Alabama Personal Injury Blog - Workplace Injuries

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

Disturbing High Court Ruling in Asbestos Case

Jason Knowles — Thu, 16 Jul 2009 14:38:30 GMT

The U. S. Supreme Court has recently ruled that a Tennessee railroad worker is not entitled to the $5 million awarded him by a jury for his long-term exposure to asbestos. In CSX Transp., Inc. v. Hensley, 129 S.Ct. 2139 (2009), the High Court ruled against Thurston Hensley, who sued his employer, CSX, under the Federal Employers’ Liability Act (FELA) for monetary damages based in part on his fear of developing cancer in the future. Hensley suffered from brain damage and the lung disease asbestosis. At trial, Hensley sought pain and suffering damages that included fear of developing lung cancer.

The trial judge refused to submit jury instructions proposed by CSX that would have required jurors to find the fear was “genuine and serious” and outlining standards of proof established in the Supreme Court decision, Norfolk & Western R. Co v. Ayers, 123 S.Ct. 1210 (2003). In a 7-2 ruling, the Supreme Court sided with CSX, saying the trial judge erred in delivering the jury instructions. The Court stated: “Although plaintiffs can seek fear-of-cancer damages in some FELA cases, they must satisfy a high standard in order to obtain them”. Hensley, at 2141.

Thus, it appears that a majority of the Court has gone much farther in its requirements of proof than Congress intended. Hopefully, this issue will be revisited by the Court.

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

How to help your body heal after an accident (part I)

Beth Scherer — Mon, 18 May 2009 12:45:09 GMT

Automobile accidents typically cause people a lot of emotional & physical stress. In my 18 years of chiropractic practice, I have found that when people focus on 4 areas of health, they are able to substantially reduce the stress of the auto accident. Today, I would like to focus on one area: Nutrition.

It is always important to fuel your body with proper food because the healthier you fuel your body, the better it will work for you. You do not give your car lemonade - correct? This is especially true after an automobile accident - when joints and muscles become sore and when a person has to handle the emotional stress of dealing with all the details of fixing the car, getting a rental vehicle, dealing with the insurance company, etc.... Focusing on better nutrition will enable the body to better adapt to both the physical and emotional stress of the accident.

The following are some nutritional guidelines:

1. Increase your water intake - remember that coffee is not water, soda is not water. just drink water. The rule is to take your body weight, divide by 1/2 and that is the amount of ounces of water you should be drinking per day. Aim for that goal even if you cannot reach it. Drining water is crucial to flush toxins out of your system and keep your muscles and joints hydrated. Avoid dehydrating fluids like soft drinks, coffee, ice tea, alcohol, etc....

2. Increase your protein intake - try to eat more protein - fish, chicken, lean meat, nuts, beans, milk, yogurt are some examples.

3. Decrease sugars, breads, and processed foods.

4. Increase fresh fruits and veggies.

5. Take supplements - a good multi vitamin is a start. Omegas are important for healing. If you have joint problems - glucosamine/chondroitin, MSM is a good supplement to take. Just make sure to speak with your primary physician before beginning any regimin to make sure that it does not interact with any medications you are taking.

6. Try to eat 5-6 little meals per day instead of 3 large meals. When a person is under a lot of stress, the digestive system does not work as well. Eating smaller meals will help the body digest better.

Taking these steps is one way to help your body resist stress while optimizing your health.

Originally posted at InjuryBoard by Beth Scherer

Tort Reform: What's in a Name?

Pete Burns — Tue, 05 May 2009 18:04:50 GMT

The change the "reformers" want to persuade the American people to enact is to abandon the Constitutional protection of a righ to trial by jury. Rather than allow a group of 12 disinterested citizens to resolve a fact situation and apply justice for that particular case the insurance, tobacco and pharmaceutical industries want to limit the amount that they will have to pay regardless of the damage they cause. To do this they must convince voters that the present system is broken and that common people are unable to recognize justice. Don't be fooled.

Originally posted at InjuryBoard by Pete Burns

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