Monday, December 10, 2012
Be Wary of Free Seminars Following Multiple Victim Accidents
There was a tragic accident on the Seward Highway North of Girdwood in which 11 persons were injured. See "Crash Near Girdwood Closes Seward Highway," http://www.adn.com/2012/12/09/2718960/crash-near-girdwood-closes-seward.html.
It is not unusual following an accident for accident victims to receive phone calls or mailings promising "no charge" health care or a "no charge" seminar on their rights. Accident victims should be wary of these solicitations. A multiple victim accident such as this will trigger many legal issues. These include:
1. An investigation of the facts (Most often provided by the Alaska Trooper Report)
2. An assessment of the available liability insurance coverage. With multiple victims, this insurance may be inadequate to compensate each victim individually.
3. An assessment whether any of the victims may be accused of bearing partial responsibility. Most often, this is directed to the driver of the vehicle.
4. An assessment of injuries.
5. An assessment of losses.
6. An assessment of other insurance coverages such as Underinsured Motorist.
While these are the legal issues, the most important issue is recovery from injuries, something that is addressed by a physician, not a lawyer. I recommend that accident victims make medical treatment their highest priority, even higher priority than meeting with my office. When life deals you a low card in the form of an accident, you have to play your hand smartly. See www.Junelawyer.com.
.
Monday, November 19, 2012
Workers Compensation Liens: The Client's Duty to Repay and the Employer's Future Credit
When a person suffers a work injury, he receives workers' compensation benefits. These include both payment of medical benefits as well as payments of Disability Benefits. Over time, there may be other benefits such as partial impairment benefits and vocational retraining benefits.
When the work injury is caused by someone other than the employer, the worker has a "third party claim."
Should the worker be successful in recovering his losses from this party, the worker has 3 duties to his employer and its workers' compensation insurer.
1. The worker must obtain the employer's consent to settlement. If the worker fails to do this, the employer is no longer responsible for paying workers' compensation benefits. This is true even if the "settlement" means the worker is giving up on his case.
2. The worker must pay back any worker's compensation benefits.
3. If the worker is able to recover more than he has received in workers's compensation benefits, the remaining amounts serve as a credit against future workers' compensation benefits.
While actual results depend on the facts of the specific case, a lawyer can negotiate a reduction of the worker's compensation "pay back." At a minimum, the workers' compensation insurer must pay the pro rata share of any legal fees incurred to recover the pay back amounts. Beyond this, a workers' compensation insurer may be willing to further reduce the pay back if the injured worker is willing to agree not to receive further workers' compensation benefits.
While one cannot predict the result in all cases, you have to play your hand smartly. See www.Junelawyer.com.
When the work injury is caused by someone other than the employer, the worker has a "third party claim."
Should the worker be successful in recovering his losses from this party, the worker has 3 duties to his employer and its workers' compensation insurer.
1. The worker must obtain the employer's consent to settlement. If the worker fails to do this, the employer is no longer responsible for paying workers' compensation benefits. This is true even if the "settlement" means the worker is giving up on his case.
2. The worker must pay back any worker's compensation benefits.
3. If the worker is able to recover more than he has received in workers's compensation benefits, the remaining amounts serve as a credit against future workers' compensation benefits.
While actual results depend on the facts of the specific case, a lawyer can negotiate a reduction of the worker's compensation "pay back." At a minimum, the workers' compensation insurer must pay the pro rata share of any legal fees incurred to recover the pay back amounts. Beyond this, a workers' compensation insurer may be willing to further reduce the pay back if the injured worker is willing to agree not to receive further workers' compensation benefits.
While one cannot predict the result in all cases, you have to play your hand smartly. See www.Junelawyer.com.
Tuesday, November 6, 2012
Motorcycle Fatality Due to Improper Conduct by State of Alaska DOT
Last week, I was able to successfully negotiate the settlement of a motorcycle fatality case against the State of Alaska, Department of Transportation ("DOT"). The basis of DOT responsibility was DOT workers' failure to clean up after asphalt repair with the result being that the motorcyclist lost control of his bike on small pieces of gravel entering a sharp curve.
Clients often ask about what makes a case strong and what makes a case weak. Here are what I considered to be some of the keys to success in this case.
1. Photographic confirmation of asphalt repair work (DOT workers could not remember what work they did except in the most general terms)
2. Neutral witness confirmation of hazardous road conditions specifically on the day and time of the accident.(DOT workers simply denied they would ever do shoddy work)
3. Photographic and record corroboration of neutral witness testimony. (In this case, one witness actually called DOT to complain and there was a record confirming the phone call).
4. The deceased having a clean traffic citation history so as to rebut accusations of reckless driving. (Rightly or wrongly, there is a stereotype of motorcylists).
5. The deceased driving a touring motorcycle while wearing helmet and leathers.
6. Advising the clients how the case could be lost despite strong facts. One consideration in this case is that a jury deciding a claim against a government entity appreciates that the verdict will be paid from tax dollars. Just as a popular television commercial says "Its our Oil!" the jury will be saying "Its our Money."
The motorcyclists family were deserving clients and I was happy that I could help them. In my opinion, they played their hand smartly.
Clients often ask about what makes a case strong and what makes a case weak. Here are what I considered to be some of the keys to success in this case.
1. Photographic confirmation of asphalt repair work (DOT workers could not remember what work they did except in the most general terms)
2. Neutral witness confirmation of hazardous road conditions specifically on the day and time of the accident.(DOT workers simply denied they would ever do shoddy work)
3. Photographic and record corroboration of neutral witness testimony. (In this case, one witness actually called DOT to complain and there was a record confirming the phone call).
4. The deceased having a clean traffic citation history so as to rebut accusations of reckless driving. (Rightly or wrongly, there is a stereotype of motorcylists).
5. The deceased driving a touring motorcycle while wearing helmet and leathers.
6. Advising the clients how the case could be lost despite strong facts. One consideration in this case is that a jury deciding a claim against a government entity appreciates that the verdict will be paid from tax dollars. Just as a popular television commercial says "Its our Oil!" the jury will be saying "Its our Money."
The motorcyclists family were deserving clients and I was happy that I could help them. In my opinion, they played their hand smartly.
Monday, October 1, 2012
The Result of A Successful Appeal: Retrial
Last week, the Alaska Supreme Court Opinion in my Case, Thompson v. Central Plumbing was issued.
The Supreme Court held that the Trial Court had made a mistake in not allowing my client's doctors to testify that his serious injury was caused by a T-Bone collision and that the Trial Court had made an additional mistake in not instructing the jury that the negligent driver was also responsible for any medical mistakes that the defense doctor testified was the alternate explanation for the client's injuries. As a result of not being allowed to hear relevant evidence and to be properly instructed on the law, the jury, returned an unfair verdict.
Clients sometimes misunderstand what it means to "win" on appeal. In this case, the "win" does not mean that my client will soon be paid a fair amount for his injuries. Instead, it means that the first trial is considered to be a "mulligan" and that there is a "do-over" of the trial with respect to damages. This client's case has been a long journey with the appeal, alone, taking 2 years of time. Now, he is waiting for a second trial, free from the mistakes of the first trial, which most likely will be scheduled within the next year.
It is the long wait that requires clients to play their hand smartly. However, sometimes they have no choice but to pursue their remedies to the end. See www.Junelawyer.com
The Supreme Court held that the Trial Court had made a mistake in not allowing my client's doctors to testify that his serious injury was caused by a T-Bone collision and that the Trial Court had made an additional mistake in not instructing the jury that the negligent driver was also responsible for any medical mistakes that the defense doctor testified was the alternate explanation for the client's injuries. As a result of not being allowed to hear relevant evidence and to be properly instructed on the law, the jury, returned an unfair verdict.
Clients sometimes misunderstand what it means to "win" on appeal. In this case, the "win" does not mean that my client will soon be paid a fair amount for his injuries. Instead, it means that the first trial is considered to be a "mulligan" and that there is a "do-over" of the trial with respect to damages. This client's case has been a long journey with the appeal, alone, taking 2 years of time. Now, he is waiting for a second trial, free from the mistakes of the first trial, which most likely will be scheduled within the next year.
It is the long wait that requires clients to play their hand smartly. However, sometimes they have no choice but to pursue their remedies to the end. See www.Junelawyer.com
Monday, September 17, 2012
How Legal Consultation is Helpful
This weekend's Anchorage Daily News contained an article about a young man involved in a serious motor vehicle accident that resulted in catastrophic injuries in a situation in which the responsible driver most likely had minimal insurance. See http://community.adn.com/adn/node/162381 In cases in which the responsible driver has inadequate insurance, clients ask what possible help a lawyer can be. Here are some of the steps a lawyer will take to try and help the injured person.
1. Investigate the existence of other Insurance policies that could potentially provide coverage for the injuries and losses.
2. Recover the available insurance of the responsible driver.
3. Investigate the potential responsibilities of persons other than the driver.
4. Assist in filing an Underinsured/Uninsured Motorist Claim under the insurance of the injured person..
5. Investigate the possibility of additional Underinsured/Uninsured Motorist insurance coverage.
6. Negotiate discounts and forgiveness of liens of medical providers, health insurers, Medicare and Medicaid.
Of course, depending on the specific facts, there may be other issues. In catastrophic accidents, it is even more important to play your hand smartly. See www.Junelawyer.com
1. Investigate the existence of other Insurance policies that could potentially provide coverage for the injuries and losses.
2. Recover the available insurance of the responsible driver.
3. Investigate the potential responsibilities of persons other than the driver.
4. Assist in filing an Underinsured/Uninsured Motorist Claim under the insurance of the injured person..
5. Investigate the possibility of additional Underinsured/Uninsured Motorist insurance coverage.
6. Negotiate discounts and forgiveness of liens of medical providers, health insurers, Medicare and Medicaid.
Of course, depending on the specific facts, there may be other issues. In catastrophic accidents, it is even more important to play your hand smartly. See www.Junelawyer.com
Tuesday, September 11, 2012
The Predictability of "Independent" Medical Examinations Requested by Insurers
Idealists believe that litigation is about the search for truth. The reality can be very different.
I just received the report of a supposedly independent medical examination performed by a physician routinely requested by insurers and defense counsel. This particular physicians is a part owner of the agency that schedules the medical examinations and earns approximately $200,000 annually above and beyond the income of his active medical practice for performing these examinations and preparing these reports.
My client was injured in a motor vehicle accident and, while she largely recovered, has had some ongoing specific pain issues. The physician's conclusion was that she had experienced a cervical strain that healed within 3 months.
I see this conclusion regularly from physicians regularly doing business for insurance companies. It always raises questions in my mind as to whether the physician has ever seen or experienced a patient with pain issues more than 3 months following an accident and, if so, whether the physician tells the patient that his injuries are healed, and, whether the physician continues to provide treatment for this imaginary injury.
With respect to this particular physician, he is noteworthy for a survey of his examinations of workers' compensation claimants in which out of 20 claimants, he disagreed with the treating physician 19 times. Sometimes you see a pattern.
You have to play your cards smartly. See www.Junelawyer.com
I just received the report of a supposedly independent medical examination performed by a physician routinely requested by insurers and defense counsel. This particular physicians is a part owner of the agency that schedules the medical examinations and earns approximately $200,000 annually above and beyond the income of his active medical practice for performing these examinations and preparing these reports.
My client was injured in a motor vehicle accident and, while she largely recovered, has had some ongoing specific pain issues. The physician's conclusion was that she had experienced a cervical strain that healed within 3 months.
I see this conclusion regularly from physicians regularly doing business for insurance companies. It always raises questions in my mind as to whether the physician has ever seen or experienced a patient with pain issues more than 3 months following an accident and, if so, whether the physician tells the patient that his injuries are healed, and, whether the physician continues to provide treatment for this imaginary injury.
With respect to this particular physician, he is noteworthy for a survey of his examinations of workers' compensation claimants in which out of 20 claimants, he disagreed with the treating physician 19 times. Sometimes you see a pattern.
You have to play your cards smartly. See www.Junelawyer.com
Thursday, August 23, 2012
Helicopter Accident Shows Wisdom of Legal Consultation
A tragic helicopter accident near the Pogo mine which resulted in the death of the pilot shows the wisdom of consulting a lawyer. See http://www.alaskadispatch.com/section/alaska-beat#alaska-beat-253671. The Preliminary Investigation suggests that one of the causes of the accident was a defective helipad.
Because of it being a work accident, Alaska law provides a minimal safety net through workers' compensation benefits, a benefit which precludes the pilot's family from bringing a loss claim against the pilot's employer or the Pogo mine owner. However, if the helipad was constructed by a subcontractor, the family may have the ability to pursue a claim for full recovery. In advising the family a lawyer would investigate the contractual relationships of the parties.
You have to know your hand in order to play your cards smart. See www.junelawyer.com
Because of it being a work accident, Alaska law provides a minimal safety net through workers' compensation benefits, a benefit which precludes the pilot's family from bringing a loss claim against the pilot's employer or the Pogo mine owner. However, if the helipad was constructed by a subcontractor, the family may have the ability to pursue a claim for full recovery. In advising the family a lawyer would investigate the contractual relationships of the parties.
You have to know your hand in order to play your cards smart. See www.junelawyer.com
Subscribe to:
Posts (Atom)