Feb 1, 2012

Hiring a Colorado trial attorney who can recite the caps on non-economic damages by memory is not nearly as impressive as hiring an attorney who is aware of how to navigate around those caps. If a lawyer has a sound understanding of Colorado caps on damages, that same lawyer understands that an injury victim is often not limited by those caps. Does what I am saying sound a little different than the last lawyer you talked to? If yes, that's not surprising.

Simply stated, the caps that so many lawyers think limit their clients' compensation do not actually apply. Basically, if your attorney thinks like that, he or she has drunk the insurance industry Kool-Aid and are charging you a fee to get you less money, not more. Accordingly, be sure to thank them on your way out the door, with your file in your hand, on your way to hire your next attorney. It simply takes a resourceful and experienced attorney to know how to present damages from a personal injury case in a way that will avoid the limits imposed by caps.

Currently, non-economic damages in Colorado are capped at $468,010. Strange number, right? The statute originally limited damages to $250,000. However, the Colorado Legislature later modified that statute to include an interest rate kicker that is predetermined by the Colorado Secretary of State, which gets adjusted from time to time. As stated earlier, the cap is currently at $468,010 and this cap has not been adjusted since February 2008. For those of you who are unfamiliar with non-economic damages, these damages include pain, suffering, and emotional distress.

The good news is that most damages fit into other categories of damages that are NOT capped. For instance, hospital bills, wage loss, and future medical needs all fall under the category of economic damages, which in most cases, are not capped. Also, damages for permanent physical impairment or disfigurement are not usually capped either. In reality, much of what may at first appear to be non-economic damages can be presented to a jury as another type of damage that is not capped.

To successfully navigate around caps in Colorado and to ensure that clients get all the compensation that they are entitled to, the devil is truly in the details. When a client's damages are presented to the court, the key to navigating around caps is to understand the subtle nuance between an injury victim's claim of pain, without any collateral consequences, versus pain that results in permanent physical impairment. If a lawyer does not appreciate this subtle distinction, the value of a client's case can plummet.

Case 1: A 29 year old municipal employee sustains a neck strain in rear-end car crash. He misses no time from work and sees a chiropractor a total of 4 times. One month after the accident, he is released back to full duty with no restrictions and never feels any neck pain again.

Case 2: A 29 year old postal worker sustains testicular trauma in a motorcycle crash. He undergoes two years of treatment including 3 testicle surgeries. Eventually doctors release this patient to return to work. This patient continues to suffer frequent pain for the rest of his life.

Do these cases look like they should have the same value?

The attorney who tells you that your damages are capped at $468,010 will also tell you that in the eyes of the law, both of these cases are subject to this low non-economic cap. But that lawyer is not seeing the whole picture.

It is the job of your trial attorney to draw out the distinctions between Case 2 from Case 1 and argue that the ongoing "pain and suffering" suffered by the postal worker in Case 2 is more properly presented as permanent physical impairment damages, which is uncapped. The bottom line is that what may, at first blush, look like "pain and suffering" may actually be permanent physical impairment. The good news is that once you know what you are looking for in drawing that distinction, the rest is child's play.

Simply stated, you have probably never met anyone who was meaningfully injured who would be limited to the non-economic damages cap. Again, I realize that I may be the first attorney who has told you this. Anyone who does not fully recover from their injury and still suffers pain after their active treatment ends (which is nearly everyone) limits themselves, as a personal choice, from doing things that cause them enhanced pain.

Lingering pain causes men to refrain from yard work, gardening, woodworking, general house maintenance, bowling, softball, and other physical activities. Women suffering from pain might forego house work, elaborate cooking, long distance driving, and playing with their children. How can an attorney look at these types of physical limitations and not view them as permanent physical impairments? The answer is that if they truly understand how the caps work, they can't. But, if they do, they are misguided, inexperienced, or are working for the other side.

In fact, as long as your claims of pain and suffering are framed and presented correctly to the court, it is nearly impossible to argue that they are not permanent physical impairments that are not limited by Colorado caps on damages. A 1994 case from the Colorado Court of Appeals, Lawson v. Safeway, Inc., not only supports my prior statement, but also states that permanent injuries can be established at trial without expert witness testimony. Simply stated, the Colorado Court of Appeals recognized that a jury may infer that an injury is permanent if the injury has persisted for a number of years and that the pain will continue into the future.

Furthermore, the American Medical Association Guide to the Evaluation of Physical Impairment defines permanent physical impairment as an anatomical or functional abnormality after maximum rehabilitation has been achieved. By putting these two concepts together, an attorney can successfully argue that if a client's pain results in limitation of activity, as it nearly always does, it should be classified as a permanent physical impairment. Consequently, the jury would be free to award whatever it wants for that loss and their award would not be limited by any caps on non-economic damages.

If you are injured and seeking compensation, the value of your case can plummet significantly if you hire an attorney who does not understand how to properly navigate around the caps on damages in Colorado. At Anderson Hemmat, we understand how to properly navigate around the caps on damages to ensure that our clients are fully compensated for their injuries. Accordingly, if you have been injured and have questions about caps, please call and speak to one of our attorneys today.


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