Personal Injury Questions
When asked how long a man’s legs should be, Abraham Lincoln responded, “Just long enough to reach the ground.” Personal injury cases, depending on the nature and seriousness of the injuries, whether the case can be settled before trial, the complexities of the case, and many other factors all play a role in determining how long it will take to resolve your case. In every case, it’s our goal to respond to your needs and to initiate prompt legal action so your case can be resolved as fairly and quickly as possible.
Some of the items of damage you may receive include:
- past and future pain and suffering and loss of enjoyment of life due to your injuries;
- past and future lost wages and other financial benefits lost due to your disability from work;
- past and future medical bills relating to the injuries you suffered;
- if you’re married, your spouse has a claim for the loss caused to your marriage including loss of love, companionship and spousal services;
- in cases of death, financial losses caused to the decedent’s spouse, children and other dependants.
In New York State, an injured adult generally has three (3) years to start a lawsuit against the negligent person or entity, beginning from the time the accident occurred. However, a medical malpractice lawsuit is generally two and one half (2 ½) years from the time the malpractice occurred. A personal injury claim against New York State must be filed within two (2) years, although you have only one (1) year and ninety (90) days to file against a city, county or other municipality. Against a school district you have only one (1) year. It’s important to recognize that you must also file a written Notice of Claim within ninety (90) days of your accident for any claim against a municipality, including New York State, school districts and most public authorities. This has to be done before you can start a lawsuit. A personal injury action against someone for intentionally causing injury must be filed within one (1) year from the injury.
Keep in mind that the time requirement for filing a lawsuit varies depending on who it is you need to sue. Please don’t wait. Call us to find out how long you have and how we can help.
If the responsible insurance company does not make a fair offer to settle your case, it is important that your case be brought into court and if necessary, tried before a jury. Although most cases settle for fair value before going to trial, it is important to always be prepared.
Social Security Disability Questions
Workers’ Compensation Questions
Every state has passed workers’ compensation laws that provide benefits to employees injured at work. These laws have a variety of names, such as workers’ compensation, workman’s compensation, worker’s compensation, or work comp. These laws require that employees suffering on-the-job injuries receive compensation to replace lost wages and cover medical expenses. Most state laws provide that employers must either carry insurance through a private carrier or show that they can self-insure against claims by workers injured on the job. Other states provide that employers must pay into a state workers’ compensation fund.
Workers’ compensation is a no-fault system. No matter what caused the injury—worker’s negligence, employer’s negligence, or a combination of the two—workers injured on the job receive benefits under the law.
For the most part, states, rather than the federal government, regulate workers’ compensation. However, some workers, such as maritime and railroad workers, are covered by federal, rather than state law. Because of its interstate nature and because of the upsurge in claims in the late 1960s and early 1970s arising from black lung disease, the United States Congress passed legislation providing for compensation to coal field workers suffering from the disease. The Federal Employees’ Compensation Act (FECA) covers on-the-job injuries sustained by federal employees.
Each state has an agency that administers the state workers’ compensation program. Each state has defined standards of what constitutes “disabled,” whether partially or totally, or, temporarily or permanently. Each state provides its own schedule of benefits for particular or specific losses; for example, a worker who sustains the loss of an arm in Iowa may be compensated for the loss at a rate 4-5 times higher than another worker with the same loss in Alabama. Each state has specific definitions for injuries and illnesses arising out of the workplace.
However, all states provide at least some form of the following benefits to workers who have sustained injury at work or who suffer illnesses specifically attributable to the work environment.
Medical expenses, including travel expenses for going to and from doctor’s appointments, the hospital, physical therapy, and the like. The worker must document that the incurred medical expenses were due to the covered injury.
Compensation for lost wages when a worker is determined to be partially or totally, and, either temporarily or permanently disabled due to a condition caused on the job or due to the job.
Complete loss of, or loss of the use of, an extremity, hearing, or sight. Most states utilize a schedule providing specific compensation for a specific injury, for example the loss of an arm or a leg.
Many states also provide vocational rehabilitation designed to put workers who are unable to return to their original work back to work in another field.
Employers in all 50 states have the duty to provide workers’ compensation coverage according to their respective state’s laws and regulations. The laws in some states provide an exception for some very small employers and allow some large employers to be self-insuring. In addition to providing coverage, however, employers may have additional responsibilities. These responsibilities include:
Posting notices of compliance with the workers’ compensation law of the state at each work site
Making sure that reports of injuries are made to the appropriate workers’ compensation office
Providing a written report of all accidents resulting in injury in which a worker loses a certain amount of time
Providing immediate emergency medical treatment for employees who sustain on-the-job injuries
Fulfilling all requests for further information requested by the state’s workers’ compensation enforcement agency
Furnishing medical attention if the worker is unable or unwilling to find a physician on his or her own
Most state laws prohibit employers from discriminating against employees who file workers’ compensation claims. Each state also provides for penalties and fines for employers who fail to fulfill their responsibilities under the law. Each state has an administrative process to make a claim of violation of workers’ comp laws against an employer. If the employer fails to defend against the claim, or, after defending against the claim, is found to have violated the law, the law provides for fines and penalties to be assessed against the employer.
As the terms imply, a worker may be disabled only partially or totally, and, temporarily or permanently. The laws treat each of these conditions differently.
Partially, temporarily disabled
This condition will generally allow the injured worker to receive benefits based on a schedule that bases payments on a percentage of maximum benefits. Generally, a worker will receive these benefits until released to their former job or until a determination that the injury is more permanent.
Partially, permanently disabled
This condition generally allows a worker to receive a percentage of the full benefit on a monthly basis for the remainder of his or her life, unless the condition improves. When the partial disability is a certain percentage below 50 percent, the worker is offered a lump sum payment in most states. Generally, lump sum payments are final and the worker cannot later claim a larger amount.
Totally, temporarily disabled
Many injuries cause total disability for a temporary period. Workers with this condition are typically paid their full benefit amount until they are able to return to work or their condition improves.
Totally, permanently disabled
These workers generally receive the state’s full benefit amount on a monthly basis for the rest of their lives.
Each state has its own schedules and time limits regarding each of these conditions. Thus, as seen in the example where a worker in one state may receive a vastly different amount for the loss of an arm than a worker with the same injury in another state, workers from state to state, even with arguably the same condition, often receive greatly varying awards. For instance, workers with a permanent total disability in one state might receive weekly benefits equal to 200 percent of the state’s average weekly wage. However, similarly situated workers in other states, by contrast, would only receive at most 66-75 percent of their states’ average weekly wages.
State workers’ compensation laws do provide exceptions to the rule that workers injured on the job are entitled to compensation. Each state is different, but the exceptions may include:
- Disallowance of compensation for injuries caused primarily by intoxication or the influence of controlled substances. In fact, in some states an employer may require the injured worker to undergo a drug test. If the injured worker refuses to submit to a test, it is presumed, unless there is clear and convincing evidence to show otherwise, that the primary cause of the injury was the influence of drugs or alcohol.
- Denied compensation in those cases in which the employee’s injury results from his or her attempted suicide or homicide.
- Denial of compensation to employees injured during the commission of crimes while on the job.
- Disallowance of compensation for injuries at work that are the result of employees who are injured while engaged in horseplay on the job, for those leaving the employers’ premises, or for other deviations from employment without the employers’ express approval for deviation.
- Reduction of benefits in some states if the injury was caused by an incident in which the employee failed or refused to use safety appliances provided by the employer.
Generally, any injury occurring at work which is due to a traumatic incident, such as falling from a ladder, or that is due to cumulative factors, like injuries caused by repetitive motions, would be considered as arising out of employment. Illnesses created by the work environment, like medical conditions caused by exposure to chemicals, are also compensable. In general, any injury or illness that requires the worker to see a doctor or that results in disability or death qualifies for workers’ compensation benefits. A doctor must be able to verify that there is objective medical evidence showing that an injury or disease exists and that work exposure was the major cause.
Even injuries resulting from recreational and social activities are compensable if such recreational or social activities are an expressly required incident of employment, such as a company golf tournament, holiday party, or picnic and they produce a substantial direct benefit to the employer.
Generally, however, those injuries suffered while going to or coming from work are not considered to be arising out of and in the course of employment, even if the employer provides transportation, unless the employee is engaged in a special errand or mission for the employer. Finally, if an employee becomes an inmate of a public institution, states may deny benefit payments, except possibly to the employee’s dependents.
One of the original rationales for the establishment of workers’ compensation laws was to protect employers from the drastic effects of failing to provide safe work environments. Prior to the passage of such laws, employees who were injured due to their employers’ negligence sued the employers under traditional negligence or personal injury law. Under that system, if the employer was found negligent, the employee could recover not only medical expenses and lost wages, but also such damages as pain and suffering. The parties had a right to a jury trial and the awards in particularly egregious cases could be quite high against the employer. As the industrial revolution created larger and larger workplaces and the possibility of many more worker injuries, employers often became embattled defending against multiple workers’ personal injury claims.
Thus, workers’ compensation systems, which are generally considered no fault, were instituted, giving employees a trade-off of guaranteed and purportedly quicker, establishment of benefits, without concern for their own contributory negligence. The employers, on the other hand, gained immensely in that they no longer had to defend against numerous lawsuits since they were granted virtual immunity from lawsuits for their negligence. A determination as to whether the employer’s or the employee’s negligent behavior caused the problem is irrelevant. Some, who find workers’ compensation an uneven trade-off between employer and employee, argue that, under most state workers’ compensation systems, employers often do not have to worry about the cost of possible consequential injuries, even in cases where they are more than merely negligent. However, under certain circumstances in most states, there are injuries for which the employee may either sue the employer or a third party, as in the case of injuries resulting from faulty or defective equipment.
The catalyst for a fair and equitable system of workers’ compensation came out of the industrial revolution. As industrial activities increased both in Europe and in the United States, factories expanded and the occurrence of work-related injuries grew. Generally, the only recourse for workers injured on the job was to sue their employers in the courts. Eventually, court systems became overwhelmed by the flood of cases, resulting in long delays before workers realized any compensation for their injuries. Compensation was often insufficient and an award was in no way guaranteed. Many injured workers ended up with no income at all. Many of them were destitute and, along with their families, became a drain on state welfare systems. Furthermore, employers often found themselves completely embattled due to the glut of cases against which they defended.
Of the European nations, Germany was the initiator of a sort of workers’ compensation program when, in 1938, it passed laws providing compensation to railroad workers and passengers involved in railway accidents. In 1880, England provided a model for some of the first United States’ laws when the Parliament passed an act making employers responsible for injuries to workers.
The first state in the United States to pass an employers’ liability act was Maryland in 1902. Although later ruled unconstitutional, other states began passing legislation that passed constitutional muster. In 1911, Wisconsin passed the first workers’ compensation act, a precursor to present-day laws. It was just a matter of years for the rest of the states to follow suit. Currently, all states provide programs whereby injured workers receive medical care and disability income even when they are injured because of their own negligence. Employers are protected from potentially large losses by preset benefit schedules for injuries suffered by employees. The trade-off is that workers are prohibited from filing suit, while employers are obligated to pay mandated benefits.
States Provide Exclusive Remedy for Most Workers
For most workers injured on the job, state workers’ compensation programs are the sole option to obtain compensation for their losses. That compensation is generally only for medical expenses incurred because of injury or illness arising out of the job and for lost wages. Usually there is no provision for compensation to cover pain and suffering as there may be under general personal injury law. Furthermore, except for federally employed workers and in a very few specialized occupations, there is no federal law which regulates workers’ compensation programs. Thus, unlike other benefit programs like Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI), which are federal programs more-or-less uniformly applied across state lines, injured workers’ benefits vary widely from state to state.
Variations in Benefits
Because each state’s workers’ compensation laws developed out of that state’s own experience with injured workers, a workers’ compensation program in one state can be vastly different from a program in their neighboring state. Even burial expense benefit amounts range from approximately $2,000 in the state with the lowest benefit to approximately $10,000 in the state with the highest benefit. Some critics suggest that the only uniform features of the programs are insufficiency of benefits and high administrative costs.
Avoiding Workers’ Compensation Bureaucracy
The best way to prevent being caught in the bureaucratic web of workers’ compensation is to prevent injuries in the first place. To do that, workers should try to stay as alert and healthy as possible by taking care of themselves, getting enough sleep, and taking their offered vacations. Be sure that the employer keeps the workplace as safe as it can be by making repairs when needed. Run safety checks on equipment and replace defective tools and equipment. Most states require employers to have injury and illness prevention programs in which their employees may participate. Every state also has a contact number for reporting workplace safety issues.
However, there will always be workplace injuries, even in spaces not generally considered unsafe or hazardous. Thus, since every state has a workers’ compensation program, it is wise for workers to know their rights and responsibilities in the event they are injured. Upon injury, or in the event workers contract workplace illnesses, workers should be aware that every state has workers’ compensation attorneys experienced in their state’s workers’ compensation programs who can help guide them through the maze of regulations and fight for their recovery.