Frequently Asked Questions about Personal Injury, Medical Malpractice, and Insurance Disputes

There's no accurate way to guarantee a settlement amount in a Virginia personal injury claim. The best way to estimate what your claim may be worth is to consult with an attorney who has experience with cases similar to yours. Your attorney can review your claim details and use past settlements as a starting point to estimate a reasonable amount for your case.

Your Virginia personal injury claim settlement amount usually involves compensation for: 

• lost wages;
• medical bills;
• pain and suffering;
• future medical expenses; and
• future lost wages. 

Your current lost wages and medical bills are easily calculated and factored into your settlement amount. The future amounts are only able to be estimated, and the pain and suffering damages are typically at the discretion of the jury.

There's no solid formula for correctly determining a settlement amount for your Virginia personal injury claim. Your best plan is to contact a Fairfax personal injury attorney to help you estimate the value and work toward a fair settlement. Never trust an attorney who guarantees you a specific settlement amount, as there is no way to guarantee an insurance company will even settle your claim, let alone for a specific dollar figure.

Contacting a Fairfax Personal Injury Attorney

You don't have to deal with insurance companies and paperwork alone when you're looking to file a Virginia personal injury claim. Fairfax personal injury attorney Ben Glass fights to help victims in the Virginia and D.C. areas settle their personal injury claims.

You can download a FREE copy of our consumer guide, The Five Deadly Sins That Can Wreck Your Injury Claim, to learn more about personal injury claims in Virginia.

If you have a question for Ben, you can submit it confidentially online at JustAskBenGlass.com.

Most of the time, a Virginia personal injury claim can be resolved without the need to go to court for a full-blown trial. But if the insurance company denies your claim or refuses to offer a fair settlement, you may need to take the case before a judge. When a claim cannot be fairly resolved between you and the insurance company, you may need to file a personal injury lawsuit.

A personal injury lawsuit is best conducted with the help of a Fairfax personal injury attorney. Even in the early stages when you file a claim with your insurance company, you should consult with an attorney to help build your case. The more familiar the attorney is with your case from the start, the better they can prepare your case for a lawsuit.

When you find it necessary to take your claim to court as a personal injury lawsuit, your case will be heard by a judge and jury to determine if you are entitled to compensation. This is often the only option for victims whose insurance companies wrongfully deny their claim or refuse to offer a fair settlement amount to compensate for their damages.

When choosing an attorney, make sure you ask them about their attitude when it comes to filing a personal injury lawsuit, their trial experience and the potential need to take your claim to trial. Some lawyers refuse to take cases that end up going to trial, and many have never actually been in court before!

When disability insurance benefits are denied, the insurance company has to tell you WHY. Then you can appeal their decision, giving your reasons and supporting evidence for why they are wrong. When they evaluate your appeal, they are supposed to – by law – only consider the original reason they had for denying your claim and your arguments against that. If they decide you are right, you win – that’s the law.

Unfortunately, whether insurance company appeals managers don’t know the law or don’t care, sometimes they will do something incredibly frustrating – they will say “okay, you were right about ABC. But now your claim is denied because of XYZ.” This is called “changing the reason for the denial.” It is against the law, and it happens all the time. When it does happen, your only recourse is to file a lawsuit. This is why we say you MUST have an experienced attorney who understands disability insurance law (called ERISA) on your side from Day 1.

We have a client who was injured in an auto accident that left him with traumatic brain injury and a host of problems associated with that. He had a disability insurance policy with his employer, and the policy paid benefits for many years. One day, out of the blue, he got a letter from the insurance company (let’s call them Aetna) saying that his benefits were denied because his medical records showed he was disabled due to Chronic Pain Syndrome, and his policy limits coverage for Chronic Pain Syndrome to two years – which had long since passed. We appealed, submitting letters from his doctors and medical records showing that Chronic Pain Syndrome was just ONE of the effects that lingered after the car accident – and his true disabling condition was Traumatic Brain Injury (which had no coverage limitations). The insurance company denied the appeal, but not because they disagreed about the Traumatic Brain Injury diagnosis. They denied the appeal because they said they reviewed the records again and found that actually, he was not disabled at all!

This is an insurance company that simply got tired of paying the claim. Of course, that’s not allowed, but it happens all the time. We have filed a lawsuit, and we are confident we will win (judges do NOT like to see this kind of monkey business from insurance companies).

For a deeper dive, here’s the case law supporting the “no new reason for the denial” rule:

When an insurer changes the basis for its denial during the appeal process - whether during the administrative review or judicial review - that opportunity is lost. See Thompson v. Life Ins. Co. of N. America, 30 Fed. Appx. 160, 163 64, 2002 U.S. App. LEXIS 3390 (4th Cir. 2002) (unpublished) (remanding to the district court where insurance company changed the reason for its denial of benefits during judicial appeal because allowing insurer "to raise a new basis for denial would deprive (the claimant] of the procedural fairness guaranteed to claimants under ERISA"). Also Glista v. Unum Life Ins. Co. of America, 378 F.3d 113, 130 (1st Cir. 2004) (remanding to the district court with instructions that the insurer be held to the reason articulated during its internal claims review process since the insurer "violated ERISA and its regulations by relying on a reason in court that had not been articulated to the claimant during its internal review").

Insurance companies don't make money if every insured knows their rights. Many insurance companies will deny benefits automatically, hoping that you won't question their decision. So many times, we have spoken to clients who are unsure if they can even appeal the decision. They are confused, because their disability is clear, and the doctor agrees they are unable to work.

The plaintiff, as the beneficiary of a plan, is entitled to bring a civil action to recover disability benefits if those benefits are due to him under the terms of the plan. 29 U.S.C. § 1132(a)(1)(B). This means that you are allowed to file a lawsuit if you have been denied benefits, but are entitled to them based on your plan and condition. This is important for you to understand. Whatever your insurance company says, even if they have denied you benefits and say you are fit to work, you need to explore your options with an experienced long-term disability attorney.

Not many attorneys work on long-term disability cases. Often, people confuse this practice area with social security disability. ERISA long-term disability applies to employer-provided or personally purchased long-term disability plans. The insurance companies are private companies, and they are motivated by their company's profit. Their goal is to pay out as few benefits as possible. If you don't hire an attorney, you may lose out on benefits that you are entitled to.

Many long-term disability plans and policies have a limit on the number of appeals you can file against them. Be sure not to waste your appeals. If your insurance company is fighting you, contact BenGlassLaw at (703) 584-7277.

Most people are surprised to hear that personal injury cases are heard by juries. That is why predicting the settlement amount is so difficult, because juries panels can be groups of very different people. Long-term disability cases, however, are not heard by juries. The amount of a settlement is not up to debate. If your long-term disability case is brought to court, only a judge will hear the case.

According to Virginia law:

Rule 56(c) provides for summary judgment if the court, viewing the record as a whole, determines “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Fed. R. Civ. P. Rule 56(c).  In deciding a motion for summary judgment, the court must view the facts and inferences to be drawn therefrom in the light most favorable to the non-moving party.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).  To defeat summary judgment, the non-moving party must go beyond the pleadings with affidavits, depositions, interrogatories, or other evidence to show that there is in fact a genuine issue for trial.  Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

What does this mean for your case? A judge will review the facts of your case, hearing the testimony of experts and other witnesses. They will review all the information submitted by the insurance company and by your attorney. Their decision will be based on your insurance policy, your health condition, and the informed opinion of medical professionals.

Once they have reviewed this information, they will issue a ruling.

To determine whether the administrator's decision was reasonable and based on substantial evidence, the Fourth Circuit has formulated a nonexhaustive list of eight factors that a court may consider. Booth v. Wal Mart Stores, Inc., 201 F.3d 335 (4th Cir. 2000). Those factors are:

1. The language of the plan;
2. The purpose and goals of the plan;
3. The adequacy of the materials considered to make the decision and the degree to which they support it;
4. Whether the decision-making process was recent and principled; 
5. Whether the decision comports with other provisions in the plan and with earlier interpretations of the plan;
6. Whether the decision was consistent with the procedural and substantive requirements of ERISA;
7. Any external standard relevant to the exercise of discretion; and
8. The administrator's motives or any conflicts of interest it may have.

The day that you stop working is an incredibly important factor in your long-term disability claim. To most people, this is a logical decision. You get your affairs in order, wrap up whatever big projects you have at work, give your notice, and stop working. Most people who end up filing long-term disability claims will also have the well-intentioned advice of their doctors, supervisors, co-workers, family, and friends.

But there is one more factor you need to remember when selecting your last day worked (or LDW). You'll ultimately have to justify this decision to your insurance company. When you file your claim, they will ask:

1. Why did you stop working that day when you worked eight hours the day before and forty hours the week before?
2. What does the medical evidence show? Is there any objective medical evidence that proves a change in condition between the LDW and the day, week, month, or a year before?

And even in cases where you've had a terrible, debilitating disease that you've been working through for years, the insurance company is going to say, "Fine, you've had that terrible, debilitating disease for years and everyone we know would have stopped working years ago, but you didn't... so why are you stopping now?"

It's up to you to make sure that the answers to all these questions and more can be found in your medical records BEFORE the date you file for disability. It doesn't matter that you're able to answer all of these questions. Why would you want to risk trying to fill in the blanks later, after your claim has been denied, when you can take care of those issues today.

Everyone has advice. Unfortunately, even though this advice is always well-intentioned, ERISA law is such a specialized area of the law that most of it are also ill-informed. This is true even when you're getting advice from other attorneys. Even very bright lawyers can lead their clients astray if they advise in the field of ERISA law without having practiced extensively in that field.

If you've talked to anyone about your long-term disability claim, you've probably heard one of these lines:

• If you write a reasonable letter to the insurance company, you will get a reasonable settlement proposal
• Filling out the Insurance Company's forms will get you your benefits
• If you have been received Social Security disability benefits, getting long-term disability benefits will be a cakewalk
• If the insurance company sends you an "activity log," its because they really want to know what you do day in and day out
• The best way to convince the insurance company that you can't work in a sedentary job is to write them a 40-page letter describing your medical condition and all of its details
• Any lawyer can help you with your ERISA long-term disability claim
• You should hold back your best evidence until the day of trial
• Your doctors will come to trial and testify for you, and you'll be able to convince the judge that you are disabled
• You will be allowed to testify when your case goes to trial
• If your doctor writes that you are "disabled," you will win your case
• The insurance company "appeals" process is fair and unbiased
• When you file a suit, the issue the judge has to decide is whether or not you are disabled
• The playing field is level between you and the insurance company
• If your employer says you're too disabled to work, the insurance company must pay out

None of this advice is true. This is why you need an attorney that has experience with ERISA long-term disability cases who can help you with your claim.

A: A claim for disability benefits under ERISA is governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 101 et seq. and is brought pursuant to the Civil Enforcement Provisions of that statute. See 29 U.S.C. § 1132(a)(1)(B). 

"A denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone and Rubber v. Bruch, 489 U.S. 101, 115 (1989). "It is well established that a court reviewing the denial of disability benefits under ERISA initially must decide whether a benefit plan's language grants the administrator or fiduciary discretion to determine the claimant's eligibility for benefits, and if so, whether the administrator acted within the scope of that discretion." Gallagher v. Reliance STD. Life Ins. Co., 305 F.3d 264, 268 (4th Cir. 2002). 

There are no specific words that must be included to preclude a de novo standard of review, but rather "[i]f the terms of a plan indicate a clear intention to delegate final authority to determine eligibility to the plan administrator, then [a] court will recognize discretionary authority by implication." 

"The plan's intention to confer discretion on the plan administrator or fiduciary, however, must be clear. If a plan does not clearly grant discretion, the standard of review is de novo." Gallagher, 305 F.3d at 268 69 (citation omitted). Under the abuse of discretion standard, a decision by an administrator will not be disturbed if it "is the result of a deliberate, principled reasoning process and if it is supported by substantial evidence." Bernstein v. CapitalCare, Inc., 70 F.3d 783, 787 (4th Cir. 1995). The Supreme Court has indicated that where "a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion." Firestone Tire, 489 U.S. at 115. In such a scenario, the court must review the merits of the interpretation to determine whether it is consistent with an exercise of discretion by a fiduciary acting free of the interests that conflict with those of the beneficiaries. In short, the fiduciary decision will be entitled to some deference, but this deference will be lessened to the degree necessary to neutralize any untoward influence resulting from the conflict.
Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 233 (4th Cir. 1997) 

Most every disability insurance contract does require you to file for social security disability if the insurance company asks you to. No matter which attorney you choose for the social security claim, you will be reimbursed by the disability company, so they are all "free" in that respect.

But here's the real problem. While the social security company representing you should be looking after your interests only, they often (most often--always, in my experience) are working aggressively to make sure the disability company is going to get its repayment of benefits. They'll have you sign a form, typically authorizing them to put their hands right into your checking account to grab money if you get your SSDI benefits. 

In my opinion, that's a major conflict of interest.

Here's another thing I've seen. Knowing that the long-term disability insurance company will pay minimal benefits if your disability is mental illness related, the "free" attorney recommended by the disability insurance company will work to make your SSDI claim a "mental" claim. That's good for your disability company and bad for you.

It is, in my opinion, always better to hire a good social security disability attorney who is local to you and who will look out for your best interests only.