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Three Questions To Win Your Wrongly Denied Workers’ Compensation Benefits

It’s probably a safe assumption to say that most people don’t like their jobs.  You have to get up early, you have to wade through endless traffic just to get there, and then once you’re there you have to ACTUALLY do your job.  Hmm . . . it’s probably safe to say that most people don’t like working in general.  But it’s just one of those necessary and unavoidable evils in life that you have to grit your teeth and bear through.  That or, you know, just be homeless.  And that, in essence, is the reason we all work: to make money.  Because the only thing that sucks more that working is being broke.  Well, actually there’s another thing that can suck more than being poor, and that’s being this guy.

Not getting your workers’ compensation paid out by your company’s insurance carrier when you’ve been injured on the job is a nightmare that I wouldn’t wish on my worst enemy.  So I can’t imagine what it was like for Mark Lindquist (linked above) when he was literally impaled by a piece of metal and his company’s carrier, Accident Fund Insurance, refused to pay his medical bill.

Lindquist was a social worker who was caring for his three mentally challenged adult clients when a tornado hit his town in Joplin, MO.  Rather than flee, Lindquist did his duty as a social worker and followed his company’s policy by trying to take his clients to safety.  But he was stopped by a flying piece of metal through his chest and knocked unconscious.  Lindquist’s clients unfortunately died, but Lindquist himself was found buried in rubble by rescue workers and brought in for emergency care.

When he miraculously awoke he learned that he had been in a coma for two months, broken all his ribs and most of his teeth, and had rung up a $2.5 million hospital tab.  Accident Fund Insurance rewarded Lindquist’s valor by denying his benefits, claiming that he was in no greater danger than the general public and therefore didn’t deserved to be covered.

Don’t worry though, Lindquist’s story actually has a happy ending, or at least as happy as it can be considering Lindquist now suffers from memory and motor function loss, as well as the trauma of not being able to save his clients.  Accident Fund Insurance reversed their harsh stance after just one day of media scrutiny and decided to give him the full coverage he was due; but of course they did so without admitting any wrong doing.

But to me, the most ridiculous/scary part of this story isn’t necessarily what happened to Lindquist (as terrible as it was), but rather the fact that his story of workers’ compensation woe isn’t a rare or uncommon occurrence.  Carriers deny their legitimate coverage responsibility to customers all the time.

So what should you do if you find yourself in shoes similar to Lindquist?  Well, if your employer’s workers’ compensation carrier denies your benefits, you have some options to make them correct their mistake.  All you have to do is first ask yourself the following three questions:

1)      Is your injury one that is actually covered by workers’ compensation?

The first thing you need to ask yourself is whether the harm you’ve suffered is actually covered by your WC plan or by state law.  This is an important step in determining whether you were wrongly denied coverage, as an injury that doesn’t fall under this umbrella would obviously leave you without a leg to stand on, so to speak.

The extent of workers’ compensation coverage and laws can vary from state to state and company to company, but there are a few constants that you generally can rely on in figuring out your own eligibility.  Traditionally, injuries that occurred as a result of or in the course of conducting one’s employment duties are always covered by workers’ compensation insurance.  Some examples include: physical injuries and any mental trauma that follows, diseases contracted in the course of working, and injuries that develop slowly over time.  It’s also important to note that it doesn’t matter whether or not the employee themselves are responsible for causing their injury; to be an injury that is covered by workers’ compensation, the only requirement is that it’s truly a work-related injury.

2)      Did the injury happen as a result of employee wrong-doing or misconduct?

Yeah, I know this question seems exactly contrary to what I said above, but there’s actually an important distinction here worth mentioning.  Purely accidental or unintentional injuries are covered by worker’s compensation, even if it’s the employee’s fault.  However, what isn’t covered are injuries that an employee inflicts upon him or herself for the purpose of getting worker’s compensation.  Basically fraud, conduct that goes against company policy, and any other criminal behavior that results in an injury while on the job isn’t covered by workers’ compensation.  So don’t go jumping off bridges just to get an early retirement.

3)      Is the injured party an employee?

Finally, it’s important to note that only employees are covered by workers’ compensation.  Business owners, independent contractors, and unpaid volunteers aren’t covered by workers’ compensation insurance.  In addition, in many states, coverage doesn’t extend to farm, maritime, railroad workers, and even federal employees.  But be sure to read your carrier’s fine print to see how it fits in your case.

As you can probably see, Lindquist’s heroics fit exactly into these parameters and he was still denied his rightful benefits.  He was a social worker who was doing his job by protecting his clients from a tornado and as a result was impaled in the process.  It should’ve been case closed, but it wasn’t.

Insurance carriers can be pretty heartless when it comes to their bottom line.  So the moral here is that if your injury falls into the right place regarding the questions above, don’t be afraid to take your carrier to court and get what’s rightfully yours.  But more importantly, don’t be afraid to get the media involved.  Because the only thing all insurance carriers hate more than paying out benefits is losing money from bad press.

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Top Five Most Common Personal Injury Claims

America has always, always been cast as being an overly-litigious society, meaning that we are lawsuit happy.  In some ways, it’s true- a new lawsuit is supposedly born every 2 seconds in the U.S.A.  On the other hand, I believe that there are some circumstances where filing a lawsuit is really the most efficient way a person can be compensated for their losses.

A good example of this is when it comes to personal injury claims.  Calculating the damages for property damage is relatively easy- you just simply compare market values.  But when the damage is to a person’s own body, it can be difficult to tell exactly how much they have lost.  This is especially true when trying to factor in the effects of a personal injury, like lost wages or future loss of earning capacity.

In such cases, legal expertise may be needed to determine whether a person should be compensated, and by how much.  In attempts to help us understand personal injury claims more, here is a list of the top five most common personal injury claims and some background on their causes:

#5: Products Liability claims

Products liability injuries account for about 7% of all personal injury cases.  There are an estimated 20,000 products liability claims being filed each year.  People are bound to get injured due to the sheer number of products out there- products liability claims can involve anything from unsafe medical devices to faulty toys and even some pet products.

Also, products liability cases have the second-highest median (about $300,000) when it comes to damages awards. Only medical malpractice cases have a higher median for damages awards.  In my opinion some people file products liability claims because they know that manufacturers tend to be where the “deep pockets” are.  A common example of this is with the recent resurgence of big tobacco cases involving multi-million dollar, borderline excessive punitive damages awards.

#4: Slip and Fall claims

The National Safety Council reports that in 2007, slip and fall accidents accounted for the death of over 20,000 Americans, and contributed to over 7 million injuries.  One of the reasons why this one is so common is that it can happen just about anywhere- the supermarket, the mall, at work, even at home.  Also, the older a person is, the more susceptible they become to a slip and fall-type injury.  Slip and falls can be especially damaging to the spine, neck, head, or hips.

But, proving a slip and fall claim can sometimes be more difficult than for other personal injuries.  It usually involves a combination of negligence and premises liability theories- you’d have to prove that the owner of the premises somehow failed to remedy a dangerous condition such as a slippery floor.

#3: Assault claims

Though technically included under both tort and criminal law, assault claims still account for great number of bodily injury claims each year.  And even though many feel that violent crime is declining, we are still seeing an incredibly high amount of assaults every year- the Bureau of Justice recorded over 2 million simple assault cases in 2010 alone.

Again, these types of personal injury claims are so common because they are widespread.  They often happen in conjunction with other issues, such as domestic violence and alcohol abuse.  Assault injuries are unique in that they often include a claim for emotional distress as well as physical injury.

#2: Work-Related injuries

Despite “today’s economy” and the unemployment rates, work-related injuries are still near the top of this list.  The Bureau of Labor Statistics recorded over 3 million non-fatal work-related injuries in 2009 and almost 5,000 fatal work injuries in 2010.  Work-related injuries tend to involve repetitive stress injuries such as back injuries from lifting, neck injuries from reading, and carpal tunnel syndrome from typing too much.

One thing about work-related injuries is that many of them go unreported for fear of being fired or appearing too “needy”.  This means that figures may be even higher than we suspect.  In some cases this fear is understandable, given the current drought of work.  But, if you do have a legitimate need, don’t be afraid to bring it up with your boss.

#1: Road Traffic accidents

On average, there can be over 6 million car accidents yearly in the U.S.  These may include injuries to drivers as well as bicyclists and pedestrians.  Again, part of the cause is that we simply spend a great deal of time in our cars rather than walking.

It appears that road traffic injuries may be on the rise on account of more distractions, namely, smart phone usage while driving.  To those who currently have a smartphone-addiction and must drive, exercise some restraint and quarantine your phone in some unreachable spot.  Your notifications can wait until you reach your wi-fi enabled destination.


In my opinion, personal injury lawyers tend to have a bad rep due to the amount of unscrupulous lawsuits that are filed each year.  While I believe that the court system exists to help us, that doesn’t mean that we can file frivolous lawsuits or abuse the system.  Pretending you are injured is not a legitimate source of alternative income.  And of course, abusing the legal system can even have criminal consequences.

So while it is ok to seek legal recourse for personal injuries, just make sure that you use common sense and stay within the bounds permitted by law.  And keep an eye on those filing deadlines!

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Bill Strives to End the Inhumane Practices of California Hotels

Californian Senator Kevin de Leon introduced a new bill regarding safety and health standards for California hotels, motels, and lodges that is pending approval.  All that should be said is how truly shameful it is that legislation is needed over something that should be a “no-brainer.”

Apparently hotels using flat bed sheets, not the elastic ones most of us use at home, and not providing the custodial staff with long-handled equipment has caused many workers to suffer chronic and severe injuries.  Therefore, the bill requires hotels, motels, and the like to use elastic fitted bed sheets and provide workers with long-handled tools to ensure that cleaning the hotel rooms and bathrooms do not result in substantial injury to the workers.

A sixty-nine year old worker, Nenita Ibe, an employee of the Hyatt Hotel in Santa Clara, California has suffered chronic back pains, shoulder injuries, swollen knees, and sleep deprivation from daily lifting 25 mattresses weighing over 150 lbs. and getting on her knees to sweep and mop.  Ibe drove to Sacramento last week to testify in favor of this bill, and provided lawmakers with a demonstration of her painful daily routine.

Unfortunately Ms. Ibe is one of many who have had such horrible work experiences.  Further, the Hyatt is not the only hotel chain that implements such unsafe practices for its workers.  Despite this truth, objections have been raised to lawmakers spending precious time over a bill regarding bed sheets and bathroom mops.

As a suggested “quick-fix,” hotels should choose strong, well-built workers for employment requiring strenuous labor.  There have even been some comments indicating that men, not small immigrant women, should be hired.  This is obviously a ridiculous assertion since it is illegal to discriminate based on an employee’s gender or race.  Such a “quick-fix” will not likely be implemented.

Reading of such slave-like practices is shocking.  After all, we are in 2011, not the 1600-1700’s where slavery practices were common.  How could workers not be provided mops to sweep bathroom floors?  In an age of high-tech appliances to do minor work, hotels are expecting their workers to clean bathrooms by getting down on their knees and scrubbing, rather than using helpful equipment?  On top of this, how are hotels expecting a single worker to lift heavy mattresses in order to change the sheets?  There is an obvious risk of severe injury, which would then potentially expose the hotel to legal liability.

Such ridiculous expectations on the part of hotels put the workers’ safety and health in danger; businesses such as hotels should know that such conduct is not supported by the law.  If a business employs workers to carry out certain tasks, then a business has a duty to ensure that those workers are safe from any workplace injury.  The California Hotel & Lodging Association has made statements that changing the bed sheets would cost the hotel industry $15 million statewide.

Although an exact number has not been revealed regarding costs of providing hotel workers with mops or other long-handled tools, it can be assumed that the figure will not be small.  Even if such an expense pinches the pocket of many hotels now, it will save them from the cost of any future litigation and mandatory settlement payments that may result per such hazardous practices employment practices.

The California Senate Committee on Labor and Industrial Regulations has voted favorably for the bill.  The bill next goes to the Senate Appropriates Committee.

On the one hand, it is sad that time is being spent on deciding a bill promoting humane practices to protect the health and safety of workers.  On the other hand, since such safe practices were not innately implemented, time needs to be spent to get the bill passed, so that the health and safety of workers can be protected.

Hopefully California gets its act together and quickly passes this bill.  It will save hotels from any potential litigation, let workers go to work knowing that their health and safety is not at risk, and allow hotel owners to sleep at night with a clear conscience.

Smiley Faces on Facebook: Evidence of Faked Injuries?

A few decades ago, there was a big, game-changing trend in personal injury and insurance litigation: law firms and insurance companies would hire private investigators to secretly film plaintiffs – usually outside their homes. The idea was to catch them engaged in strenuous physical activity, as evidence that the extent and severity of their injuries have been exaggerated. That tactic is still used to this day.

But as we conduct more of our lives online (who needs to go outside, anyway? Vitamin D is overrated), it becomes increasingly useful, in terms of information gathering, to observe our online activities.

Some tort defense attorneys are now subpoenaing (also seen here) social networking sites like Facebook and MySpace (I would make a pithy remark about how nobody uses MySpace anymore, but it would just be cruel at this point) for private communications of users who are suing their clients in personal injury matters.

Apparently, the “tone” of personal communications, including the use of smiley faces, might be relevant in proving that a plaintiff is faking their injuries. That seems like a bit of a stretch. People use smiley faces (or “emoticons”) all the time in online communications, and they can mean anything. Much like profanity, they’re little more than punctuation, at this point.

Of course, I doubt that they’re relying solely on the plaintiffs’ use of emoticons; they would have to look at the substance (a term I use loosely) of these communications, with the use of smiley faces being one small part.

For example, the story linked above mentions that one plaintiff mentioned a planned vacation, suggesting that her injuries were not as bad as she claimed, if they existed at all.

There’s no denying that this evidence is extremely useful for attorneys who defend against personal injury claims. After all, when a person sues for personal injuries and emotional distress, they’re voluntarily putting their physical and mental health directly at issue. Furthermore, defendants in these cases have the right to defend themselves in court. That right includes access to evidence that might exculpate them, even if that evidence is held by third parties (in this case, social networking sites). This is done through the subpoena process.

However, some of these networking sites are fighting the subpoenas (which they certainly have a right to do), on the grounds that complying with all of them would be too costly and onerous, and that the messages could be just as easily obtained from the plaintiffs through the discovery process.

While they aren’t likely to be raised (or at least not argued particularly vigorously) by the owners of social networking sites, there are also serious issues concerning privacy. Courts have ruled that plaintiffs who voluntarily (remember, you don’t HAVE to sue anyone) put their physical condition in issue must make their private communications on social networking sites available to defense counsel. The court reasoned that plaintiffs surrender any legitimate expectation of privacy with respect to such information when they put their physical condition at issue.

While nobody is disputing the right of defense counsel to gather the necessary evidence to mount an effective defense, if we’re going to go down this road, we need to ensure that there are safeguards in place to protect privacy. When you sue for a personal injury, you may lose your expectation of privacy with respect to your physical condition, but that doesn’t mean you lose your expectation of privacy in every other sphere of your life.

When people send messages on social networking sites, they probably aren’t talking about their physical condition, at least not directly. While a person may reveal information about their physical condition in a personal message (“I’m going to go to the store, and I think I’ll take my unicycle for a spin afterwards” would definitely hurt a personal injury plaintiff’s case), that information is usually not the main topic of discussion, and is contained in a message that may also reveal information that’s personal, embarrassing, and/or irrelevant to the case at hand.

When this is the case, some type of safeguards must be put in place to ensure that plaintiffs don’t have embarrassing, personal information (that’s irrelevant to the case) aired to the public. That’s difficult, since a jury will have to see the evidence.

Perhaps a neutral third party could review the communications before they’re aired to the jury, and create a summary of the incriminating evidence, with as little context as possible. Or perhaps it should be viewed by the judge, who could then summarize it for the jury.

Of course, private, irrelevant information can be gleaned from more “traditional” methods of sleuthing, so maybe we simply need to accept that nothing we do will ever be 100% private. And maybe, just maybe, people should stop exaggerating or outright manufacturing injuries when they file personal injury lawsuits, because, if you do, the chances that you’ll be found out get better every day.

Don’t Tase Me Bro. Seriously, I Might Die

The Taser: it’s become a household name. We typically think of it as a highly effective tool that police can use to subdue unruly suspects, without causing any permanent injury. Basically, the device works by pressing it against the body of the person you want to incapacitate, and pushing a button. There are also models that can be used at longer range, and work by shooting metal barbs into the body of the target. The barbs are trailed by thin metal wires, though which the electrical current travels.

Over the last few years, however, there has been an apparent increase in the number of high-profile incidents involving Tasers, which have raised questions about the devices’ safety, and possible overuse.

In one case (for a more detailed but less snarky account, click here), police responded after a man called 911 to report that his 86-year-old grandmother was having an apparent medical emergency. Because I’m writing about it here, you can guess where this is going: the “confrontation” ended with her getting Tased, of course. Apparently, the police arrived before the paramedics, entered the house, and found the grandmother, bedridden. Confused and perhaps somewhat incensed at the unexpected intrusion, demanded that they leave. Apparently being told to leave a private home by its 86-year-old resident is a serious threat to a police officer’s safety.

In another case, the nephew of Supreme Court Justice Clarence Thomas claims to have been Tased after trying to leave a hospital. You know, that thing you have every right to do, even if it’s against medical advice? That’s a tasing.

It’s important to point out that a healthy adult who is shocked with a Taser is unlikely to suffer any serious injury. However, there have been cases where people have died after being Tased.

So, what does all this mean? It seems to me that Tasers are being used far more often than they need to be.

The weapons police officers use most often cover a wide spectrum of lethality and painfulness. At the low end, there’s the old-fashioned nightstick. At the high end, there’s the gun. Perhaps somewhere in the middle is pepper spray. Police departments seem to operate on a sliding scale when setting rules for the use of these weapons: the least dangerous ones can be used more often, and in situations where the threat to the officer’s safety is relatively minor. The more deadly the weapon, the bigger the threat to the officer has to be in order to justify its use, and, therefore, the less common its use.

So, where should the Taser fall in this spectrum? Police officers seem to think it falls at the low end and can be used whenever, if the stories above are any indication. However, given the fact that deaths can and sometimes do stem from the use of Tasers, they should probably be placed closer to the gun.

One of the big problems associated with frivolous use of Tasers is public perception of the issue. When someone gets tased, many people think it’s funny. If you ever watched Reno 911!, you know that the use of a Taser, in itself, can sometimes serve as a punch line. Even in USA Today, a recent story involving a police officer who tased a female officer in the behind “as a joke” was reported in the “offbeat” section, and the article was written in a pretty light tone. “Ha-ha, a police officer got tased for absolutely no reason! How funny is that?”

I’m sure if the offending officer had walked up behind the other officer, and hit her in the back of the legs with a nightstick, the reaction would be quite different, even though a nightstick serves the exact same purpose as a Taser, and (in that case, at least) would actually have less potential to cause a serious injury. But listen to the funny noises a person makes when they’re tased!

And, of course, there’s the infamous “Don’t tase me, bro!” incident, which became a running gag on the Internet that has lasted for years, inspiring parodies and remixes of the clip. Some of them, admittedly, were pretty funny, at least for those of us totally removed from the incident.

The fact remains, however, that Tasers can kill people, and getting shocked with a Taser isn’t very funny to the victim.

There are signs that the attitude towards Taser use is changing, however. Lawsuits against police departments for unjustified use of Tasers seem to be increasing in number, or at least getting more press. In one recent case, a man sued the Santa Paula, CA police department because he was Tased in jail. The jury apparently found that the police acted inappropriately, because they found in the plaintiff’s favor. This turned out to be something of a hollow victory, however, because they only awarded the plaintiff $1. No, that number isn’t missing any zeroes. That’s one dollar. Apparently, the jury found that the police acted inappropriately, but didn’t cause any significant injury to the plaintiff that warranted compensation. The article does note, however, that a few years ago, that same police department did pay $250,000 to a woman who suffered severe back injuries after being repeatedly shocked with a Taser, having already been wrestled to the ground.

So, what should we take away from all of this? First of all, if you don’t want to get tased, you should never resist arrest, even if you’re innocent. Police officers have every right to defend themselves, and if they perceive a physical threat, they will respond to it.

However, it’s also important for people to know their rights. Police do not have a blank check to engage in violence. It’s possible that, until recently, people haven’t really viewed tasing as an act of violence. But given the pain it causes, and the risks to physical safety it creates, viewing it as anything else is disingenuous.

Every person who is tased without justification should at least consult with a lawyer to see if they have a case for police brutality. And these lawsuits should not be characterized as opportunities for criminals to collect a fat check from the police department that arrested them, even though many commentators will probably do so. People all over the country bring lawsuits for police brutality, and most of them are dismissed early on, because most of them simply lack merit. It’s safe to assume that if one of these lawsuits makes it to trial, one can assume that there’s a significant amount of evidence to back them up.

Finally, a series of lawsuits (both winning and losing) on the use of Tasers would give police departments some guidance on when their use is legal, and allow them to come up with appropriate guidelines on their use. And one of the best ways to avoid abuse of a particular law enforcement tool is to make it perfectly clear to officers in the field when that tool can be used.