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As in all injury cases we handle, your initial consultation with our office on comp cases is free. Accordingly, you have nothing to lose to become informed of your rights and the process. Learning about the comp system is very important because even though the system is supposedly set up to protect the injured worker, their are many pitfalls and quirks in the system that you need to know about to adequately protect your interests.

If you decide that you want representation in your New York Workers’ Compensation claim, you will never pay your attorney directly. In fact, under NY law, it’s illegal for a lawyer to accept fees directly from a client in a Workers’ Compensation case. Only the Workers Comp Judge can award an attorney’s fee.

If we represent you at a simple hearing, our fee is generally $100 to $200 depending on how much work we do and we can only be paid if you’re getting paid. In other words, if no money is being awarded to you, the Judge cannot and will not award an attorney’s fee to us. If the Judge awards an attorneys fee, our fee is usually deducted from your award check at a rate of $5 or $10 a week and after 20 weeks we get a check.

Additionally, there are a number of circumstances under which you may be eligible to receive a lump sum compensation payment (more on that later). If we represent you under those circumstances, our fee is generally around 10% of the lump sum amount awarded to you.

Whether it is with our firm or another firm, the important thing is that you meet with someone experienced with workers comp cases and let them explain the workings of the Workers’ Compensation system. Then you can make a decision if you want to be represented.

Please come back for my next installment on Workers’ Compensation in which I discuss “consequential injuries” and what that means in workers comp.

Thanks for reading,
Jim Reed
NY Injury and Accident Attorney
Elmira, NY

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Below is an E-mail exchange between me and a fellow who was recently involved in an auto accident near Buffalo, NY.  This fellow, like most accident victims, was very frustrated by “the system”:

• His car was totalled but because the insurance company only has to pay the fair market value of his car, rather than the replacement cost, he will lose money.
• He is suffering both back and neck pain yet he wants to work.  Because he has a computer job and an accomodating employer, he can manage to work, but he recognizes if he does work, he will not qualify as having suffered a “serious injury” as is required to bring a claim against the jerk who rear-ended him.  In other words, he gets burned if he goes to work and rewarded if he does not…..

Worst of all, this fellow got what I think is BAD ADVICE from another Buffalo law firm (incidentally, one of the mega-firms that you see on the TV every 15 secs!) who told him to NOT work and to “milk it”.  For the reasons discussed below, I think this is horrible advice and my recommendation to my clients is to ALWAYS tell the truth.  And this isn’t just because I am a goody-two-shoes (although I do take great pride in my honesty), it’s because I am convinced that dishonest always ends up backfiring……..

From: Todd
Sent: Saturday, February 02, 2008 11:17 AM
To: James B. Reed
Subject: RE: Question

Jim,

From my research I had surmised about the same [I had explained the "serious injury" threshold to Todd in an earlier E-mail that he is responding to]. I suppose it is safe to say that the laws now mirror our current health system which unfortunately leaves a large hole in meeting the needs of the American citizen. This holds especially true if you are a hard working honest individual. For instance, some of my first advice concerning this matter was to not work at all and quite literally to milk this event until workers compensation had to pay for lost wages. This, however, is completely against the reality of my character; as I am extremely honest and hard working. In my early days I worked construction and injuries and sickness were just not viable excuses to miss any work. Luckily today, I work in the computer field and the injuries I have do not prevent me from servicing my clients from my bed. Add to this my current employer is a wonderful company that has treated me extremely well.

I apologize for running on and on over this, but I have a lot of frustration and emotion. I had a terrible night of pain and I feel as though I will endure all of this for nothing than more costs to me. For instance, I will lose money on the gap between the actual value of my vehicle and the loan. I had 0% financing on this vehicle and I will not have this rate again as it is currently not being offered. I will have to by new glasses to replace the ones destroyed in the accident, etc. Sorry, I am doing it again.

So who in the New York Judicial system reigns as the god of what is and is not a serious injury? Would surgery for soft tissue damage count or is my only recourse that I show evidence of healed stress fractures later. From the research I have done so far it looks like you can have a broken bone and heal in three to six weeks and be able to sue for pain and suffering. But, you could have soft tissue damage, go through surgery and walk with a limp the rest of your life and not be able to receive anything. I need my medication to take hold and get me out of this mood.

Yes please send me your packet. Above all I would like to work with an attorney who is accessible open and up front about how all of this works. Also thank you so much for your time. It is very unusual to have such access to a lawyer like this. The other companies I talked with I dealt with a “claims representative” or phone operator.

Thanks, Todd

 __________________________________________________________

MY RESPONSE TO TODD

Todd:

I TOTALLY understand your frustration. I know the system seems upside down– the hardworking honest person who quickly returns to work gets penalized (”Sorry Mr Hard Worker you have NO serious injury”) while the person who “plays the system” by staying out of work for the required 90 days seems to be rewarded (”Cha-ching Mr. Malinger, you win!).

I agree that the way in which N.Y. defines “serious injury” at times makes no sense because it does not fairly account for soft tissue injuries which can be very painful and debilitating. Come on, how fair is it that a tiny fracture of your little finger qualifies as a “serious injury” while someone with a low back injury who can barely drag himself out of bed does not qualify? Orthopedic Dr’s will tell you that broken bones often heal without any permanent problems while soft tissue damage like ripped and torn ligaments, tendons and other soft tissue ALWAYS leaves behind scar tissue that permanently impairs that soft tissue.

But what I can tell you is that I think the advice you were given by your first lawyers to “stay in bed and milk it” is BAD ADVICE. After 20+ years representing folks injured in NY accidents and having tried many cases before Upstate NY juries, I think juries are VERY perceptive and they can smell a malingerer a mile away. At trial, fakers lose!

So, my best advice is BE HONEST AND TELL THE TRUTH. If you are truly hurt and can’t go to work, then stay home. If you can tolerate the pain, then go to work. I have been pleasantly surprised to see that 99% of the time, if folks are honest, things will work out as they should. With that said, if you are hurting and even if you are going to work, it is still very important that you continue to see your Dr’s on a regular basis and that you follow all of their advice– if they say go to Physical Therapy, go to every appointment; if they say take painkillers and muscle relaxants, then take them; etc. Just because you are able to work in a job that is not physically intensive, does NOT mean that you have not been injured.

The bottom line is that only time will tell if you have a qualifying “serious injury” and no one has a crystal ball. That’s why I tell everyone that any insurance adjuster who tells you “you don’t have a serious injury” is totally full of BS because no one knows for sure until we see how your medical care progresses.

A true story illustrates the point: A friend of mine, John, comes to see me one month after an accident where he was rearended in a tractor-trailer accident. At the time, he has both back and neck pain but so far his xrays are normal and his Dr’s just have him taking muscle relaxants and pain killers. He is able to work because he has a desk job. I honestly told John that it’s too early to tell if he will have a qualifying “serious injury” but tell him to keep me posted about his condition. Fast forward one year. John’s back & neck have both gotten progressively worse. Painkillers and muscle relaxants aren’t working. Physical therapy and chiropractic treatment isn’t working. The insurance company finally authorizes MRI’s of his neck and back revealing herniated disks in both his neck and low back. He ends up with three separate surgeries. I end up settling his case against the rear-ending driver for $975,000. His case went from being worth $0 to almost a million bucks and I truly believe the fact that John toughed it out and attempted to work through the pain made his case worth more than if he had tried to milk it. What goes around, comes around!

So, let’s see how it plays out and take it one step at a time.

We will send our packet of information on Monday. In the meantime, enjoy the SuperBowl!!

Thanks, Jim

PS Forgot to answer your question about who “reigns supreme” in deciding serious injury– it is the Supreme Court judge assigned to hear your case.

_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff, Weiermiller, Hayden & Mustico, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com
http://www.zifflaw.com

——————————————————————————–

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Huh, what do you mean it’s the most important insurance I do NOT have? If it’s important wouldn’t my insurance agent have encouraged me to buy it?

Sad to say…. probably not. As someone who reviews auto insurance policies every day, I am constantly amazed at how few people have this very important coverage.

So what the heck is this coverage? S.U.M. It stands for Supplementary Underinsured/Uninsured Motorists coverage. SUM provides coverage from YOUR insurance company to protect YOU (and your passengers) in the event that the other driver is driving illegally without any insurance (Uninsured) or driving with policy limits that are not high enough to cover your damages (Underinsured).

Why is SUM coverage important? Well, first of all SUM is important because NY only requires drivers to carry minimum liability coverage limits of $25,000/$50,000.

What does this mean? It means that if another driver crashes into you, the most his insurance company will be required to pay any one person injured in the crash is $25,000 and the most they would be required to pay for all persons injured in the crash is $50,000.

Of course, people can purchase more than the minimum liability limits of $25,000 (and I strongly recommend that my clients do so for the reasons discussed below), my twenty years representing folks hurt in car crashes have taught me one tough but important lesson: the worst drivers carry the least insurance!! That’s right, the people who have had several bad accidents because they drive too fast all the time, the person who has two previous DWI’s, the nineteen year old driving his souped-up car….Those are the folks who cause most accidents. And those are the folks who invariably carry the minimum limits. And sadly, there is no law that says the worst drivers should have to carry more insurance to protect the rest of us….

So, if a drunk driver with minimum liability insurance smashes into your car while you are driving with your spouse and two kids, and all four of you receive horrible injuries, the absolute maximum the drunk’s insurance company would have to pay your entire family is $50,000. So you can’t go back to work, you have monstrous medical expenses for your entire family and all they have to pay is $50,000…..

And for those who think $50,000 sounds like a lot of money, trust me; $50,000 is NOTHING when you are not working. $50,000 is NOTHING when one day in the ICU can cost $18,000 (not an exaggeration-one of my clients recently received an $18,000 bill for one day!).

SO IF THE OTHER DRIVER’S LIABILITY INSURANCE ISN’T GOING TO PROTECT YOU, YOU BETTER MAKE SURE YOUR OWN INSURANCE IS GOING TO PROTECT YOU!!

That’s where SUM comes in! For a comparatively small premium (usually just $50-$100 per year), you can purchase SUM coverage from your own insurance company up to the amount of liability insurance coverage you carry on your vehicle. For instance, if you carry $300,000 in liability insurance to protect the other guy, you can purchase $300,000 of SUM coverage to protect you and your family. That means if you get hit by a car that only has $25,000 of liability coverage, you can get an additional $275,000 from your own company! Not bad for a few extra $ a month…..

I know this is complicated to digest in a blog post so I wrote a small book on this subject that I am happy to provide free to my readers. You can sign up for me to send you the book here.

Thanks for reading and feel free to post a Comment if you have any questions about SUM as I truly believe this is very important coverage for EVERYONE to have to protect yourself and your family.

Jim Reed
jreed@zifflaw.com

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First off, I want to thank the readers who have responded to the previous post - that’s the whole point of writing a blog; giving help or advice or just providing a place to sound off on a hot topic.  Judging by the response here, as well as what I see in my own practice, this is a hot topic indeed.

To be perfectly honest, the deck is stacked against the victims of medical malpractice.  The public (the same people who end up on a jury) is under a constant assault of propoganda from the medical lobbies and insurance industry trying to convince them that medical malpractice is a myth, that trial lawyers get rich by bringing frivolous claims (see Jim Reed’s previous article regarding this topic) against innocent doctors, and that these same trial lawyers are causing doctors to abandon certain practice areas and states in droves leaving people without adequate medical care.  Needless to say, none of this true.   In fact, the opposite is closer to the truth.

Medical malpractice is easily the most complicated, most expensive, and most heavily defended type of trial work we do.  In almost every other type of case if you show the insurance company that you have a strong case, they will at least talk with you about a reasonable settlement at some point short of the court house steps.  This is not the case with medical malpractice cases, though.  These cases are defended to the death, and settlement discussions never occur until the case is trial ready, and ususally not until the jury has already been picked.  Medical malpractice cases are expensive, too.  We routinely spend $50,000.00 dollars or more on expert witnesses, pre-trial depositions and exhibits to be used in court, and have spent as much as $80,000.00 on a single case.  Part of the reason these cases are so difficult to settle is because malpractice insurance policies are written differently that just about every other type of insurance, in that the doctor’s permission is required for the insurance company to settle the case.  Since a malpractice award has the potential to affect a doctor’s medical license, the doctors routinely refuse to permit a settlement until the last minute. 

Knowing that we are going to have such a significant investment in the case, we have to be careful about the cases we accept.  Handling medical malpractice cases is a good way to lose your shirt if you don’t know what you are doing.  The very unfortunate result is that we are sometimes forced to decline cases even where we believe malpractice has occurred simply because there are insufficient damages to justify bringing the case.  This is exactly the way the insurance industry and doctors lobbies like it.  In fact, they are constantly trying to make it even harder to bring malpractice cases, most recently by pushing states to enact “tort reform ” bills, usually in the form of caps on damages.

In case you can’t tell from this long post, the actions of the insurance industry and medical lobbies has us fuming.   You should be, too!

 Thanks for reading,

Adam M. Gee, Esq.

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