WILD WEATHER SITUATIONS LEAD TO INTERESTING CLAIMS…

We all have read about the situation at the Indiana State Fair.  A hot summer day, a large crowd, and a stage that clearly was not built appropriately for the new “normal” weather conditions and for the massive storms that we are facing in light of the changing climate.  The video of the stage crashing, and the heroic activities of the rescuers are compelling.  Then today, we see a similar tragedy take place in the Netherlands.  Again a massive storm and more deaths from a collapsing stage.

 As attorneys, our thoughts turn to who is responsible for these situations.  It certainly can no longer be said that massive storms are a surprise.  Everyone knew there was a huge crowd waiting at the Indiana Fairgrounds for this concert and lots of people knew a significant storm was approaching that area.  With the advent of Doppler radar, the movement of the storm can be tracked at the street level. 

 Who had the obligation to warn?  Who made the decision to erect the stage?  Who made this decision to let the crowd stay there when the dark clouds approached?  Like taking down a large tree, was there any consideration made to what would happen if the stage did collapse and in what way it should be engineered to fall?  Why did it fall into the crowd?

 The answer to these questions can lead to difficult investigation and will require careful consideration as to what approach should be taken.

 

AMA GUIDES…

AMA guides…

 The Iowa Work Comp Commissioner requires the ratings be given pursuant to the fifth edition of the “AMA Guides.”  Workers need to be alert for this problem and make sure that their rating is given pursuant to the fifth edition.

 What happens is that the insurance industry will ask the doctor to rate an injury based on the sixth edition of the AMA guides.  These guides are put together by a committee of doctors and insurance people sitting around the table at a high-priced resort and quibbling about how much money injured workers get.  Then the committee issues a new set of Guides, and claims that this “new and improved” version of the Guides is more fair than the previous version of the Guides.  The trend has been that each successive edition of the AMA Guides results in a lowering of the impairment ratings.  What was a 10% rating to the body in the AMA third edition can now be 5 – 8% rating to the body in the AMA sixth edition.  By lowering the number the worker receives for the exact same injury from the doctor’s rating you lower the amount of money the worker receives.  So it makes a difference which guide is used.

 Here in Iowa a committee of lawyers, insurance company representatives, and employer representatives has determined that the Fifth edition of the AMA Guide is the best measurement of disabilities that can be rated.  The Commissioner has demonstrated leadership in this area by stating that impairment should be given based on the fifth edition of the AMA Guides.  Make sure that is happening in your case.  Otherwise give us a call.

 

THE COMMISSIONER AND POLITICS…

The Commissioner and politics…..

Clients need to understand that “elections have consequences.”  In 2011 we are seeing that prove true in many areas including workers’ compensation cases.  In the last election the voters of Iowa bought into the “Tea Party” philosophy and voted out democratic majorities in the legislature and voted out the democratic governor.  In large part the defeat of the democrats was driven by the ongoing economic problems at the time of the election.

One consequence of the republican victory for the Governor’s office is that the new governor gets to pick his own team to head the various agencies.  The division of Worker’s Compensation is not such an agency.  The Commissioner of the work comp division serves a full six-year term specifically to avoid the influence of politics in the selection process.  But politics is a rough-and-tumble game and the current Republican governor is trying to force out Commissioner Chris Godfrey.  So far the governor has not provided any good reasons to remove the Commissioner which leaves everyone speculating that only bad reasons are behind the move to oust the current Commissioner.  Because the governor can’t actually replace the current Commissioner he instead cut the salary of the Commissioner by more than $36,000 and is trying to starve him out. 

Commissioner Godfrey has been even-handed in his official activity during his years as Commissioner.  The Iowa Association of Business and Industry does not object to him.  Likewise, the legislature in Iowa has unanimously confirmed him in the past.  He also received top marks in the review performed by the state government.  This makes no difference to our governor.  He has an agenda and he’s going to carry it out to the fullest degree.

So if you are reading this, and you have a workers’ compensation case in this state, think twice the next time you walk into the voting booth.  On the other hand, if your only goal is to weaken the rights of injured workers then … Congratulations!

 

MILEAGE UPDATE…

 Just to update the earlier discussion on the mileage, the Iowa Worker’s Compensation Commissioner has now increased the mileage reimbursement rate effective July 1, 2011 to 55.5 cents per mile.  This is tied to the IRS business rate but it is still a silly way to do this in light of rapidly rising fuel prices.

 

THE PRICE OF DOING BUSINESS…

One aspect of our representation is to advance the “cost” of litigation.  This means as expenses come up in the case, we pay it.  Understanding cost is important to understanding the commitment that is being made by the attorney on behalf of your case.  Some attorneys refer to this advancing of cost as a “loan” on your case.  This is not really accurate for our firm as we do not charge any interest on the monies we advance, but it does demonstrate the process that goes on.  The attorney pays the cost as it comes due, and then deducts the cost from the clients two thirds share at the end of the case.

Here are a couple examples about cost:

1)  In a modern workers compensation case we have to pay $100 simply to file your case.  In the future this will be done electronically and it will become even more cumbersome and tricky.  We expect additional fees will likely be tacked on to that filing system.  You can serve a work comp lawsuit on the insurance company and employer by mail.  But each active service generally ranges between $5 and $10 per mailing.  Again this is advanced by the attorneys.

2) In a personal injury case the state District Court requires $185 for the paperwork to be filed.  These types of cases generally require personal service which can add another $65 – $100 per person served to the process of getting the case on file and served.

Things like postage, copier, acquiring medical bills, and conferences with the doctors are other types of expense which we advance.  Believe it or not, some doctors will charge $700 just for a 15 min. conference.  They do it because they can get away with it.

Most clients don’t think about the actual cost involved in the handling of a file, but costs do mount up, and can be a substantial investment first by the attorney, and ultimately by the client at the time of settlement.

 

SO MUCH PER MILE….

So much per mile….

In a workers’ compensation case it is important to think about mileage reimbursement.  The problem is that the price of gasoline seems to trend upwards on a weekly basis, with only a slight dip down every once in a while.  This puts the worker at a real disadvantage because while the gas prices rise rapidly, the Industrial Commissioner does not allow you to be reimbursed based on the realistic cost.  Instead, once a year the Commissioner looks at the statistics in June and picks a gas price for the next 365 days.  Here’s a link to the Commissioner’s website that will show you the current reimbursement rate: 

http://www.iowaworkforce.org/wc/newsandupdates.htm (In 2010 the rate is $.50 per mile)

This is why it’s a smart idea to talk with us about changes in the gas mileage reimbursement system.  In this era of declining oil production worldwide, and the resulting increase in gas prices, it seems reasonable to take the position with the insurance carriers that the reimbursement rate should be adjusted regularly, not just once a year.  With a flexible approach to reimbursement the insurance industry will benefit as well.  If the price of gas dips dramatically (what do you think the chances are of that?) then the insurance company would benefit from a flexible plan as well.  As with many things in work comp it seems unfair to make the worker wait one year to receive the compensation based on factors that the worker cannot control.

 

DON’T WAIT…GATHER EVIDENCE

Today I am thinking about the problems our clients have with the failure to gather evidence early in the case.  You can’t imagine the number of times a person who did absolutely nothing wrong in the accident says “no, I didn’t take pictures or get the names of the witnesses who stopped to help me.  Don’t the police do that?”    The answer is no.   If you don’t help yourself nobody else will.

Collecting and preserving evidence is critical to an injured person’s ability to receive justice through our tort system.  We live in a time when injured victims must prove all aspects of their case, even the obvious aspects.  If you delay gathering evidence and simply depends upon the insurance company, or law enforcement, to gather evidence serious harm can be done to your case.  Whether you have a personal injury, or work comp situation important items of evidence would include:

1.         Taking photographs of the accident scene.

2.         Taking photographs of both vehicles.

3.         Photographing your injuries, if visible.

4.         Taking statements from the other party.

5.         Taking statements from witnesses.

6.         Larning about the law that will control your case.

7.         Documenting  your wage loss.

8.         Starting the process of collecting your medical bills.

9.         Getting reasonable and necessary medical care for your injuries.

Although this list looks simple, in practice, it is hard to do a complete job when gathering evidence.  Taking statements and photographing vehicles require that you know what you are doing.  So give us a call if you have questions about what you should be doing.  The call is free.

 

ELECTRONIC COURTHOUSE

Soon Iowa will see the arrival of electronic filing for work comp and personal injury cases.  In a personal injury case electronic filing is already required in Plymouth and Story County as of 2011.  The Work Comp Commissioner’s office is likely to move to electronic filing in the near future.  This promises to bring a whole new set of headaches.

First, you have to know the forms.  Second, you have to know where to get the forms and how to get them filled out.  Third, you have to know which hoops to jump through when using the Internet to get your case properly filed.  This will be a challenge for all law firms and will be doubly challenging for an individual.

The move to electronic filing will likely increase the need to use an attorney to make sure that things are done properly, and are done in a timely manner.  The day of being able to wait till the last second to file a lawsuit is practically gone for an individual.  Some law firms will still be able to do this but only if they are “online” and ready to go.  The best advice here is that if time is short… hire a lawyer!

 And remember, the lawyer isn’t obligated to help you just because you waited till the last second.  So plan ahead, and be smart.

 

MANAGING MEDICARE’S MONEY

Understanding the role of Medicare, and other state/federal benefit programs is practically a full-time job. Here in our office the heads are spinning, and the eyes are watering by the time we think we have a plan in mind that helps protect the interest of the government, and the clients. What you have to understand is that work comp insurance companies are ruthless in trying to get off the hook for the obligation to take care of future medical expense. Those insurance companies will do anything to get the injured worker to take on the administration, payment, and reporting requirements to the federal government on cases that have been settled.

Why the insurance companies are this way is a mystery to most workers. But if you think about it, it’s not hard to understand. It boils down to more than simply paying for future medical care. Someone has to look at the bill as it comes in. Someone has to decide to pay the bill. Someone has to then write a check. Someone has to mail the check. Someone has to make a record of what has happened. Someone then has to keep track of those records, receipts, or other information pertaining to the payment. Finally someone has to report the details of what happened to the money to the satisfaction of the government. All of this costs money. Lots of money.

Recently we looked in a case where the insurance company stated the minimum cost for maintaining a future medical account where only prescription medication was involved would be $2500 per year. Doesn’t sound like very much when you think about it that way, does it? However, if the injured worker is 26 years of age this expenditure will cost more than $100,000 just to keep track of the numbers and paperwork during the estimated lifetime. Trust me, an insurance company is highly unlikely to pay you $100,000 even if you’re willing to take on that work and accompanying risk. They think most lawyers and injured workers are blinded by money and won’t consider the cost of administering the account.

An injured worker should be very careful before taking on this challenging task. It’s basically the same as trying to prove up expense account items for an over the road truck driver at tax time. There’s a bunch of Mickey Mouse record keeping, organizing, and reporting that will drive most people crazy.

 

A LITTLE BIT OF KNOWLEDGE IS A DANGEROUS THING…CALL US!

Ok, you’ve made it to the LLDD.LLP blog.  As we embark on this challenge of blogging the reader needs to understand that we offer this information as very general advice on topics that we find interesting.  None of it may help your case, or it might be just what you are looking for.

We hope you use this blog to generate questions and to think about your case.  Only by sharing information with each other can we hope to move forward on a given case.