Alabama Personal Injury Blog - Compensation

Won Your Workers Compensation Case? Not so Fast

Jon Lewis — Tue, 24 Nov 2009 13:02:11 GMT

What are the insurance companies doing now? They are using "Utilization Review" in order to cut off workers compensation benefits. How does that work?

Well, the Alabama Workers Compensation Act allows for "Utilization Review". That means that the workers compensation insurance carrier can submit your medical records to a third party physician to review and determine if they are related to the injury. If that third party physician says, "No", the workers compensation carrier cuts off the injured employee's benefits.

How does this work in practice? Take my client for example. She had surgery approximately ten (10) years ago. Her workers compensation case was settled, and her medical was left open for future treatment. Typically, that is what happens in workers compensation cases. The person receives medical treatment for the related injuries for the rest of her life.

For ten (10) years, my client has been receiving prescriptions and medical treatment for her injuries. Out of the blue, the insurance carrier sends her records to a foreign doctor in El Paso, Texas who opines that her injuries and medical treatment are not related. So, the insurance carrier, under the "utilization review" provision, cuts off her medical treatment.

Why did they wait ten (10) years? How can this doctor supersede my client's local doctor's opinion when he hasn't even examined her. Shouldn't the "Authorized treating" physician have the final say? The insurance carrier approved her "Authorized Treating" Physician.

This is ridiculous and unfair, but that is how the insurance industry works. Insurance covers everything but the loss. All they want is their money and to hell with everything else - morals, humanity, sympathy, kindness, and generosity. It is all about the bottom line. People talk about "greedy trial attorneys" when they should be talking about "greedy insurance companies".

Originally posted at InjuryBoard by Jon Lewis

Alabama Workers Compensation - Disadvantaged Employees

Jon Lewis — Wed, 30 Sep 2009 13:28:21 GMT

We are in the process of representing an individual who was seriously injured on the job. He has had two back surgeries, and he is 72 years of age. He has been deemed 100% disabled, and we are trying to resolve his case. There is no question about whether or not his employer is responsible for compensating him under the Alabama Workers Compensation Act, so what is the issue?

Well, in Alabama, the employer (really, the employer's insurance company) can try to settle the case or force you to go to court to prove your case. If the insurance company settles your case, they typically pay the settlement in a lump sum amount. If you try the case to a verdict and win, the insurance company can choose to pay the employee weekly or in a lump sum. Usually, they will choose the weekly option because they will benefit if the employee dies before the payout is complete.

What about our situation? What would our client be entitled to in a lump sum? Approximately $170,000.00. What has the insurance company offered? $85,000.00. Why? Money. It is all about the bottom line for the insurance company, and they understand that we, as the employee's attorney, have no leverage to force them to do otherwise.

Why would our client accept a lump sum for less than $170,000? Several reasons. First, he can get a lump sum and know what he has. Second, if he were to die, he knows that his wife will receive something; whereas, if he died during the weekly payments, the payments stop immediately. Third, he doesn't have to try his case to a judge (you cannot get a jury in a workers comp case) and risk the judge thinking he's less than 100% disabled which would dramatically reduce his compensation. Finally, he can incorporate language for Social Security Disability which minimizes the effect on any set off Social Security would get if he received weekly payments.

Why wouldn't the insurance company pay the full value of the lump sum? They have no incentive. They have nothing to lose. If they don't pay it, what happens? They hire an attorney to defend the case. If the attorney wins or gets less than 100% disability, they don't have to pay as much. If they lose the case, they only have to pay the weekly benefits, and if our client were to die, they win. The only way the insurance company loses is if our client lives beyond his life expectancy, and the insurance company has to keep paying his weekly benefits. That is how the insurance company evaluates the claim: what is the likelihood that our client will live beyond his life expectancy. In their mind, our client is just another number, not a human being who is going to have a difficult time supporting his family because of his injury.

There should be some consequence to the insurance company and employer if they force the employee to try the case to a verdict, and the employee wins - at least in a 100% disability case. These types of cases are serious, and the individuals who have been injured have very little recourse and will have a difficult time the rest of their lives. This is their only chance at compensation, and the insurance companies hold their feet to the fire. It is time the employees could fight back and not be forced into settlement situations.

What do you think?

Originally posted at InjuryBoard by Jon Lewis

Injuered at work? Now what?

Danny Lehane — Tue, 28 Jul 2009 14:06:17 GMT

When an individual is injured or suffers an illness arising out of and in the course his/her employment, that individual has certain rights provided to her/him under the Alabama Workers’ Compensation Act (also referred to as “the Act”). The Act provides for medical care, surgery, and rehabilitation as well as Temporary Total Disability (TTD) benefits. TTD benefits are compensation based on a percentage of the injured worker’s wage. The TTD benefits provide compensation for an individual that is determined to be unable to return to work to earn wages.

An injured worker is required to report the injury as soon as possible and no later than in writing within five (5) days. Obviously there are exceptions (such as a catastrophic injury within a plant that is witnessed and where management makes the 911 call). However, if the injured worker is able it is best to be sure to give notice of the injury and request that a First Report of Injury is completed. Typically a worker is sent to the employer’s company doctor. If the injuries are severe the worker is sent to an ER.

An injured worker has the right to request a panel in which to choose a different treating physician if he or she is not satisfied with the current treating doctor. However, it should be noted that the request for a panel is a one-time event and the request should be used only as a last resort. If a worker elects to use his/her own physician without approval of the employer (or work comp insurance carrier) that worker may find that the treatments are not paid for by the work comp carrier or his/her health insurance carrier. Injured workers are reminded to be very careful when electing to use their own physician as the results may be harsh on several fronts.

Originally posted at InjuryBoard by Danny Lehane

Workers’ Compensation and Third Party Claims

Jason Knowles — Fri, 24 Jul 2009 13:45:35 GMT

Workers’ compensation statutes are designed to require employers to compensate employees who are injured while working in the line and scope of their employment, regardless of whether the employer is at fault. Many employees are surprised to learn, however, that workers’ compensation benefits are not intended to make the employee whole.

Although workers’ compensation statutes vary among the states, they are basically similar with respect to benefits available to injured employees. Medical benefits are provided for life, although the insurer controls in large part where and under what circumstances the medical care is provided. While the employee is out of work due to their injury, they are only paid 2/3 of their normal wages. Compensation for permanent injuries are capped at 300 weeks unless the employee is totally and permanently disabled. Workers’ compensation statutes do not provide benefits for past or future pain and suffering, past or future mental or emotional distress, loss of enjoyment of life, and punitive damages are not available.

Therefore, given the shortcomings of workers’ compensation benefits, it is extremely important for injured workers, with the assistance of an attorney, to evaluate work-related claims to determine if a third-party (someone other than the employer) may be liable to the employee. For example, a third party claim may be available against the designer, manufacturer, seller and/or assembler of a defective machine or equipment that injured or killed the employee. Or a claim may be available against a third party whose negligence caused the employee’s injury or death. In these situations, pain and suffering, mental anguish, loss of enjoyment of life, lost income and punitive damages are recoverable.

When employees are injured on the job, they and their lawyers should examine the facts and circumstances to determine if third party claims are viable. Such an analysis could make a huge financial difference in the recovery.

Originally posted at InjuryBoard by Jason Knowles

What Is A Statute Of Limitations?

Michael Roberts — Mon, 13 Jul 2009 16:33:53 GMT

If you might have to file a lawsuit on any type of claim, whether it involves an injury from an accident, or a debt that someone owes you, it is very important to be mindful that there are deadlines for filing of a lawsuit.

Each state has a different set of rules, and there are many different deadlines, depending on the type of case. For example, in Alabama, the deadline for filing a negligence claim is generally two years from the date of the accident on which the negligence claim is based. A claim for breach of contract, however, is generally longer. There are rare exceptions that can sometimes apply to change the deadlines imposed by statutes of limitations. For example, sometimes a minor child will have a longer period of time in which to file a suit than an adult.

When a governmental entity, such as a city or county is involved, there can be deadlines which are even shorter than the statute of limitations. For example, in Alabama, a verified claim must be filed with the city clerk within six months from the date the claim arises (which generally would be the time of the accident, if it is an accident case), and a claim against a county must be filed with the county commission within one year.

In Alabama, a suit for worker’s compensation benefits must be filed within two years from the date of the accident, although there can be an extension if the employer or the worker’s compensation insurance company makes payment of compensation benefits after the accident.

There are also certain situations where there are statutes of “repose” or rules of “repose” which can create other, and different deadlines, some of which operate very harshly upon the rights of someone who is injured because of a condition created a long time earlier.

Because of the complexity of the rules and exceptions dealing with statutes of limitations, claims requirements, and other laws, anyone who may have to file a lawsuit should obtain legal advice as early as possible. For further discussion of Alabama’s statutes of limitations, see Alabama Tort Law, 4th Edition, Chapter 46.

Originally posted at InjuryBoard by Michael Roberts

Injured Employees Should Look for Third Party Liability in Work-Related Accidents

Jason Knowles — Wed, 01 Jul 2009 16:36:44 GMT

A worker who is injured in an on-the-job accident can file a claim for workers’ compensation benefits but typically, at least in Alabama, the recovery in that sort of claim is woefully inadequate to compensate an injured worker. Workers should therefore be aware that a third party, other than the employer, may be responsible for the worker’s injury, in which case the recovery is often greater.

When an injured worker comes to our firm, we fully investigate the cause of injury to determine if a third party was responsible for the worker’s injury. Often we discover that a defective machine, for example, was the cause of the injury. Often, injury-causing machines are defective in that that they are not properly designed to eliminate or prevent hazards or they are not equipped with proper warnings about the hazard. Sometimes a third party is liable when, for example, their employee caused the accident and resulting injuries, such as in a two vehicle crash. Many other types of negligence by third-parties may give the injured worker a cause of action.

So, workers injured on the job should be aware that they have options which may significantly aid them above and beyond the workers’ compensation laws.

Originally posted at InjuryBoard by Jason Knowles

Wyoming Looks To Improve Worker Safety

Pete Mackey — Tue, 21 Apr 2009 08:00:00 GMT

Wyoming lawmakers are taking steps to improve on the state’s abysmal work safety record. Wyoming had more work place fatalities per 100,000 workers than any other state in 2007. To Governor Freudenthal’s credit, he has formed a task force to address the issue and come up with proposals for improvement. In doing so, that task force will look to Alaska:

Members of the Wyoming task force say they will look to Alaska's safety reforms as a possible model. Alaska, also a sparsely populated state with numerous dangerous occupations, reduced workplace fatalities by about 50 percent over the last 10 years.

Alaska achieved better workplace safety through an analysis industry-specific problems and cooperation from industry and special-interest groups, said Dr. George Conway, director of Alaska's office of the National Institute for Occupational Safety and Health.

This is welcome news. Worker safety is often compromised by industry demands and a state’s unwillingness or inability to fund the proper regulatory agencies. Let’s hope more states follow Wyoming’s lead.

Originally posted at InjuryBoard by Pete Mackey

Alabama Unemployment Compensation Benefits - Look Before You Leap

Pete Mackey — Sat, 21 Feb 2009 08:00:00 GMT

In recent cases, the Alabama Supreme Court has held that an unemployment compensation (UC) agency hearing officer’s ruling can have a preclusive effect on the claims and defenses of both employees and employers in subsequent litigation. Let me explain this with an example. Jane Smith is fired from her job at company X. She applies for UC and goes to her hearing. She says that they fired her because she refused to put up with her boss’s sexual harassment. Company X says that she was fired because she was missing too much time from work.

The UC hearing officer agrees with the company and denies her compensation request. Because Jane has quickly gotten another job, and because it was not a lot of money to start with, Jane moves on with her life and forgets about the UC. She does not forget about the sexual harassment and hires a lawyer who takes her through the EEOC process and then files a lawsuit in federal court. After interviewing witnesses and reviewing documents, her lawyer tells Jane that she has the best sexual harassment lawsuit that she has ever seen. The next thing both of them know, Jane has been thrown out of court. The reason – the UC hearing officer’s ruling had a final and preclusive effect on her claim for sexual harassment. Had the story been reversed, the employer may have no defense to Jane’s sexual harassment lawsuit.

This seems like, and is, an awfully unfair result. Most workers, and many employers, go to these hearings without attorneys and have no idea how much impact the UC hearing finding can have on other claims. If you are the employee, you are forced to choose between giving up UC benefits or risking your ability to seek relief for unlawful conduct by your employer. If you are the employer, you risk having the employee use a favorable decision against you in a later lawsuit.

Over the past year, Alabama lawyers for both employees and employers have been quietly working together to come up with a bill that would resolve this problem. Their plan is a simple amendment to the UC statute that would limit the preclusive affect of the UC decision to the UC matter only. Hopefully, their effort will become law this year.

In the mean time, if you find yourself out of a job, you have a decision to make. If you need UC benefits to put food on the table for your family, that is that. Just be aware that an unfavorable result will not only deprive you of UC benefits, it may also deprive you of any claim for unlawful conduct by your employer – unlawful discrimination, retaliation for filing a worker’s compensation claim or violations of any number of federal laws intended to protect workers. The following tips may be helpful:

· If you are fired and you believe that you are the victim of unlawful conduct by your employer, contact an attorney immediately.
· Visit your local unemployment office and be very clear on all deadlines that need to me for filing for UC benefits.

· Keep your lawyer in the loop. If you are going to be pursuing UC benefits, your lawyer needs to know. He or she may well be willing to accompany you to the hearing.

· If you lose your UC hearing at any level, appeal it as long as you legally have the right to do so. Perhaps an appellate panel or court will overturn your loss. Perhaps the company will give up. Just don’t do the employer a favor by not following through.

Originally posted at InjuryBoard by Pete Mackey

AIG - Workers Compensation - The Bailout

Jon Lewis — Thu, 08 Jan 2009 13:24:55 GMT

Well, I have just seen first hand what the bailout has done for AIG: made them even more heartless and cold than ever before. We represent a family who lives in Mexico. Their son was employed by a company in Atlanta, and he was killed on the job. The company is insured by AIG, and it is a clear liability case. What is AIG's response?

First, they made this man's parents travel across Mexico, obtain a special permit to enter our country, and come to Atlanta to give a deposition with a translator. They do not speak English. These individuals live in a two bedroom, aluminum house with 8 family members. We cannot imagine the life they live.

They cried at their deposition over the loss of their son. This was VERY emotional for them. They went back to Mexico, and the defense attorney and I discussed the possibiliity of settling the case.

I learned today that AIG is not interested in settling this case because they want to make it hard on this family. They know how difficult it is for them to travel back to this country, and they know it's difficult to get them back into this country. It's a foregone conclusion that the case will be won, but AIG doesn't care. They want to hold on to their money until the last possible date.

So, not only does AIG know the case is a loser from their standpoint, but they want to make it difficult on a very poor family in Mexico who just lost their son while he was working hard for AIG's insured. Furthermore, AIG knows that they have nothing to lose by doing this because the worst that can happen is they pay what they should pay anyway. The Judge cannot rule that they owe more than what the workers compensation statute says they owe so what do they care.

I ask you the following questions:

1. Is this right?
2. Is this humane?
3. Should AIG be punished for taking this stance?
4. Should AIG's insured have to endure further litigation because AIG wants to hold onto its money?
5. Should my client's family be made to suffer further?
6. Should they have to spend more money to come back to this country?
7. How should our system handle these situations?

The next time you hear about trial attorneys and tort reform, think about this case. It is insurance companies that drag out litigation and increase costs. It is insurance companies that turn down fair settlement offers and make their insured's go through the litigation process. It is insurance companies that make us take doctor depositions. AND, it is insurance companies that blame everything on the trial lawyers of America.

Isn't it time someone started holding these insurance companies accountable? AIG received billions of dollars of our tax money, and yet, this is how they treat human beings while they go to their spas and on their English hunting trips. It is time for these companies and the individuals operating them who have fleeced America to start paying the price.

Originally posted at InjuryBoard by Jon Lewis

Put Your Money Where Your Mouth Is

Jon Lewis — Sat, 09 Aug 2008 13:10:08 GMT

In today's Birmingham News, there were two letters to the editor. One is entitled, "Follow basic driving rules", and the other is, "Be courteous when driving". Each article discusses driving and safety. Examples: driving the speed limit, don't tailgate, keep your lights on in the rain, don't use your cell phone, and use your turn signals.

What are these individuals really saying? Don't drive negligently. What does that mean? It means that when you drive on the public roadways, you have a duty to others to abide by the rules of the road and to pay attention and not cause "accidents" (it's in quotes because had the person who caused the "accident" been paying attention, the "accident" wouldn't have happened). When you breach that duty, you are responsible for the damages you cause.

Because so many people fail to drive responsibly, we carry insurance on our cars. That way, when we cause these collisions (more proper term than "accidents"), we can afford to compensate the victim who was driving responsibly.

Unfortunately, people like the ones who wrote the letters to the editor don't put their money where their mouth is. When these people sit on juries, they seem to forget these "Basic Driving Rules." That is the way citizens can enforce these driving rules. When jurors render low verdicts, they don't send a message to the public that when you fail to pay attention while you are driving, you will pay a price. Money talks, and people will start to listen if jurors will realize they have the power to affect change.

When people realize that they will be responsible for SIGNIFICANT damages if they cause accidents, they will drive more carefully. When they realize that their insurance rates will increase, they will drive more carefully. As it stands, however, jury verdicts are low. These same people who preach driving safety, do not act accordingly. Next time you sit on a jury in a car "accident" case, put your money where your mouth is, and tell the person, "You need to drive more carefully."

Originally posted at InjuryBoard by Jon Lewis