance based upon financial hardship (i.e., Medicaid, S.S.I.), your settlement may preclude your eligibility for further assistance. Please notify us in writing of any government benefits which you are receiving and be sure to discuss your options with us before accepting a settlement.
Investigating Your Claim
Identify All Witnesses
- Furnish us with the correct name, address, and telephone number of any and all witnesses to how or why your accident occurred. Obtain their business as well as their home address if they work outside of their home.
- Furnish us with name, address, and telephone number of any person, government agency, or other organization which may have investigated your accident.
Save All Evidence
- Keep and store everything pertaining to your accident such as clothing you were wearing at the time and/or the product that injured you.
- If your injury requires the use of a cast, brace, or other medical appliance, save it for evidence in trial.
- If you have any records or email relating to your accident or your claim on your computer, back it up, save it, and give a copy of it to us.
Share Photographs and Videos
- Send us any photographs you have relating to this accident — both property damage and bodily injury photographs.
- Let us know if your injuries or your medical procedures are photographed or videotaped by your doctor or the hospital.
- Furnish us with a copy of any accident reports which you may have received or turned in to anyone.
Watch Out for Other Investigators
Understand that the other side might place you under surveillance. It is not unusual for insurance companies and defendants to employ investigators to question your neighbors or to videotape you engaging in your daily activities. Therefore, conduct yourself accordingly and notify us immediately if you suspect that you have been placed under any type of surveillance.
Settlement Considerations
Taxes
Settlements received on account of personal physical injuries or physical sickness are generally non-taxable (Interest earned on a settlement after it is received, however, is generally taxable.). Nonetheless, there can be tax consequences depending upon the type of settlement you receive. We therefore recommend that you consult with your personal tax advisor before entering into a settlement for a significant amount of money.
Divorce
As a general rule, a spouse’s compensation for their injury sustained during marriage is the separate property of that spouse. For example, recovery for physical pain, impairment, disfigurement, and mental anguish is separate property. On the other hand, recovery for loss of earning capacity and medical expenses incurred during the marriage as well as other expenses for which the community estate was liable, is considered community property.
When a spouse receives a settlement in a personal injury action, the presumption of community property applies. When a settlement is received, some of which could be community property and some which could be separate property, the burden is on the injured spouse in a divorce to show which portion of the settlement is his or her separate property. If the injured spouse cannot meet this burden, the entire settlement is deemed community property.
Unless specifically requested by you, we do not attempt to classify your settlement as either separate or community property because of possible tax consequences or conflicts of interest. If you are contemplating a divorce, please notify us and advise us as to how you want your settlement classified before you authorize us to settle your case.
Bankruptcy
If you file for bankruptcy after an accident, your claim as well as your settlement will probably belong to the bankruptcy court. Please notify us immediately if you have or are contemplating filing for bankruptcy.
Death
If your settlement is worth hiring a lawyer, it is also worth having a Will to ensure that your settlement is distributed according to your wishes in the event of your death. If you do not have a Will, we will be happy to refer you to an attorney who can draft the proper Will for you.
Structured Settlements
You can structure all or a portion of your settlement in many types of cases. A structured settlement essentially involves the purchase of a special type of annuity that provides for a guaranteed series of tax-free payments in the future. Structured settlements are often used to guarantee that money will be available for future needs as well as to earn tax-free interest on a settlement.
You usually cannot set up a structured settlement once you have settled your case. If you are interested in a structured settlement, please notify us before authorizing us to settle your case.
Government Benefits
A financial settlement can effect your right to government benefits. For example, if you are receiving government benefits based upon your financial need for those benefits, a settlement may eliminate your financial need along with your right to those government benefits. If you are receiving any such benefits and want to try to preserve your right to continue receiving such benefits, please consult with us about this before authorizing us to settle your case.
Workers’ Compensation Benefits
If you receive a settlement for an injury or death for which you are receiving workers’ compensation benefits, payment of the workers’ compensation benefits (including health care benefits as well as disability payments) is usually suspended or terminated.
Moreover, the law generally requires that the workers’ compensation insurance company be repaid out of your settlement for providing these benefits. If you are concerned about losing these benefits, please consult with us before authorizing us to proceed further with your case.