Category Archives: Injury FAQ’s

Know NY’s Boating Laws Before You Take to the Water

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skaneateles-wooden-boat-showBoating in the Finger Lakes region of upstate New York is an experience people come from around the world to enjoy. Although our area’s long and narrow lakes (the seven most commonly called “Finger Lakes” are Otisco, Owasco, Canandaigua, Keuka, Seneca and Skaneateles) are usually calm and pristine, reflecting the surrounding hills like mirrors, it doesn’t mean that boating on these lakes is without risk.

Boating involves serious preparation and attention to precautions. As a personal injury attorney and a avid boater myself, I thought the beginning of the summer season was a good time to remind everyone of New York state’s Boating Regulations and the New York State Navigation Law.

For more details and updates about these rules, visit the Web site of the New York State Parks and Recreation department (www.nysparks.com).

Know Your Speed Limits: To use cars as a comparison, boats don’t stop as quickly or turn as sharply. That means lake boating speed limits MUST be carefully observed for your own safety and the safety of other boaters and swimmers.

I personally keep a boat on Keuka Lake. On that lake, the boating speed limit is 45 mph during daylight, 25 mph after sunset until sunrise, and only 5 mph within 200 feet of the shore, rocks, docks, rafts or moored vessels. (The exception to the 5 mph rule is when pulling up or dropping off a water skier.)

Save Yourself, Save Others: New York state law requires that sailboats less than 23 feet long, Personal Water Craft (PWC), motor boats and manually powered vessels MUST carry the following safety equipment.

A wearable Personal Flotation Device must be available for every person on the craft. In September 2009, New York expanded its PFD rules, requiring all small boat occupants to wear life jackets during the winter as well. You can read more details about this in the NY Injury Law Blog post, “New York Makes Life Jackets Mandatory November through May.”

The PFD must be appropriate for the person wearing it – children under age 12 on boats less than 26 feet long MUST wear a correctly-sized life jacket while the boat is underway.

Boats are also required to carry throw able life preservers, to haul in anyone who needs help in an emergency.

More required equipment:

One or more fire extinguishers, depending on the size of the craft.

Every craft requires Visual Distress Signals. The form and number vary depending on the time and available light as well as the size of the craft. From sunset to sunrise, boats of 16 feet and longer are required to have red flares. During daylight, orange distress flags qualify as the required Visual Distress Signals.

Boats must have an anchor.

Boats of 39 feet long and longer must have a mechanical sound warning device, such as a horn, bell or whistle. Craft less than 39 feet may get by with a whistle, horn or by mouth – just be able to give a hearty yell of warning.

White navigation lights are a must-have as well. The bow and stern of your craft are required to be marked with white lanterns or lights to warn other boats. Sailboats require additional lighting in some circumstances. It’s best to contact the proper authorities for details.

Optional Equipment it’s Good to Have:

  • First Aid Kit
  • Bailer
  • Boat Hook
  • Paddle
  • Compass
  • Marine Radio

Care for Your Equipment: It’s not enough just to buy the required equipment and stow it on your boat. You’ve got to make sure it works. PLEASE BE AWARE OF EXPIRATION DATES ON FLARES AND FIRE EXTINGUISHERS

Obey the Rules of the Water: Some boating-related activities are regulated with strict rules. While water-skiing, the tow-boat must contain an observer (at least 10 years old) as well as a driver. The water-skier must be wearing an approved PFD and water-skiing is only permitted during daylight. Don’t water-ski between sunset and sunrise.

PWC, such as Jet Skis, also are restricted to use only during daylight. The drivers of such craft must be at least 14 years old, and now matter how old, must have completed – successfully – a New York state-approved safe boating course. It’s like a driver’s license – the certificate has got to be in your possession if you are asked by law enforcement to produce it.

Powerboats require training too. Youth ages 10 to 17 must have successfully completed a state-certified Power Squadron or Coast Guard Safe Boating Course in order to operate a powerboat without adult supervision. Again, the certificates for course completion must be in the operator’s possession on the boat.

A Final Word – ‘Diver Down’ Flags: All boats must stay 100 feet from “diver down” flags. Do you know how to recognize these flags? There are two:

  • The Alpha Flag is a blue pennant with a white stripe at the base.
  • The Diver Flag is a red rectangle with a white diagonal stripe.

Steer well clear of these flags to preserve the safety of divers. The flags could well be the only evidence of their presence below the surface.

Thanks for reading and taking an interest in boating safety. Here at the Ziff Law Firm, we have successfully handled a number of Finger Lakes boating accident cases. Check our Boating Accident Landing page for brief descriptions of some of the high-profile boating injury cases we have resolved. Many of the incidents could have been avoided entirely, by simply sticking to the rules set by New York State as well as the federal government to keep boating a safe and fun summer activity.

Thank for reading,

Adam
______________________________
Adam M. Gee, Esq.
NY and PA Personal Injury and Malpractice Attorney
The Ziff Law Firm, LLP
303 William Street
Elmira, NY 14901
Phone: (607)733-8866
Fax: (607)732-6062
Email: agee@zifflaw.com
www.zifflaw.com

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NY Accident Lawyer Offers Do’s & Don’ts for Insurance Medical Exams (IME)

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MME035In a previous post here on the NY Injury Law Blog, I explained the truth about “Independent” Medical Examination (IME) with the insurance company’s doctor. In the original post: “IME Doctors Change Diagnoses for Insurance Company Exams”, I explained how some doctors deliver the diagnoses that the insurance companies want – because the insurance companies pay fees to the doctors.

If you bring an injury lawsuit or file a no-fault claim in New York or Pennsylvania, the insurance carrier has a right to have you examined by a doctor of their own choosing. This is usually referred to as an “IME” which is an acronym for “Independent Medical Examination.” Don’t let this phrase fool you. There is absolutely nothing that is “independent” about this examination.

An IME is an examination paid for by the insurance company with the hope that they will be able to get ammunition from their doctor that will permit them to terminate or minimize their obligation to fully compensate you for your injuries.

Because these exams are NOT “independent,” I refer to an IME as an “INSURANCE Medical Exam.”

Let’s face it, the insurance company is sending you to THEIR doctor with the hope that they may show you are not as disabled as your doctor says. This is a Dr. who is paid a lot of money by the insurance company to tell them exactly what they want to hear: namely, that you are not injured.

Therefore, the “independent” medical doctor who you are going to see will try to show that you are exaggerating, malingering, magnifying your symptoms, or just pretending.

I wouldn’t represent you if I thought that you were guilty of any of these situations. Nevertheless, sometimes doctors make a “mountain out of a molehill” because they are conditioned to believe that most claimants are malingering, pretending, or exaggerating. Some doctors automatically find, and will testify that the results of their examination indicate that you are malingering, pretending, etc.

The defendant’s doctor is listening to EVERYTHING you say and watching everything you do. He will dictate a report of what he sees and hears immediately when you leave his office.

HERE ARE SOME OF THE THINGS THAT YOU SHOULD NOT DO OR SAY AT INSURANCE MEDICAL EXAMINATIONS:

• Don’t lie. Ever. A single lie can undermine your whole case.

• Don’t try to outsmart the doctor. You can’t do it.

• Don’t drive yourself to the visit. Try to have your spouse, friend or neighbor drive you.

• Don’t talk about your accident, injuries, insurance company or case in elevators, common areas or doctor’s waiting room.

• Don’t wear dangling jewelry or earrings.

• Don’t jump on and off of the examination table at the doctor’s office.

• Don’t come in tight jeans or cowboy boots.

• Men, don’t come unshaven.

• Ladies, don’t come with make-up on or wearing high heels.

• Don’t leave the doctor’s office in a running trot or quick walk and jump into your car, because the doctor is probably watching you from his or her window.

• Don’t use medical jargon or fancy terminology when discussing your case or describing your symptoms.

• If you are complaining of a neck injury, don’t twist your head back and forth when the doctor is moving about the room in an effort to follow his movements.

• Don’t discuss money or any plans of retirement with the doctor.

• Don’t discuss your marital situation with the doctor unless the exam is for a psychological injury. Your marital situation is not relevant to the present examination. This is a physical examination.

• Don’t exaggerate your problems. Be truthful, but conservative. On the other hand, don’t minimize your problems. Just tell it like it is.

• Don’t moan, groan and wince or grimace in pain every time the doctor touches you. No matter how lightly or heavily the doctor may touch you, be natural, be yourself, tough it out as best you can. However, if what he is doing hurts you, honestly tell him that he is hurting you.

• Don’t ask the doctor for medication or pain pills.

• Don’t talk about your labor union to the doctor.

• Don’t talk to the doctor about the insurance carrier, attorneys or the adjusters.

• If you have a bad back, don’t bend down and untie your shoes. Wear loafers and kick them off/slide them on.

• Don’t allow the insurance company’s representative to be in the examining room with you when the doctor examines you. Simply explain to the doctor that you deem physical examinations to be private and would like to have the representative leave the room. Be polite and sincere when you say this.

• Do not discuss with the doctor the amount of your claim or the amount of wages you used to make. Politely decline to do so by saying that the insurance company has that information.

• Do not discuss with the doctor whether you have any hearings coming up on your case.

• Do not discuss what you deserve for a settlement or your plans for spending the money you may get.

HERE ARE SOME OF THE THINGS THAT YOU SHOULD DO OR SAY AT THE INDEPENDENT MEDICAL EXAMINATIONS:

• Be honest and cooperative with the doctor.

• Be pleasant. At the same time, you should not behave in such a fashion that the doctor can say you were laughing during the examination.

• Be concerned. Be serious. Be polite. Give the doctor accurate, but brief, history on how your accident or injury occurred.

• Give the doctor an accurate history of your job details and what you do in terms of lifting, bending, stooping, carrying, and walking.

• If the doctor asks you about any previous injuries or illnesses you had before the present one, be honest and tell him the nature of any injuries you had, and whether you had surgery in connection with those previous injuries. On the other hand, do not volunteer information.

• If the doctor asks if you have had any previous workers’ compensation claims, you should say to him, “I’ve had previous workers injuries” (if that is true). However, you should always disclose any injury whether it is work related or not if the doctor asks you for a previous history of injuries.

• Be aware that the doctor is sometimes performing the same test on you in more than one fashion and in more than one way. For example, the doctor may test your legs when you are sitting up and when you are lying down. This is the same test. Therefore, if you complain of pain inconsistently, the doctor is going to make note of it. Don’t try in any way to magnify or exaggerate your pain. Let the truth come out and we will obtain a more favorable report from the doctor. If you exaggerate your pain, or if you are inconsistent, or if you try to impress the doctor with the significance of your pain, this will only give the doctor ammunition with which to hurt your case.

• If you are totally disabled, explain to the doctor that if there was any way you could be back at work, you would be there.

• If you have a long work history (a long history is 5 years or more) emphasize to the doctor that you have worked for this employer for a significant number of years and you would like to get back to work.

• If you have a short history of work with the employer and you enjoyed your job, explain to the doctor that although your employment with this employer was brief, you enjoyed working there and would like to return to work.

• When you are giving a history to the doctor as to how the accident occurred, please mention all injuries that you suffered as a result of this accident. For example, if you mainly injured your back when you fell, but you also hurt your knee, mention that you hurt your left or right knee (as the case may be). If, when you tried to stop your fall you pushed out your hands, mention that your primary pain is in your back, but you tried to break your fall with your hands and you also bruised them.

• Remember, the person who tells the doctor that he/she does absolutely nothing all day is less likely to be believed than a person who says, “I try to be active or I try to do some chores, but I suffer for it the next couple of days.”

• Finally, ask the doctor to send a copy of his or her evaluation to your treating doctor.

IMPORTANT: IME doctors will often exaggerate the time they spent questioning and examining you. To combat this, it is imperative that you keep track of the time you spent with the doctor. Do not be obvious about doing so but glance at your watch so you can accurately advise us of the times.

ALSO IMPORTANT: As soon as you are home, sit down and write down every detail you can recall of your exam (i.e. time spent with a nurse or doctor, questions asked by the doctor and your answers, tests performed by the doctor, etc.). We understand that you can’t remember everything but just do the best you can.

If you have any questions your IME, contact us. The Ziff Law Firm even has a videotape to help clients prepare for an IME. Please contact our office for a consultation, and check the post “IME Doctors Change Diagnoses for Insurance Company Exams” to be forewarned about this important part of your injury case.

Thanks for reading and let me know if you have any questions,
Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, 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

E-mail me at FreeReports@zifflaw.com for two free books:
NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

Your “Independent” Medical Examination (IME) with the

Insurance Company’s Doctor

If you bring an injury lawsuit or file a no-fault claim in NY or Pennsylvania, the insurance carrier has a right to have you examined by a doctor of their own choosing. This is usually referred to as an “IME” which is an abbreviation for “Independent Medical Examination”. But don’t let this phrase fool you. There is absolutely nothing that is “independent” about this examination. This is an examination paid for by the insurance company with the hope that they will be able to get ammunition from their doctor that will permit them to terminate or minimize their obligation to fully compensate you for your injuries.

Because these exams are NOT “independent”, I refer to an IME as an “INSURANCE Medical Exam”.

Let’s face it, the insurance company is sending you to THEIR doctor with the hope that they may show you are not as disabled as your doctor says. This is a Dr. who is paid a lot of money by the insurance company to tell them exactly what they want to hear: namely, that you are not injured.

Therefore, the “independent” medical doctor who you are going to see will try to show that you are exaggerating, malingering, magnifying your symptoms, or just pretending.

I wouldn’t represent you if I thought that you were guilty of any of these situations. Nevertheless, sometimes doctors make a “mountain out of a molehill” because they are conditioned to believe that most claimants are malingering, pretending, or exaggerating. Some doctors automatically find, and will testify that the results of their examination indicate that you are malingering, pretending, etc.

The defendant’s doctor is listening to EVERYTHING you say and watching everything you do. He will dictate a report of what he sees and hears immediately when you leave his office.

HERE ARE SOME OF THE THINGS THAT YOU SHOULD NOT DO OR SAY AT INSURANCE MEDICAL EXAMINATIONS:

· Don’t lie. Ever. A single lie can undermine your whole case.

· Don’t try to outsmart the doctor. You can’t do it.

· Don’t drive yourself to the visit. Try to have your spouse, friend or neighbor drive you.

· Don’t talk about your accident, injuries, insurance company or case in elevators, common areas or doctor’s waiting room.

· Don’t wear dangling jewelry or earrings.

· Don’t jump on and off of the examination table at the doctor’s office.

· Don’t come in tight jeans or cowboy boots.

· Men, don’t come unshaven.

· Ladies, don’t come with make-up on or wearing high heels.

· Don’t leave the doctor’s office in a running trot or quick walk and jump into your car, because the doctor is probably watching you from his or her window.

· Don’t use medical jargon or fancy terminology when discussing your case or describing your symptoms.

· If you are complaining of a neck injury, don’t twist your head back and forth when the doctor is moving about the room in an effort to follow his movements.

· Don’t discuss money or any plans of retirement with the doctor.

· Don’t discuss your marital situation with the doctor unless the exam is for a psychological injury. Your marital situation is not relevant to the present examination. This is a physical examination.

· Don’t exaggerate your problems. Be truthful, but conservative. On the other hand, don’t minimize your problems. Just tell it like it is.

· Don’t moan, groan and wince or grimace in pain every time the doctor touches you. No matter how lightly or heavily the doctor may touch you, be natural, be yourself, tough it out as best you can. However, if what he is doing hurts you, honestly tell him that he is hurting you.

· Don’t ask the doctor for medication or pain pills.

· Don’t talk about your labor union to the doctor.

· Don’t talk to the doctor about the insurance carrier, attorneys or the adjusters.

· If you have a bad back, don’t bend down and untie your shoes. Wear loafers and kick them off/slide them on.

· Don’t allow the insurance company’s representative to be in the examining room with you when the doctor examines you. Simply explain to the doctor that you deem physical examinations to be private and would like to have the representative leave the room. Be polite and sincere when you say this.

· Do not discuss with the doctor the amount of your claim or the amount of wages you used to make. Politely decline to do so by saying that the insurance company has that information.

· Do not discuss with the doctor whether you have any hearings coming up on your case.

· Do not discuss what you deserve for a settlement or your plans for spending the money you may get.

HERE ARE SOME OF THE THINGS THAT YOU SHOULD DO OR SAY AT THE INDEPENDENT MEDICAL EXAMINATIONS:

· Be honest and cooperative with the doctor.

· Be pleasant. At the same time, you should not behave in such a fashion that the doctor can say you were laughing during the examination.

· Be concerned. Be serious. Be polite. Give the doctor accurate, but brief, history on how your accident or injury occurred.

· Give the doctor an accurate history of your job details and what you do in terms of lifting, bending, stooping, carrying, and walking.

· If the doctor asks you about any previous injuries or illnesses you had before the present one, be honest and tell him the nature of any injuries you had, and whether you had surgery in connection with those previous injuries. On the other hand, do not volunteer information.

· If the doctor asks if you have had any previous workers’ compensation claims, you should say to him, “I’ve had previous workers injuries” (if that is true). However, you should always disclose any injury whether it is work related or not if the doctor asks you for a previous history of injuries.

· Be aware that the doctor is sometimes performing the same test on you in more than one fashion and in more than one way. For example, the doctor may test your legs when you are sitting up and when you are lying down. This is the same test. Therefore, if you complain of pain inconsistently, the doctor is going to make note of it. Don’t try in any way to magnify or exaggerate your pain. Let the truth come out and we will obtain a more favorable report from the doctor. If you exaggerate your pain, or if you are inconsistent, or if you try to impress the doctor with the significance of your pain, this will only give the doctor ammunition with which to hurt your case.

· If you are totally disabled, explain to the doctor that if there was any way you could be back at work, you would be there.

· If you have a long work history (a long history is 5 years or more) emphasize to the doctor that you have worked for this employer for a significant number of years and you would like to get back to work.

· If you have a short history of work with the employer and you enjoyed your job, explain to the doctor that although your employment with this employer was brief, you enjoyed working there and would like to return to work.

· When you are giving a history to the doctor as to how the accident occurred, please mention all injuries that you suffered as a result of this accident. For example, if you mainly injured your back when you fell, but you also hurt your knee, mention that you hurt your left or right knee (as the case may be). If, when you tried to stop your fall you pushed out your hands, mention that your primary pain is in your back, but you tried to break your fall with your hands and you also bruised them.

· Remember, the person who tells the doctor that he/she does absolutely nothing all day is less likely to be believed than a person who says, “I try to be active or I try to do some chores, but I suffer for it the next couple of days”.

· Finally, ask the doctor to send a copy of his or her evaluation to your treating doctor.

IMPORTANT: IME doctors will often exaggerate the time they spent questioning and examining you. To combat this, it is imperative that you keep track of the time you spent with the doctor. Do not be obvious about doing so but glance at your watch so you can accurately advise us of the times.

ALSO IMPORTANT: As soon as you are home, sit down and write down every detail you can recall of your exam (i.e. time spent with a nurse or doctor, questions asked by the doctor and your answers, tests performed by the doctor, etc.). We understand that you can’t remember everything but just do the best you can.

If you have any questions about the above, please let us know now, before your IME. If you have not already viewed the videotape regarding preparing for your IME, please contact our office to set up an appointment to see the videotape before your IME.

Ziff Law Firm, LLP

303 William St., Elmira, NY 14902

Tel. (607) 733-8866 Fax. (607) 732-6062

Toll Free 1-800-943-3529

www.zifflaw.com

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NY Accident Lawyer Explains Why He Probably WON’T Take Your School Sports Injury Case

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Baseball-sliding-into-base

As an experienced injury lawyer, you often demonstrate how smart you are by the cases you DO NOT take – as much so as by those cases that you DO take.

While I certainly don’t mind a challenging case (and I have taken many over the years!), there are certain types of cases where the law is so stacked against you that you just have to know when to say NO.

Sad to say, school sports injury cases are an example of the type of case that is virtually impossible to win.

Why?

Well, the law is stacked against you in many respects.  First, there is a defense known as the “assumption of the risk doctrine.” Basically, this doctrine contends that people who are voluntarily engaging in a sport, assume the risk of the types of injuries that are inherent in that sport, and therefore they cannot recover for those injuries.

For example, if you are a pitcher on a baseball team, you assume the risk that a batter might hit a ball that hits you in the mouth. Likewise, if you are a baseball spectator, you assume the risk that a foul ball might hit you. On both of these scenarios, there are tons of NY cases that have been dismissed by the court because of the assumption of risk doctrine.

Two great blog posts, “Assumption of Risk Doctrine Bars New York Sports Injury Lawsuits – Part 1″ and “Assumption of Risk Doctrine Bars New York Sports Injury Lawsuits – Part 2 (Baseball)”, by NYC attorney John Hochfelder explain the assumption of the risk doctrine as it applies to many sports:  baseball, floor hockey, wrestling and soccer.

With all of that said, there ARE some types of sports injuries cases that MAY be a possible case despite the assumption of the risk doctrine.

These cases usually involve an injury that is NOT inherent in the nature of the sport or a hazard of a type that is generally not assumed in that particular sport. For instance, if there’s a metal spike sticking up out of the ground in the base path to second base and a school knew about that hazard and failed to take any steps to remedy that condition, that might give rise to liability against the school.

The bottom line is that it is VERY difficult to decide if you have a good case or not and therefore it is usually best that you consult with an experienced injury lawyer to determine if you have a case or not.

If you want to e-mail me the details of your case at jreed@zifflaw.com, I am happy to let you know what I think.

Thanks for reading,

Jim
_________________________________
James B. Reed
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
Mailto: jreed@zifflaw.com
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Web: www.zifflaw.com
Blogs: NYInjuryLawBlog.com and
NYBikeAccidentBlog.com


NY Injury Lawyer Urges: Protect Yourself And Your Patrons – From Treacherous Winter Walking Conditions

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Clearing icy sidewalkOver my 23 years of practice in Upstate NY and PA, I have handled my share of tragic cases due to falls on snow and ice:

  • a woman from Ithaca, NY who suffered a permanent brain injury due to hitting her head on an ice sidewalk outside a Corning, NY pizzeria;
  • a construction worker from Elmira who was caused to suffer a nasty, spiral fracture of his femur when caused to fall on icy steps at a Waverly, NY factory;
  • a Binghamton, NY man who badly injured his back in a twisting fall in a shopping mall parking lot.

Each of these cases resulted in very substantial payments by the insurance carriers for the property owners.

The sad part about each of these cases was just how easily they could have been avoided had the property owner just taken the simple (and legally required) step of keeping their property free of snow and ice.

Now don’t get me wrong, as a property owner myself, I know that it’s often a pain in the neck to keep my home and my office clear of snow and ice but I also know that it is my legal responsibility to do so and even more important, I sure don’t want to see one of my family, friends or clients hurt just because I was too lazy to make sure that I kept my property safe.

During the cold and stormy months of winter, it seems as if we just get the sidewalks cleared before Mother Nature strikes with another storm. A new layer of snow and ice coats the area, making roads and sidewalks slippery and dangerous until we can treat and clear them again.

I want to share some advice about winter conditions and legal liability. This is good information to remember, no matter what your “walk” in life. You may a business or building owner with the responsibility of keeping sidewalks and entrances clear and safe, or you could be a victim of a nasty fall on ice, trying to figure out what your legal rights are.

I was inspired to share some information about this issue by a post, Snow and Ice: Five Ways to Avoid Legal Liability by attorney Tim Rayne. Tim’s tips address the potential liability of property owners. He basically cautions them to:

Determine who is responsible for keeping walking areas free of snow and ice. It may be the property owner, or it could be the municipality – the key is to KNOW for SURE and assume the responsibility if it is yours.

Treat ice and snow effectively and get rid of it quickly. Don’t dawdle! If you are a property owner, and you don’t address dangerous walking conditions quickly, you are opening yourself up to a lawsuit.

I want to add that if you are a pedestrian and you note poor conditions, be sure and tell the property owner. You don’t want to be the victim of a slip and fall accident – or allow anyone else to be, either.

And finally, Tim tells property owners to be sure and have enough liability insurance to cover the cost of perhaps serious injuries to victims of slip and fall accidents.

I know from my 20+ years of experience handling personal injury cases that even when insurance adequately covers the costs of physical recovery, serious injuries have repercussions in victims’ family life, careers, mental state and more. First and foremost, we need to keep people aware of their responsibilities and/or risk during this sometimes treacherous season.  Stay safe!

Thanks for reading,

Jim

_________________________________________
James B. Reed, Esq.
NY Fall and Injury Lawyer
Ziff Law Firm, 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
E-mail me at FreeReports@zifflaw.com for two free books:

NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.


Injury Exam Scam: Doctors Deliver Diagnoses to Keep Getting Paid by Insurance Companies

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“A World of Hurt” is right.

Last April, the New York Times ran an in-depth expose of the New York State workers’ compensation system. The articles and associated videos and resources ran under the umbrella title, “A World of Hurt.”

What did the Times discover? I quote: “New York State’s workers’ compensation system serves no one well and is arguably the most adversarial of any state in the nation.”

IME: The test doesn’t deliver the truth

As a personal injury attorney in New York and Pennsylvania and managing partner of the Ziff Law Firm – which has a Workers’ Compensation and Social Security Disability group headed by attorney Eric Johnson – I’ve long felt strongly about some of the issues this series examined.

In particular, I’m galled about the practice of giving injury victims insurance company-ordered, so-called “Independent” Medical Exams, or IMEs, to prove the validity of injuries. These exams are NOT INDEPENDENT.

As a doctor was quoted in the story: “If you did a truly pure report… you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”

Check out the video embedded in this post, depicting a typical IME given by a semi-retired doctor WHO DOESN’T TAKE NOTES.

You can hear the doctor describing the patient’s pains and limitations in the video. The insurance company report of the exam was that the patient was healthy and did not have a valid workers’ comp claim.

When questioned about the different results, the doctor denies responsibility. It must be the fault of the appointment booking agency that transcribed his notes, or the insurance company, he says. Without the video record, it’s the patient’s word against the doctor’s. Guess who wins that bout.

How can insurance companies pay for “independent” exams?

IMEs are meant to flush out people who are faking or exaggerating their injuries. More than 100,000 of these exams are given each year in New York State.

The big irony of the system is that the people who are truly hurt – workers who are suffering both physically and financially – are often further victimized by the system. Their cases get ground to dust by the interlocking gears of the big insurance companies, the “expert” doctors who are essentially paid to save the insurance company money, and the “entities” – exam booking and transcription agencies – who give the doctors and the insurance companies plausible deniability.

Check another post on the NY Injury Law Blog, “NY Accident Lawyer Offers Do’s and Don’ts For Insurance Medical Exams (IME)” for tips about what to wear, how to act and what to do and say during an IME. My recommendations are based on experience advising clients for more than 20 years. It’s a must-read for clients before they have what I refer to as their “Insurance” Medical Exam.

Thanks for reading,
Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, 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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“Vicious Propensities”: Dog Owners’ Liability and Responsibilty to Spot Warning Signs of Attack

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angry-dog-biting-fenceWhat are “vicious propensities”?

As an New York dog bite and dog attack attorney, I am ready to clear up some of the confusing and complicated terms that come up in dog attack cases.

A key element in many such cases is the owner’s knowledge of their dog’s “vicious propensities.” This knowledge – that the animal presented a risk – is required to prove liability in New York dog attack cases. (See my related post “When Dogs Attack: ‘Vicious Propensities’ and Owner Liability Under New York State Law” for more information on this topic).

Just what are vicious propensities? Vicious propensities are something about a dog’s behavior that should have tipped off the owners that the dog might have the tendency to attack. In a dog attack case, the jury decides this based on the facts and actions in the individual case. Below are some things that have indicated vicious propensity in dogs involved in past cases:

  • jumping aggressively against a fence,
  • barking and growling, snapping, showing its teeth,
  • prior attacks of people by the dog and past declaration of a dog as a “dangerous dog.” See the “Dangerous Dogs in New York” post on this blog for more details on what a dangerous dog is.

However, there are some less obvious indications of vicious propensity:

  • keeping a dog for use as a guard dog,
  • constructing a pen or fence to keep the dog away from visitors due to past problems,
  • “beware of dog” and similar signs,
  • verbal warnings to people not to enter the property because the dog was loose on the property,
  • records indicating the dog was aggressive,
  • the type and severity of the attack on the victim,
  • sometimes, past attacks on other animals.

Again, though, these things are just indications that may help prove vicious propensity.

It is important to remember that just because this has lead a jury to believe or not believe in “vicious propensity” in the past does not mean a jury in every situation will agree. The court and jury will look at all the facts of the situation including how often the dog displayed these propensities, whether it was only directed at a few individuals or all individuals and whether the dog’s vicious propensities are similar to the circumstances of the victim’s attack. For example, if the victim was attacked while walking to a mailbox and the information presented on the dog only showed that the dog barked aggressively at cars, that might not be sufficient to make the owner aware of the dog’s vicious propensities.

The court cannot decide a dog has vicious propensities based SOLELY on their size or breed. For instance, some people have argued that certain breeds (e.g. pit bulls, German Shepherds, Rottweiler’s) should be considered “vicious” just be virtue of the stereotyped nature of the breed as aggressive or vicious. The N.Y. courts have rejected this argument and accordingly, the breed of the dog, standing alone, will NOT be considered proof of the vicious propensity of a particular dog from that breed.

Does the victim have to prove that the owner actually knew his or her dog was vicious?

It is not required that a victim of a dog attack actually prove that the owner KNEW the dog had vicious propensities. That would be very difficult to prove what someone else actually knew. Rather, the victim must prove that that dog had certain vicious propensities. If the vicious propensities shown are enough, the court or jury will decide for the injured person based on the idea that a “reasonable person” would have known that their pet had vicious propensities.

Is there a “One Bite Rule” in New York state dog attack cases?

Some people believe that a “one bite rule” exists. A “one bite rule” requires that a dog must have bit a person prior to the current dog attack; therefore, a dog would have to bite on two different occasions before the owner could get in trouble. Under the “one bite rule,” each dog was allowed “one free bite.”

There is not a “one bite rule” in New York. Therefore, a dog can be found to have vicious propensities without having EVER bitten or attacked in the past, rather, other things such as a dog growling, jumping or being used as a guard dog is sufficient.

In other words, dogs in New York do not get “one free bite.” BUT, just because a dog has attacked a person prior does not necessarily mean the jury will find a dog has vicious propensities, either. The jury has to decide whether the prior incident should have made the owner’s aware of the dog’s tendency to attack. Although it is likely the prior attack will result in a finding of vicious propensities, it is not a sure thing.

We hope you found this information helpful. If you or a loved one has been the victim of a dog attack or dog bite please feel free to contact me directly at jreed@zifflaw.com or call 800-ZIFFLAW (943-3529) to discuss your legal options.

Thanks,

Jim
_________________________________

James B. Reed
NY & PA Dog Bite Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Phone: (607) 733-8866 Fax: (607) 732-6062
Toll-free: (800)-943-3529
mailto:jreed@zifflaw.com www.zifflaw.com


Dog Attacks: Vicious Propensities

What Are “Vicious Propensities”?

An owner’s knowledge of their dog’s vicious propensities are required to prove liability in New York dog attack cases. See the “Liability in Dog Attacks” blog for more information on this. But, what are vicious propensities? Vicious propensities are something about a dog’s behavior that should have tipped off the owners that the dog might have the tendency to attack. In a dog attack case, the jury decides this based on the facts and actions in each case. Below are some things that have indicated vicious propensity in past cases.

Some examples of vicious propensities may seem obvious: jumping aggressively against a fence, barking and growling, snapping, showing its teeth, prior attacks of people by the dog and past declaration of a dog as a “dangerous dog.” See the “Dangerous Dogs in New York” blog for more details on what a dangerous dog is.

However, there are some less obvious indications of vicious propensity: keeping a dog for use as a guard dog, constructing a pen or fence to keep the dog away from visitors due to past problems, “beware of dog” and similar signs, verbal warnings to people not to enter the property because the dog was loose on the property, records indicating the dog was aggressive, the type and severity of the attack on the victim and, sometimes, past attacks on other animals.

Again, though, these things are just indications that may help prove vicious propensity. It is important to remember that just because this has lead a jury to believe or not believe in “vicious propensity” in the past does not mean a jury in every situation will agree. The court and jury will look at all the facts of the situation including how often the dog displayed these propensities, whether it was only directed at a few individuals or all individuals and whether the dog’s vicious propensities are similar to the circumstances of the victim’s attack. For example, if the victim was attacked while walking to a mailbox and the information presented on the dog only showed that the dog barked aggressively at cars, that might not be sufficient to make the owner aware of the dog’s vicious propensities.

The court can not decide a dog has vicious propensities based SOLELY on their size or breed. For instance, some people have argued that certain breeds (e.g. pit bulls, German Shepherds, Rottweiler’s) should be considered “vicious” just be virtue of the stereotyped nature of the breed as aggressive or vicious. The N.Y. courts have rejected this argument and accordingly, the breed of the dog, standing alone, will NOT be considered proof of the vicious propensity of a particular dog from that breed.

Does the Victim Have to Prove that the Owner ACTUALLY Knew Their Dog Was Vicious?

It is not required that a victim of a dog attack actually prove that the owner KNEW the dog had vicious propensities. That would be very difficult to prove what someone else actually knew. Rather, the victim must prove that that dog had certain vicious propensities. If the vicious propensities shown are enough, the court or jury will decide for the injured person based on the idea that a “reasonable person” would have known that their pet had vicious propensities.

IS THERE “A One Bite Rule” IN NEW YORK DOG ATTACK CASES?

Some people believe that a “one bite rule” exists. A “one bite rule” requires that a dog must have bit a person prior to the current dog attack; therefore, a dog would have to bite on two different occasions before the owner could get in trouble. Under the “one bite rule”, each dog was allowed “one free bite.”

There is not a “one bite rule” in New York. Therefore, a dog can be found to have vicious propensities without having EVER bitten or attacked in the past, rather, other things such as a dog growling, jumping or being used as a guard dog is sufficient. In other words, dogs in New York do not get “one free bite.” BUT, just because a dog has attacked a person prior does not necessarily mean the jury will find a dog has vicious propensities, either. The jury has to decide whether the prior incident should have made the owner’s aware of the dog’s tendency to attack. Although it is likely the prior attack will result in a finding of vicious propensities, it is not a sure thing.


When Dogs Attack: “Vicious Propensities” and Owner Liability Under New York State Law

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Dog-on-a-leashTo many people, dogs truly are “man’s best friend.” Certainly, dogs can be wonderful companions and add much to people’s lives.

As a dog lover and past Board member for the Chemung County SPCA, I wholeheartedly agree with all the great sentiments about dogs and the joy that they can bring.

Unfortunately, however, some folks do not realize the responsibilities that come with dog ownership – including controlling your dog and keeping it appropriately fenced or leashed. Often, not controlling or appropriately containing a pet hurts the pet. A dog can easily be the victim of an accident or become lost. In other scenarios, a dog owner’s lack of responsibility hurts other people. Our law firm has seen too many people scared for life from a dog attack or avoiding a dog attack.

When can someone be held responsible for a dog attack?

There is no easy answer to this question. It is more of step-by-step process, decided by a series of standards:

First, was the injured party bit by the dog or hurt while avoiding a dog? When people think of this area of law, many folks think an actual attack is required, but a pet owner can be held responsible if someone is injured fleeing a dog when they believe they are going to be attacked.

Second – and it gets more complicated here – did the dog owner know the dog had “vicious propensities” as is required under N.Y. dog bite law?

“Vicious propensity”… what in the world is that and what does it mean?

Like many things in the law, the answer to is: It’s complicated. See my related post, “Vicious Propensities”: Dog Owners’ Liability and Responsibilty to Spot Warning Signs of Attack” for details.

For the purposes of this post and simply put, it means: Could something about the dog’s behavior have tipped off the owners that this dog might have the tendency to attack someone? It could be something obvious – like vicious growling or biting in the past. However, it could be something less obvious – such as use as a guard dog.

The determination of whether a dog has exhibited vicious propensities must be determined on a case-by-case basis. Clearly, a prior attack or bite by the dog constitutes a vicious propensity, but short of a previous attack or bite, the determination must be based upon the facts of this particular dog’s history.

Can owners be held responsible if their dog is NOT LEASHED and it attacks?

Many municipalities in New York state, including Elmira, have leash laws whereby an owner can be fined for not keeping a dog confined or on a leash. But what about their being held liable in a civil proceeding if their dog is not leashed or confined and it attacks?

In the past, an owner could be held liable through negligence if a person was injured by a dog attack while the owner was violating the leash law.

Negligence? Generally, negligence means having a responsibility to act a certain way and then not doing it.However, it is a bit more complex and usually broken down into parts.

Specifically, negligence means that someone has a duty to do something, that duty is not completed and not following the duty caused the injury with damages. For example, if there was a duty to leash a dog, the owner did not leash it, the dog ran away from the owner and bit someone because it was loose, the person had medical bills and lost work, etc, that would amount to negligence.

Being held responsible for a dog biting when off a leash makes sense, right? After all, if the owner is supposed to keep a dog on a leash and does not, the owner should be held responsible if a person is hurt as a result of the pet being loose. The attack probably would not have happened if they were following the rules! Unfortunately, though, the high court of New York, the Court of Appeals, recently disagreed in the case of Petrone v. Fernandez.

N.Y. Courts take a step backward …

In Petrone v. Fernandez, a dog was not leashed or fenced, in violation of a local leash law. A mail carrier was delivering mail when she turned around to see a large dog running at her, only about six feet way. The mail carrier ran and attempted to jump in her car.

While jumping in her car through the window, her hand was stuck outside the car and she injured her finger, causing her pain for several months, missed work and was only able to engage in limited activities. She sued and, although the incident likely would not have happened had the dog been leashed, the court said that violating a leash law, although an indication of the owners’ negligence, was not enough to hold the pet’s owners responsible.

What does that all mean? It means that, as a result of this case, indications of negligence by the owners, including violating the law by not keeping the pet on a leash, is not enough is make an owner liable. In other words, negligence is NOT enough; the ONLY way that an owner can be held responsible is if they knew the dog had vicious propensities.

Why did the Court of Appeals change the law in the Petrone case?

Why the change and why discourage responsibility? Hard to say.

The court may want to simplify these cases and make them more “cut and dried” or maybe they think that violation of a leash law is not a good enough indication that the owners should be held responsible for their pet’s actions. Maybe they want to limit the cases on this subject.

Whatever the reason, it seems unlikely that insisting on the foreknowledge of “vicious propensities” will make things simpler or do justice to people who have been attacked.

Is it really fair to make someone that has been injured jump through hoops to prove that an owner knew of his or her dog’s vicious propensities – even when the incident likely would not have happened if the owner followed the law? And, what if no vicious propensities can be found – should a victim of such an incident be left without compensation and justice? We do not think so.

We hope you found this information helpful. Be sure to look at our other posts on dog bites and dog attacks here on the NY Injury Law Blog.

If you or a loved one has been the victim of a dog attack or dog bite, please feel free to contact me directly at jreed@zifflaw.com or call 800-ZIFFLAW (943-3529) to discuss your legal options.

Thanks,

Jim
_________________________________

James B. Reed
NY & PA Dog Bite Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Phone: (607) 733-8866 Fax: (607) 732-6062
Toll-free: (800)-943-3529
mailto:jreed@zifflaw.com www.zifflaw.com


NY Accident Lawyer Answers Key Question: How Long Will My Case Take?

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stopwatchOne of the most common questions I am asked by my clients is: HOW LONG WILL MY CASE TAKE?

That is always a tough question to answer as every case is totally different. I have had many cases settle within a few months and I had one medical malpractice case take almost 7 full years (granted, that was a case I wanted to take a long time because it involved an injured baby and we knew we would not be able to know the full outcome of her injuries until she was 4-5 years old).

Cases of multiple injuries, the value of which clearly exceed the limits of the defendant’s insurance coverage, can often be settled in months.

The majority of my cases fall in the 2+/- year range.

In most cases the entire first year is devoted to performing the initial case investigation and then waiting to see the outcome of my client’s injuries. The single most important factor in determining the ultimate value of any personal injury case is the extent to which the injured party has suffered a “permanent” injury — an injury you will live with for the rest of your life.

Doctors need time to make determination

Because “permanency” is such an important factor, I am usually reluctant to undertake any serious settlement negotiations until I have obtained a “permanency opinion” from my client’s treating doctor. A permanency opinion is simply a letter from a doctor, to the effect of “it is my opinion, within a reasonable degree of medical certainty, that my patient has suffered the following permanent injuries and limitations as a result of the collision: permanent limp, decreased range of motion in the right hip and leg, permanent surgical scar, etc.”

Most doctors are unwilling to provide a permanency opinion until their patient’s condition has “stabilized” – the patient is not getting better nor getting worse and “what you see is what you’ve got”. Most doctors use one year post-injury as the general rule of thumb for determining permanency and accordingly most of the time I am waiting until one year post-injury to request this very important permanency opinion letter.

Finding a balanced pace to proceed

Please appreciate that these are general time frames only and it is ALWAYS my goal to resolve cases as quickly as possible. As I always tell my clients: “I don’t get paid until you get paid, and with three college-bound teens, you can be sure I am not going to drag my feet on your case!”

With that said, I always caution my client’s that it can be HUGE mistake to try to rush your case because “you only get one bite at the apple” meaning that once you settle your case, it is settled ALWAYS AND FOREVER, so you better make as sure as possible that you know the full extent of your permanent limitations BEFORE you settle your case.

Finally, I also urge clients to NOT try to rush their cases because if the insurance company gets one whiff of the fact that you are eager to settle, it is the kiss of death and the insurance company will exploit your eagerness by low-balling their settlement offer in your case. This is a very common tactic that many insurance companies are using to take advantage of unrepresented people — they waive $500, $1,000, $3,000 of “quick settlement” money under a person’s nose with the hope that that person will quickly sign off on a case worth 10 times, 50 times, 100 times, more… The key is to resist the temptation of quick money to ensure that you get every penny to which you are entitled.

Sorry for this long-winded explanation but I think it is important for people to understand why taking the time to CORRECTLY pursue your case is so important. If you have any questions about this issue, feel free to let me know and I will be happy to explain further.

Thanks,
Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, 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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Play it Smart: Why Hiring a Lawyer for Your Accident Case Saves You Money

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CBR002454Insurance companies have a ploy they use to cut costs. They offer a small amount of money right away, hoping accident victims will sign away their rights to sue.

NEVER take an insurance check without first consulting an attorney. You need to make an informed decision about what is in your best interest.

Whom is it smarter to listen to – your attorney whose fee is derived from your settlement, or the insurance company, who is trying to pay you as little as possible?

There are three very important things you should consider if you are wondering if you NEED to hire a lawyer to handle your accident case.

  1. PEOPLE REPRESENTED BY AN ATTORNEY GET 300% MORE THAN UNREPRESENTED PEOPLE! A national study found that that injured persons who were represented by an attorney received 300% more than persons who settled their claims without a lawyer. Even after deducting the standard lawyers’ fee of 1/3, those claimants who hired representation netted twice as much as those who accepted an insurance company’s settlement.
  2. If you think you might go to trial to seek a larger judgment, only an experienced attorney is qualified to assess the potential of your case. Though going to trial can take a long time, in many cases the return in the judgment in court is MUCH larger than the insurance company’s low-ball settlement offer. You have to weigh the “bird in the hand” settlement against the risk of going after a greater verdict. An accomplished lawyer can help you make this tough decision – based on their experience in handling similar cases.
  3. The insurance company has attorneys to protect their profits – shouldn’t you have one to ensure you get a fair settlement? Every time one of my client’s tells me that the insurance adjuster told them that they didn’t “need” to hire an attorney, I tell them to ask the adjuster if the insurance company has their own attorneys? If they honestly answer the question, “Yes, of course we have company attorneys”, then ask why is it that the insurance company needs their own attorney while they are recommending that you do NOT need YOUR OWN ATTORNEY? That usually stops them dead in their tracks…

The personal injury attorneys at the Ziff Law Firm, (Carl Hayden, Jim Reed and Adam Gee) will consult with you to see if you need to have them represent you or not. Just call us at 1-800-ZIFFLAW or e-mail us at info@zifflaw.com and we will be happy to speak with you right away.

The bottom line: Yes, attorneys have fees, but in the long run, it could cost you a LOT more NOT to hire one.

Thanks for reading,

Jim
_________________________________________
James B. Reed, Esq.
New York Accident Lawyer
Ziff Law Firm, 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


What You Need to Know About IME, the Insurance Company “Exam”

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I want to share some vital information about an important part of any personal injury, car accident or workers’ compensation case: your Independent Medical Examination, or IME, with the insurance company‘s doctor.

Let’s face it, the insurance company is sending you to a doctor with the hope that they may show you are NOT as disabled as your doctor says. Therefore, the “independent” medical doctor who you are going to see will try to show that you are exaggerating, malingering, magnifying your symptoms, or just pretending.

I refuse to use the word “independent” when referring to these exams, even though they are routinely referred to as IME’s. I call them “Insurance Medical Exams,” or better yet, DME‘s or “Defense Medical Exams.” The bottom line is that these doctors are hired for one purpose and one purpose only – to either deny or minimize a claim.

The IME doctor is listening to everything you say and watching everything you do. He will dictate a report of what he sees and hears immediately when you leave his office.

We routinely send the following list of Do’s and Don’ts for these so-called “independent” exams to clients:

42-15614510

IME Don’ts

  • Don’t lie. That can undermine your whole case.
  • Don’t try to outsmart the doctor. You can’t do it.
  • Don’t drive yourself to the visit. Try to have your spouse, friend or neighbor drive you.
  • Don’t talk about your accident, injuries, insurance company or case in elevators, common areas or doctor’s waiting room.
  • Don’t wear dangling jewelry or earrings.
  • Don’t come to the doctor with hands that look they are dirty from working on a car or changing the oil.
  • Don’t come to the doctor with elaborately painted fingernails (especially if you are claiming carpal tunnel or any other type of chronic pain syndrome).
  • Don’t jump on and off of the examination table at the doctor’s office.
  • Don’t come in tight jeans or cowboy boots.
  • Men, don’t come unshaven.
  • Ladies, don’t come with make-up on or wearing high heels.
  • Don’t leave the doctor’s office in a running trot or quick walk and jump into your car, because the doctor is probably watching you from his or her window.
  • Don’t use medical jargon or fancy terminology when discussing your case or describing your symptoms.
  • If you are complaining of a neck injury, don’t twist your head back and forth when the doctor is moving about the room in an effort to follow his movements.
  • Don’t discuss money or any plans of retirement with the doctor.
  • Don’t discuss your marital situation with the doctor unless the exam is for a psychological injury. Your marital situation is not relevant to the present examination. This is a physical examination.
  • Don’t exaggerate your problems. Be truthful, but conservative.
  • Don’t moan, groan and wince or grimace in pain every time the doctor touches you. No matter how lightly or heavily the doctor may touch you, be natural.
  • Don’t ask the doctor for medication or pain pills.
  • Don’t talk about your labor union to the doctor.
  • Don’t talk to the doctor about the insurance carrier, attorneys or the adjusters.
  • If you have a bad back, don’t bend down and untie your shoes. Wear loafers and kick them off/slide them on.
  • Don’t allow the insurance company’s representative or nurse to be in the examining room with you when the doctor examines you. Simply explain to the doctor that you deem physical examinations to be private and would like to have the representative leave the room. Be polite and sincere when you say this.
  • Do not discuss with the doctor the amount of your claim or the amount of wages you used to make. Politely decline to do so by saying that the insurance company has that information.
  • Do not discuss with the doctor whether you have any hearings coming up on your case.
  • Do not discuss what you deserve for a settlement or your plans for spending the money you may get.

What you should DO at an IME:

  • Be honest and cooperative with the doctor.
  • Be pleasant. At the same time, you should not behave in such a fashion that the doctor can say you were laughing during the examination.
  • Be concerned. Be serious. Be polite. Give the doctor accurate, but brief, history on how your accident or injury occurred.
  • Give the doctor an accurate history of your job details and what you do in terms of lifting, bending, stooping, carrying, and walking.
  • If the doctor asks you about any previous injuries or illnesses you had before the present one, be honest and tell him the nature of any injuries you had, and whether you had surgery in connection with those previous injuries. On the other hand, do not volunteer information.
  • If the doctor asks if you have had any previous workers’ compensation claims, you should say to him, “I’ve had previous workers injuries” (if that is true). However, you should always disclose any injury whether it is work related or not if the doctor asks you for a previous history of injuries.
  • Be aware that the doctor is sometimes performing the same test on you in more than one fashion and in more than one way. For example, the doctor may test your legs when you are sitting up and when you are lying down. This is the same test. Therefore, if you complain of pain inconsistently, the doctor is going to make note of it. Let the truth come out and we will obtain a more favorable report from the doctor.
  • If you are totally disabled, explain to the doctor that if there was any way you could be back at work, you would be there.
  • Ask the doctor to send a copy of his or her evaluation to your treating doctor.

Two important tasks for you:

First, keep track of how long the doctor spends with you. IME doctors will often exaggerate the time they spent questioning and examining you. To combat this, it is imperative that you keep track of the time you spent with the doctor. Do not be obvious about it, but glance at your watch so you can accurately advise us of the time.

Second, as soon as you are home, sit down and write down every detail you can recall of your exam (i.e. time spent with a nurse or doctor, questions asked by the doctor and your answers, tests performed by the doctor, etc.). We understand that you can’t remember everything, but do the best you can.

Finally, two more ways to prepare:

Take a look at our FAQs, “Our Answers to Your Legal Questions.” You will find more answers to questions about accidents, personal injury cases and workers’ compensation.

Watch our videotape about preparing for an IME. You can contact our office to set up an appointment to see the videotape before your exam.

My colleagues and I at the Ziff Law Firm don’t represent people that are pretending to be injured. Nevertheless, IME doctors are conditioned to believe that most claimants are malingering, pretending, or exaggerating. That is why you MUST know how to act during this important phase of your case.

Thanks for reading,

Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, 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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