Choice of Jurisdiction in a Workers’ Compensation Claim

Apr 25, 2019 | David Snyder

In Maryland, we are fortunate to have multiple, major metropolitan areas within a short distance of each other. Because of the unique nature and location of the District of Columbia, there are many Maryland residents who work in either Washington, DC or Virginia and there are many employees of Maryland companies who reside in either of these other two jurisdictions. This often leads to situations in the workers’ compensation context where the laws of two or more jurisdictions may apply and an injured worker may be able to choose where to file a workers’ compensation claim. Despite the close geographic proximity of Maryland, DC and Virginia, the three workers’ compensation systems have significant differences which must be understood when attorneys are advising their clients of the most beneficial jurisdiction for filing a claim. This article focuses on determining the possible jurisdictions for filing a claim and determining which is the best for a client, based upon some of the differences in the laws of Maryland, DC and Virginia.

I. Jurisdiction and Barring of a Claim

As attorneys, we have an obligation to advise our clients and potential clients on the best course of action in their case. In a workers’ compensation claim, this should start with assessing the different jurisdictions where to a claim could be filed and then proceed to an evaluation of the possible benefits or drawbacks of each. This analysis must start with an understanding of the bases for jurisdiction under Maryland, DC or Virginia law. Because each jurisdiction has its own workers’ compensation laws and each was drafted independently from the other at different points in time during the last century, the jurisdictional rules vary. In addition, it is important to note that the filing of a claim in one jurisdiction may forever bar the filing of that claim in another jurisdiction in the future.

A. Bases for Jurisdiction

Maryland provides that an injured worker is covered under the Maryland Workers’ Compensation Act if he is either injured within the state of Maryland; injured while working outside of the state on an incidental, casual or occasional basis as long as he is regularly employed within the state; or is injured while working outside of the United States as long as the contract for hire was made in Maryland for work to be performed wholly outside of the United States.1 Although the Maryland Act provides that an injured worker is covered while working within the state of Maryland, this general rule does not apply if the employment in Maryland was temporary or intermittent, the injured worker and employer are not Maryland residents, the contract for hire was not entered into in Maryland, the employer has provided workers’ compensation coverage in another jurisdiction and the other jurisdiction both recognizes the extraterritorial provisions of the Maryland Act and has its own similar exemptions.2 In one of the few cases to actually parse out this last provision of the Act, the Court of Appeals of Maryland determined that a Virginia resident working for a Virginia employer in Maryland on a temporary basis was covered by Maryland’s Act because Virginia had no reciprocal provision (i.e. Virginia would have covered a Maryland resident working for a Maryland employer and injured under similar circumstances).3

Although the District of Columbia states the bases for jurisdiction in its Act, these bases have been, in large part, elaborated upon and expanded by the case law. Nonetheless, the starting point of any workers’ compensation analysis should always be with the text of the Act itself. The District of Columbia Workers’ Compensation Act provides jurisdiction when the injured worker was injured in the District of Columbia as long as they performed work for the employer in the District of Columbia4, or if the injury occurs outside of the District of Columbia but the injured worker’s employment was “principally localized” in the District of Columbia.5 It is this second provision, specifically the definition of the terms “principally localized,” that has led to the most significant litigation.

For injuries occurring outside of the District of Columbia, the DC Court of Appeals applies a three-pronged test that considers: 1) The place(s) of the employer’s business office(s) or facility(ies) at which or from which the employee performs the principal service(s) for which he was hired; 2) If there is no such office or facility at which the employee works, the employee’s residence, the place where the contract is made and the place of performance; or

3) If neither (1) nor (2) is applicable, the employee’s base of operations.6 The Court, in Hughes, did not announce a bright-line percentage rule for determining where principal service(s) were preformed and certain caveats apply. However, the Court ultimately determined that Mr. Hughes, who was a mechanic for the Washington Metropolitan Area Transit Authority who spent 60-70% of his time in Virginia, was not entitled to claim compensation in Washington, DC under these criteria. In a subsequent case involving a player for the Washington Capitals, the Court found that a  professional hockey player’s employment was principally localized in the District of Columbia based upon the fact that “the Capitals’ business is locally oriented and its relationship to the District no mere matter of convenience: its principal purpose, as the ALJ found, is to play hockey games, more of which it plays in the District than in any other jurisdiction.”7 The case law is still in flux and at least one case is pending before the District of Columbia Court of Appeals for additional clarification as to when injuries occurring outside of the District can fall under its jurisdiction.

Virginia has jurisdiction over an “injury by accident” or an occupational disease occurring within the Commonwealth.8 In addition, injuries occurring outside of the Commonwealth are covered under the Virginia Workers’ Compensation Act if the contract for employment was made in Virginia and the employer’s place of business is in Virginia, as long as the contract for employment was not expressly for work performed entirely outside of Virginia.9 The Virginia Workers’ Compensation Commission and courts have attempted to administratively and judicially restrict what constitutes an “injury by accident” in recent years and have held that the “actual risk” test is applicable in determining whether an injury arose out of and in the course of employment; the “actual risk” test holds that an injury is compensable if the employment subjected the injured worker to the particular danger that brought about the injury.10

B. Exclusivity of Making a Claim

Of the three local jurisdictions, only the District of Columbia law holds that a claim cannot be filed in DC if an injured worker has made a claim and received compensation for the same injury elsewhere. Specifically, the DC Workers’ Compensation Act states that, “No employee shall receive compensation under this chapter and at any time receive compensation under the workers’ compensation law of any other state for the same injury or death.”11 This means that an injured worker cannot have lawfully received benefits under the laws of another jurisdiction, whether it be Maryland, Virginia or elsewhere and later file and maintain a claim in the District of Columbia.12 In no scenario, however, is the employer permitted to select a forum for a claim which is binding on the injured employee.13

Although the Court of Appeals in Springer held that an injured worker did not have to file a claim and receive benefits under the laws of another jurisdiction, Maryland presents an interesting scenario. In Maryland, a self-insured employer or an insurance company cannot pay an injured worker’s benefits until a claim has been filed by the injured worker.14 Therefore, unless an injured worker has both filed a claim in Maryland and been paid benefits, Maryland has not exercised jurisdiction and a claim can still be filed and maintained in the District of Columbia. By contrast, Virginia is a voluntary payment jurisdiction, meaning that a self-insured employer or insurance company can pay benefits without an order; if the injured worker receives a check for and cashes the check for those benefits, then they are forever barred from maintaining a claim in the District of Columbia.

II. Differences in Average Weekly Wage and Compensation Rates

When determining the best jurisdiction in which to file a claim, especially for an injured worker who holds multiple jobs or is a high wage-earner, it is of the utmost importance to ensure your client receives adequate compensation while recovering from his or her injuries. Unfortunately, a work injury that results in an extended period of disability is invariably going to set an injured worker and her family back financially, so it is our duty to mitigate that setback as much as possible.

A. Maximum Compensation Rates

Because each jurisdiction employs its own manner of calculating an injured worker’s average weekly wage and determines its own maximum compensation rate applicable for any injured worker within the jurisdiction, it is important to be aware of the general method of calculating average weekly wage/compensation rate as well as the maximum rates, particularly when representing a high wage-earner. This article will not address the intricacies of the various methods of average weekly wage calculation in each jurisdiction (although I would be happy to discuss them ad nauseum), but will provide the basics. Maryland, the District of Columbia and Virginia each employ their own calculation methods for determining an injured worker’s average weekly wage and resulting compensation rate (i.e. the rate at which disability benefits are paid under the law). Being aware of these numbers is important when advising clients as to the potential benefits available to them under the law as well as the value of their case, thereby allowing the client to make an educated choice as to the proper jurisdiction for a claim.

Maryland generally considers the wages earned during the 14 weeks immediately preceding the work injury.15 Maryland determines the maximum compensation rate on an annual basis, based upon the State Average Weekly Wage and publishes these figures.16 In 2019, the maximum compensation rate for temporary total disability benefits is $1,116.00 per week.17 This rate is scaled down for permanent partial disability benefits based upon the different “tiers” employed by Maryland for calculation of permanent partial disability benefits.18

DC considers the wages earned during the 26 weeks immediately preceding the work injury.19 The District of Columbia also determines the maximum compensation rate on an annual basis, also based upon the Average Weekly Wage of all non-governmental (either DC or federal) employees in the District and publishes these figures.20 In 2019, the maximum compensation for any type of compensation benefits is $1,521.74 per week.21

Virginia considers the wages earned during the 52 weeks immediately preceding the work injury.22 Virginia also determines the maximum compensation rate on an annual basis, in July, also based upon the wages of all employees except for those employed by the United States government and publishes these figures.23 From July 1, 2018 until June 30, 2019, the maximum compensation rate for any type of compensation benefits is $1,082.00.24

B. Wage Stacking

In the District of Columbia, injured workers are entitled to “stack” their wages for purposes of the calculation of workers’ compensation benefits.25 This means that injured workers who are working at two or more jobs at the time of their injury are entitled to be paid based upon lost wages from both jobs. The law makes no distinction in terms of how much injured workers are entitled to be paid depending on which of their two jobs they were performing when injured. In other words, even if someone is injured while working at a job that pays $100.00 per week and the injury prevents him from also working at his job that pays $1,000.00 per week, he can still “stack” his wages.

One of the published decisions on this point involved a client who was working two jobs at the time that she was injured.26 She was working in the District of Columbia for the employer where she injured her shoulder and she also had a part-time job working for a different employer.27 When she was originally injured, her employer was still able to provide her with modified work so that she could continue earning an income.28 Her part-time employer, however, could not provide work within the physical restrictions that her doctor imposed on her.29 Actually, her doctor restricted her from working at her part-time job because he was concerned that she would over-exert her injured shoulder.30 As such, her employer correctly began to pay her wage loss benefits based upon the partial loss in her total, stacked wages that she sustained.31 However, at a certain point in time, the client then injured her other shoulder and the originally-injured shoulder got worse while she was in physical therapy.32 At that point in time, her employer was no longer able to provide modified work for her.33 When that happened, her employer should have begun paying her full temporary total disability benefits based upon the wages she was now losing from both of her jobs. The employer and their insurance company disagreed, and we had to go to a hearing before the Office of Hearings and Adjudication.

The District of Columbia Court of Appeals heard this matter of first impression following an appeal to the Compensation Review Board.34 In response to the employer’s argument that the Court would somehow create confusion and a conflict of legal principles if it found the client was entitled to total disability benefits for both jobs, the Court of Appeals stated, “A legal paradox is not created by this decision. It is permissible to have two separate awards attributable to one injury because there are two separate jobs—and earnings—being affected by one injury. One injury can impact a person’s concurrent earnings differently because of differing job responsibilities—the examples are infinite.”35 Basically, the court implicitly recognized not only that people work different jobs that can be impacted by a work injury, but also that people who are working two different jobs may have vastly differing job responsibilities at each job.

Unfortunately, this is a key area of the law where Maryland and Virginia are lacking. In Maryland, injured workers cannot stack their wages. So, if someone is injured while working at her part-time job and misses time from a much more lucrative full-time job, the state of Maryland has determined that they are out of luck and just has to deal with the very limited income replacement benefits to which she would be entitled at her part-time job. Virginia has essentially a “middle ground” law between DC and Maryland. In Virginia, injured workers can only stack their wages if their second job is similar to the job at which they are injured.36 Virginia and Maryland simply are not grounded in the realities of modern employment and are doing their citizens who sustain work injuries a massive disservice by failing to require that they be compensated for lost wages at both jobs.

III. Permanent Partial Disability Benefits

All of the jurisdictions permit injured workers to receive temporary total disability benefits during the period of their recovery (with certain limitations in Virginia) when they have a total loss of earning capacity or wages, temporary partial disability benefits during the period of their recovery when they have a partial loss of earning capacity or wages and permanent total disability benefits (with certain limitations) if they are unable to ever work in any gainful employment. These benefits are largely the same in all three jurisdictions. The most significant differences in computation and availability of benefits appear in the area of permanent partial disability (“PPD”) benefits. Because attorneys and clients are often focused on the end-game of a case and because the vast majority of injured workers do return to work in some capacity, the type and amount of permanent partial disability benefits are also an appropriate consideration.

DC permits two types of PPD benefits: those involving wage loss and those to a “scheduled member” (defined as an arm, hand, finger, leg, foot, toe, eye, ear or vision or hearing).37 An injured worker is entitled to compensation for total or partial loss of a “scheduled member” after reaching maximum medical improvement if there is some impairment to that part of the body.38 PPD benefits can be paid for permanent disability to a scheduled member even if the injury itself is nonscheduled (i.e. to the head, neck or back) because the situs of the disability that controls, not the situs of the injury.39 Permanent partial disability is determined, in large part, based upon the opinion of a medical expert in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment as well as the “Maryland five factors” of pain, atrophy, weakness, loss of function and loss of endurance.40 In other cases, wherein the injured worker has injured a non-scheduled part of the body, the injured worker is entitled to compensation based upon permanent loss of earning capacity.41 This is calculated either: at the time the injured worker returns to work or achieves maximum medical improvement and is the greater of the difference between the pre-injury average weekly wage and the wages of the new job at the time of the injury; or, the difference between the wages of the new job at the time the injured worker returns to work and the wages the injured worker would have been earning at that time had they continued to work in the pre-injury employment.42 One final important note is that, unlike in Maryland and Virginia, an injured worker can not receive PPD schedule loss benefits and thereafter receive temporary total disability benefits, absent extraordinary circumstances (e.g. an amputation).43

In Maryland, an injured worker is similarly entitled to PPD as of the time of reaching maximum medical improvement if they have some permanent impairment.44 Similar to DC, Maryland also differentiates in some regard between scheduled and non-scheduled disabilities, with the scheduled members being the same as those in DC and also including the nasal septum.45 Maryland, unlike DC, also allows for a physician to rate the non-scheduled body parts and permits an award of permanent partial disability benefits regardless of wage loss (though loss of industrial use is considered under this portion of the Act).46 As in DC, Maryland considers the medical impairment as rated by a physician using the American Medical Association Guides and the “Maryland five factors” as outlined supra.47

In Virginia, an injured worker is also entitled to PPD, but only for a scheduled member injury.48 Unlike DC and Maryland, neither a physician nor the Commission is required to use the American Medical Association Guides to evaluate the permanent impairment, because an impairment does not need to be determined by any set of guidelines, tables or other measuring tools.49 In addition, Virginia does not recognize the use of the “Maryland five factors,” though it seems possible they could be implicitly or explicitly considered in line with the above standard.50

IV. Conclusion

Clients and potential clients often have jurisdictional choices to make following a work injury. By being knowledgeable about the differences in employees’ right to compensation in Virginia, Maryland and DC, you can better advise them about what you believe is the most beneficial jurisdiction. My colleagues and I are always happy to lend an ear or some advice as well.

Biography: David M. Snyder practices personal injury law at CHASENBOSCOLO Injury Lawyers. He is licensed to practice law in Maryland and the District of Columbia and intends to be licensed to practice law in Virginia in 2019. He focuses his practice on representing only injured workers in workers’ compensation cases in Maryland, the District of Columbia and before the U.S. Department of Labor in Longshore and Harbor Workers’ Compensation Act/Defense Base Act/Non-Appropriated Funds Instrumentalities Act cases. He also represents his clients in third-party negligence cases arising out of work injuries in these jurisdictions. CHASENBOSCOLO represents injured victims in Maryland, the District of Columbia and Virginia and has offices in Greenbelt, Maryland; Waldorf, Maryland; Falls Church, Virginia; and a new office in Baltimore, Maryland.

Endnotes
1 Md. Code, Lab. & Empl. § 9-203(a).
2 Md. Code, Lab. & Empl. § 9-203(b)(1).
3 Janet’s Cleaning Service v. Roynon, 311 Md. 686, 696 (Md. App. 1988).
4 D.C. Code § 32-1503(a).
5 Id.
6 Hughes v. D.C. Dep’t of Employment Servs., 498 A.2d 567, 569 (D.C.
1985).
7 Lincoln Hockey v. D.C. Dep’t of Employment Servs., 997 A.2d 713, 718
(D.C. 2010).
8 Va. Code Ann. § 65.2-101.
9 Va. Code Ann. § 65.2-508.
10 The Southland Corp. v. Parson, 338 S.E.2d 162, 163 (D.C. 1985).
11 D.C. Code Ann. § 32-1503(a-1).
12 See, e.g., Springer v. D.C. Dep’t of Employment Servs., 743 A.2d 1213
(D.C. 1999).
13 Washington Metro. Area Transit Auth. v. D.C. Dep’t of Employment
Servs., 825 A.2d 292, 296 (D.C. 2003).
14 Code of Md. Regs. 14.09.06.01.
15 Code of Md. Regs. 14.09.06.03.B(1).
16 Maryland Workers’ Compensation Commission, Maryland Workers’ Compensation Rates, https://www.wcc.state.md.us/Adjud_Claims/
Comp_Rates.html (last visited March 14, 2019).
17 Maryland Workers’ Compensation Commission, Maximum Rate of Benefits for Calendar Year 2019, https://www.wcc.state.md.us/PDF/ Rates/2019.pdf (last visited March 14, 2019).
18 Id.
19 D.C. Code Ann. § 32-1511(a)(4).
20 District of Columbia Department of Employment Services, MaximumMinimum Compensation Rate/Supplemental Allowance, https://does.dc.gov/publication/maximum-minimum-compensation-ratesupplemental-allowance. (last visited March 14, 2019).
21 Id.
22 Va. Code Ann. § 65.2-101.1.a.
23 Virginia Workers’ Compensation Commission, Virginia Workers’ Compensation Commission Chronological Compensation Benefits Chart, http://www.vwc.state.va.us/sites/default/files/documents/Rates-MinMax-COLA-Mileage.pdf (last visited March 14, 2019).
24 Id.
25 MCM Parking Co. v. D.C. Dep’t of Employment Servs.¸ 510 A.2d 1041, 1044 (D.C. 1986)
26 See, generally, Providence Hospital v. D.C. Dep’t of Employment Servs., 163 A.3d 115 (D.C. 2017).
27 Id. at 118.
28 Id.
29 Id.
30 Id.
31 Id.
32 Id.
33 Id.
34 Id. at 120.
35 Id.
36 County of Frederick Fire & Rescue v. Dodson, 457 S.E.2d 783 (Va. 1995).
37 See, generally D.C. Code Ann. § 32-1508(3).
38 D.C. Code Ann. § 32-1508(3)(A)-(U).
39 Wash. Metro. Area Transit Auth. v. D.C. Dep’t of Employment Servs., 683
A.2d 470, 474-5 (D.C. 1996).
40 D.C. Code Ann. § 32-1508(3)(U-i).
41 D.C. Code Ann. § 32-1508(3)(V).
42 Id.
43 Cherrydale Heating & Air Conditioning v. D.C. Dep’t of Employment
Servs., 722 A.2d 31, 32 (D.C. 1998).
44 Md. Code Ann., Lab. & Empl. § 9-625.
45 Md. Code Ann., Lab. & Empl. § 9-627(b)-(j).
46 Md. Code Ann., Lab. & Empl. § 9-627(k).
47 Md. Code Ann., Lab. & Empl. § 9-721.
48 Va. Code Ann. § 65.2-503.
49 Choudhary v. Fairfax Co. Pub. Sch., JCN VA00000199617 (July 6, 2016).
50 See, id.


Safety Never Takes a Snow Day: How to protect yourself and your loved ones during winter storms

Mar 19, 2019 | Tom Teodori

Some view a blanketing of snow as a welcome occurrence while others as an annoying disturbance.  Regardless of your viewpoint, snow and ice frequently result in workplace injuries or negligence claims. In 2014, more than 42,000 people were hurt on the job in snow and ice related accidents. These injuries often result in lost time from work and the need for medical treatment. The most common injuries are traumatically caused from slipping and falling, or are exertional injuries from snow removal. These injury categories may be very broad, but often involve strains and sprains to the neck and back, broken bones, concussions, joint injuries to the knees, hips or shoulders, spinal injuries and/or heart attacks. Although snow and ice related injuries affect all age categories, the elderly are particularly susceptible.

If you were injured while working due to weather related conditions, you may be entitled to workers’ compensation benefits. The District of Columbia, Maryland, and Virginia have distinct laws when it comes to workers’ compensation so knowing and being advised of your legal rights is important. For more information on those rights, check out David Kapson’s recent blog post.

How can I stay safe while walking in wintry weather?

The National Center for Injury Prevention and Control, a division of the Centers for Disease Control and Prevention (CDC), reports that falling is the leading cause of non-fatal injuries for those 24 years and older. So in order to protect yourself while walking on snow covered or icy sidewalks and parking lots, you should be mindful of the following:

  • If you do not have to go out, the best way to stay safe is to stay at home to allow snow and ice removal teams to do their job.
  • If you have to go out, please be patient with the working men and women who are cleaning up our communities. Here are a few suggestions:
    • Don’t rush. It’s normal to want to get inside and warm up, so people often are hurrying to get out of the unpleasant weather conditions. However, its safer to take it slow and use flat footed and small steps – almost like a penguin. Stay on cleared or treated walkways and avoid untreated shortcuts.
    • Wear proper footwear for the conditions – avoid heels and smooth soled shoes.
    • Stay off your phone, watch where you are walking, and try to avoid carrying heavy loads.
    • Be very careful stepping on or off of curbs, as well as getting in and out of cars.
    • Be mindful of areas that have been subject to refreezing and particularly black ice.

Following these suggestions should help keep you safe. But, if you are being as careful as you can be and you still fall and are injured, the laws in the District of Columbia, Maryland, and Virginia protect you. If this happens, it is important that you speak with a trial lawyer who is experienced in handling slip and fall cases.

How long do property owners have to clear sidewalks after a snowstorm?

The simple fact that you fell and are injured does not mean that person who owns the property is responsible for taking care of your medical expenses, lost wages and potentially life changing injuries.

In D.C., property owners are required to clear the sidewalks within 8 daylight hours of a snowstorm. Both businesses and homeowners face fines for not clearing sidewalks.

Maryland does not have a statewide snow removal law. The safety rules for snow removal are set by the individual counties. Montgomery County requires property owners to perform snow removal within 24 hours. Property owners in Prince George’s and Howard Counties have 48 hours to complete snow and ice removal. Charles County has no safety rules requiring property owners to shovel snow and clear ice from sidewalks.

Virginia also leaves the snow and ice removal safety rules to the local governments. The City of Alexandria requires snow clearing within 24 to 72 hours depending upon the severity of the storm. Arlington’s snow and ice removal rules allow 24 to 36 hours depending upon the severity. Neither Fairfax County or Prince William County have safety rules for snow and ice removal.

Who is responsible?

While the law is designed to protect our communities and its members, actually holding the person who caused the injury can be very tricky for multiple reasons:

Both businesses and homeowners have insurance to protect them if someone is hurt by their negligence or irresponsibility with snow and ice removal. But insurance companies employ armies of lawyers whose job it is to protect the insurance company’s money. They know all of the tricks that can be used to avoid having to pay for an injured person’s medical expenses, lost wages and life changing injuries. When an injury in a fall changes your life, you need to talk with a trial lawyer who has actually gone to court in these kinds of cases to have a fighting chance against the insurance company’s lawyers.

Here are a few of the legal tricks that insurance company lawyers use:

  • First, the insurance company will say there’s nothing the business or homeowner could have done to prevented the fall or the resulting injuries. This is simply not true. An experienced trial lawyer will know how to show all of the steps that a responsible property owner should’ve taken in order to prevent ice and snow from creating the risk of a fall; much less the fall that actually happened.
  • Second, the insurance company’s lawyer will argue that the business or homeowner did not know that there was a dangerous condition on their property. This argument stops many innocent people from being protected since proving that the property owner had notice requires very specific evidence. Again, an experienced trial lawyer will know how to fight the insurance companies tactics and find the evidence needed.
  • Finally, and most dangerously, is contributory negligence. The District of Columbia, Maryland and Virginia are three of the five states in the United States that still follow the rule of contributory negligence. What this means is that if the insurance company’s lawyer shows that the injured person was 1% at fault for the fall, the property owner is not responsible to pay for the injuries.

Beware of Recorded Statements

When someone in our community is injured by a property owner’s choice not to follow the snow and ice removal safety rules, one if the first things that happens is the injured person gets a phone call from a representative of the property owner’s insurance company. The insurance company will tell the injured person that they need to take a statement to set up the claim. Do not give a statement. That statement will give the insurance company lawyer all the ammunition they need to shoot down your claim.

How do I stay safe while driving during winter storms?

People who are not able to stay at home during winter storms frequently have to drive. But driving in winter conditions is more dangerous than trying to cross slippery sidewalks and parking lots on foot. According to the National Highway Traffic Safety Administration (NHTSA), 17% of all vehicle crashes are caused by winter weather conditions. Each year more than 1,300 people lose their life in snow and ice related vehicle crashes. In addition, more than 116,000 people annually are injured in snow related crashes.

If you can stay off the roads, you should do so.

But, if you have to leave your home, here are a few suggestions to keep you safe while you are driving to protect both yourself and those on the road around you:

  • Make sure your vehicle is winterized, and that you have appropriate clothing and supplies in the event something goes wrong.
  • Since everything takes longer on snow covered roads, remember to accelerate, brake and turn slowly. Give yourself and your vehicle time to safely respond.
  • Double your following distances.
  • Try to avoid stopping on hills. Maintain some momentum in order to prevent getting stuck.
  • Try to avoid coming to a complete stop. If you can slow down enough to keep rolling, you will lesson the chances of getting stuck.
  • If all else fails, be mindful that if its not necessary, don’t go out until government crews have safely treated the roads.

If you are injured by an irresponsible driver during winter weather conditions, the laws of District of Columbia, Maryland and Virginia will protect you. The irresponsible or negligent driver is required to pay for your medical expenses, lost wages, and interruption in your life that they cause.

We all know that the drivers on the roads in our community are covered by insurance. If you are injured in a car wreck during winter weather conditions, you should talk to a trial lawyer who has a track record in court with these kinds of cases. Many people believe that making a claim for injuries in a car wreck will cause their insurance bills to go up. This is not true. Only the person who causes the wreck will pay higher insurance bills.

How Insurance Companies Protect Irresponsible Drivers in Winter Weather Crashes

Just like in fall cases, drivers who do not follow the traffic safety rules are protected by insurance companies and their armies of lawyers. Everything the insurance company says to you and asks you to do after a wreck is carefully planned. The plan is designed to make sure the insurance company lawyer can make the injured person look like a liar, a faker or a fraud at trial. Do not talk to the insurance company without getting legal advice first.

Just like in slip and fall cases, there are legal defenses that relate to winter weather conditions that can be used to protect drivers who do not follow the traffic safety rules – and their insurance companies’ wallets. Two of these defenses are the “sudden emergency doctrine” and contributory negligence.

An insurance company will argue that winter weather conditions create “sudden emergencies.” They will say that these emergencies make car wrecks unpreventable. But this is simply not true. If the injured person gives the insurance company a recorded statement, one of their goals will be to gather facts from that person that can be used in court to prove that the injury was the result of an unpreventable sudden emergency. At CHASENBOSCOLO, our trial lawyers that fight insurance companies in court and know how to stop the insurance lawyer from using this trick to avoid accountability.

Contributory negligence in a car wreck cases is the same as in a slip and fall case. What this means is that if the insurance company’s lawyer shows that the injured person was 1% at fault for the wreck, the irresponsible driver gets a pass for the injuries they caused. Again, this is why its important to talk to an attorney before you talk to the insurance company, even if its just to know your rights.

Winter weather can be very dangerous, especially when people behave irresponsibly. Thinking about the dangers is the first step of protecting ourselves and our loved ones from life changes injuries. No matter how careful we are, the choices other people make can cause life changing injuries. If that happens, its important to know your rights and your legal options. This doesn’t just help you get justice, but it helps make our communities safer by making it clear that property owners and drivers who take a snow day on the safety rules won’t get a pass. If you’ve been hurt as a result of someone else’s irresponsible actions in the snow, contact CHASENBOSCOLO for the experienced legal representation you deserve. Call (301) 220-0050 to set up your free consultation today.


What you don’t know CAN hurt you

Image

Jan 04, 2019 | Shaketta A. Denson

The United States is one of a hand full of countries that trusts its citizens to self-correct by allowing a jury of their peers to sit and come to an agreement when there is a dispute between parties. It is a system that goes back to Ancient Athens 900-146 BC, when a process called “Diskastai” was used to ensure that people could not select jurors for their own trials. The bigger the issue, the larger the group of Diskatai were used. This has trickled down to the justice system that we all know and love. Now, we get that magic notice in the mail summoning us to sit in a room for 8 hours praying that we won’t get picked.

Our justice system, while not perfect and sometimes an inconvenience is something of a marvel. Having a collective of folks from our neighborhoods and communities coming together to set the standards for safety and behavior that we want is special. However, despite the fact that most folks by age 30 have been selected or summoned for jury service, they do not know a lot about how it works. Jury trials have a mystery to them that is confounding not only the lucky souls picked for duty, but also to those on either side of the issue. As a practicing trial attorney, I am often confused, confounded and alarmed at the things that we can and cannot say and do during a civil trial. It’s not something that they teach you in law school. There they build our jury system up on the foundation of justice and truth and that every person: man, woman and child is equal before the law. The most important thing we are taught is the search for the truth the search for that which is hidden. That all things in the dark will come to light. The reality however, is that there are several things you, as juror, are not allowed to know. Things that the mighty decision makers from on high, the judiciary, have decided are not worthy of your consideration. The system has begun to take for granted the intelligence of the modern juror and their ability to decipher the good, the bad and the ugly. My mother taught me that ALL information is good information and, in that vein, I share this information with you.

Insurance is the name of the game

When a person is injured in a car crash, slip and fall, or any kind of incident that results from someone else’s actions, they have the opportunity to file a civil action. That civil action, or lawsuit, is based in what we call negligence or tort. A tort is a wrongful act or infringement on the rights of another. The injured person files a claim against the person who injured and becomes a Plaintiff. By filing that suit, the legal system ensures and that this is the last time that the “wrongdoer” or Defendant is really involved. The insurance company for the Defendant tags in on the behalf and from then on they control the process. The insurance company is the one who decides if this is a case that is worth settling or not, or whether it should go to trial or not. They are the ones who assign an attorney and a random adjuster who was not involved in the actual happening of the event/tort and has never met either person involved, but still makes major decisions. The adjuster is the person who holds the purse strings, controls the money. They say what a case is worth to the insurance company and what should be paid, if anything, for the affect the injuries had on their life. They are also the people who fight the most to keep the truth away from the jury.

Often times the person who was actually sued has no say in how things proceed. It is all about protecting the insurance company’s and their bottom line. Insurance companies are in the business of making and keeping money. Insurance companies are not in the business of paying claims, as that is not how they make money and stay solvent. When the case gets to trial and a jury picked, despite the fact that the Insurance Company are the ones who provide the defense and ultimately the ones who will pay any verdict obtained, we are not permitted to tell you this. It’s a big secret, a Wizard of Oz “Pay no attention the man behind the curtain!” farce. This would not be so bad if that same man behind the curtain were not allowed to argue the point that a just verdict would financially harm or even bankrupt their client. The Defendants can talk all day about what a verdict would mean for poor old Ms. Simpson who is retired and living off of Social Security, when the reality is that she will not spend a dime on that verdict. Her insurance company will. Our justice system is set up to make you believe that the person being sued is who is paying the bill. They aren’t, and we cannot pull back that veil. There is no Toto to expose the wizard. In some local states, even when the person being sued IS an insurance company the jury is still not permitted to know who they are. In effect, they get to hide completely from Lady Justice.

Is drunk driving really a bad thing?

Let’s say that you are involved in a car collision with someone who is intoxicated. Pretty devastating huh? Pretty scary? We all know that drunk driving is not safe, and that using alcohol and/or drugs then getting behind the wheel kills thousands of people every year. Judges in MD and DC have decided that the fact that someone is drunk or high behind the wheel is NOT RELEVANT to your case. Even if you wind up injured, permanently hurt and they have been convicted of driving under the influence that fact will never see the light of day in front of a jury. As long as the Defendant says they were drunk and/or high and caused a crash, they get to hide the fact that they were drunk at trial. Despite the fact that the law says that the person suing has to show all the dangers that could happen and that the Defendant appreciated that danger, the fact that they were aware of the dangers of driving drunk is not important. In essence, we are saying that people do not have to take responsibility for their actions and can continue to put those on the road with them at risk day after day. The rationale handed down by the courts is that that fact of the Defendant driving drunk unfairly prejudices the jury against the Defendant, but should they not have to bear that prejudice? They knew the law when they chose to drink and get behind the wheel, they should have to bear all of the consequences.

They have been in how many crashes?

How many car crashes or collisions has the person who hit you been in before hitting you? Do you think this is important? Would you want a jury to know this when thinking about whether or not that person has a reason to lie, or if they should be held to a higher standard? While they can mount a pretty effective defense that you as the Plaintiff are just out looking for money because of the unfortunate events that have happened in your past, the Defendant can hide behind the curtain yet again. Did they fall asleep behind the wheel and hit a pole just 40 minutes before hitting you? Have they been convicted 10 times in the year before for reckless driving too bad so sad, the powers that be have said that prior car crashes are not relevant, even if they happened the SAME DAY as the one that you were in. This person could be Evil Kanevil on the streets and the jury will never know because the courts have deemed it “not relevant” and “not important”.

Where’s the beef?

So let us say you are injured and call the police. They talk to everyone involved and they create a report. In some situations they make a decision about who was at fault or what the circumstances are surrounding what happened. We get a copy, the Defendant gets a copy but guess who doesn’t get to see it? The Jury! This is probably the number one thing that jurors ask for. “What about the police report. Is there one? What does it say? Can we see it?” Well, yes and no. We are not allowed to talk about its very existence unless we have the cop there in trial to testify. However, here in lies the rub. The Defendant can simply say “Oh I did it, but they were not really hurt” and BOOM! You talk about the police report “not relevant”. On the other hand, let’s say that the Defendant is contesting what happened in the crash, Police officers are really really busy and notoriously hard to track down. They move around, they transfer and sometimes it’s not always in their best interest to take a day off from work to testify in a civil trial. You can admit the police report to prove observable conditions for example the weather, the condition of the road, time or place and position of the vehicle, but in a drunk driving situation is that the meat?

If you are starting notice a common theme of relevance, you are correct. The irony is, that the very people, that the justice system works so hard to keep in the dark, the jury, are the very people who are charged with deciding the facts and if something and someone should be believed or not.

So, how does this information hurt or help you? Well, it is important to know the truth. Our current justice system, while a beautiful dance of brain vs. brawn, has become a game. A cat and mouse game where The Plaintiff spend time trying to expose the truth, while The Defendant goes through great lengths to keep it from you. The Jury should know how it all works so that you know and understand your rights, should you ever unfortunately be involved in a situation where you are hurt as a result of someone else’s actions.

You should know that, no matter what they tell you, it all comes down to the insurance company. They are the ones in control, they foot the bill, and they make the hamster wheel turn. There is rarely a situation where they are not the person actually paying the bill and you should not be ok with them lying to you about it. You should not be ok with them being able to hide anything from you, whether it be a prior accident history, drunk driving or a police report. You should go in with your eyes open, whether you are a Plaintiff, Defendant or Juror.

This is not Fahrenheit 451. Our jury system works because our jurors are SMART, way smarter than they system gives them credit for. Why else would we have trusted them to make decisions, for thousands of years. Jurors are discerning and compassionate and attentive. My idea of justice, true justice, would be to lay it all out on the table things that are a benefit and harm to both sides and let jurors do what we charge them to do, figure out the truth and decide what amount if any should be allowed as compensation.

Will this always benefit the Plaintiff? No. It will however not always benefit the Defendant either. It is truly a balancing the scales of justice. And that is why most lawyers, at least the ones that I know, got into this business. The very definition of Justice is just behavior or treatment. “A concern for justice, peace, and genuine respect for people.” Webster’s Dictionary 2018. Let’s start treating our jurors with the respect of the TRUTH.


Negligent Entrustment and You

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Dec 20, 2018 | Ben Chasen

When Are You Responsible for What Someone Else Does with Your Car?

Every licensed driver in the country goes through the same rite of passage: learning how to drive. Whether you learned from your parents, learned through a school program, or used a private company, every state requires some degree of on-the-road driving experience before it will grant a prospective driver a license. Think about all those times you purchased or rented a car. The dealership checks your license, proof of insurance, and your credit. But once they sell you that car, it is unlikely, absent some ridiculous facts, that the dealership will be responsible for what happens to that car.

Now I want you to think about all those times you let someone else drive YOUR car. Did you check their credit? Did you ensure that they had their own insurance? Have you ever asked to see someone’s drivers license before letting them borrow your car? Have you ever checked someone else’s license before getting in the car with them?

Let’s say for the sake of argument that you are the type of person who requests to examine the drivers license and insurance documents of every driver—just because a person is licensed to drive does not necessarily mean that they are competent to actually operate a car.

So what happens when some driver you let use your car (or other instrumentality) , either through their inexperience, youth, or reckless tendency, causes injury to another through the use of a car (or other instrumentality)? Are you, as the owner, responsible? The answer to that question, like all great legal questions, is that it depends.

Negligent Entrustment Generally: A Brief Overview

Lets start at the top: Everybody has heard the word “negligence,” but what does that word mean in the legal world? Negligence is a type of civil penalty called a “tort”. In English, a “tort” is a civil crime that one person can bring against another to recovery, in most instances, money damages The purpose of having these types of civil penalties is to allow people to hold each other accountable for the choices they make that result in some damage, or injury. A common example of a tort action is a car crash.

In a car crash, a person makes a choice to do, or not do, something that results in two cars colliding. In other words: When cars crash, it happened because someone failed to follow the safety rules that protect all of us on the road. Tort law allows for the injured person to recover, financially, for the harm caused by the conduct of the at-fault party. In a car crash, that takes the form of economic damages, like medical bills or lost wages, and non-economic damages, like the injuries’ impact on a person’s ability to do the things they want to do, the things that make them who they are, things like travelling, working, playing with their children, or pursuing their dreams.

So now that we have “negligence” and “torts” defined, what is Negligent Entrustment, and why should you care? Negligent Entrustment entered the legal scene in Maryland in 1934 when the Maryland Court of Appeals decided to recognize Negligent Entrustment but rejected the definition of the concept given by the Second Restatement of Torts, which is a guide used by many states in forming their tort laws.[1][2] The Restatement of Torts defines negligent entrustment as:

One who supplies directly or through a third person a chattel for use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of physical harm to others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm… [3]

In 1989, the Maryland Court of Special Appeals articulated the elements required to establish negligent entrustment as: 1) the making available to another a chattel, 2) which the supplier knows or should have known the user is likely to use in a manner involving risk of physical harm to others; and 3) the supplier should expect to be endangered by its use. [4]

You may be asking yourself “Okay, great. But what the heck is a chattel?” I am so glad you asked. A “chattel” is any physical item; any piece of personal property other than real estate. With that in mind, you can see how negligent entrustment might apply to other situations outside of a standard car crash. For example:

Ex.1: A tour company regularly rents jet skis to non-English speakers. However, the company is only capable of providing safety instructions for using the jet skis in English. The tour company knows, or should know, that it is putting its “chattel” into the hands of people who will likely not understand how to operate the chattel, or jet skis, safely. The company is well-aware of the potential dangers that can result from operating a jet ski without proper instruction. Additionally, for the sake of this example, let’s assume that the safety instructor sees the riders operating the jet skis with reckless disregard for other people in the water, but does nothing other than yell to them to “cut it out.” If one of those jet ski-riders slams headlong into a fishing boat, it follows that the supplier of the jet ski (the tour company) should be held responsible for the damage that is caused. After all, they had the responsibility to make sure that their customers understood how to operate the jet skis safely.

Negligent Entrustment in Context: Focus on Relationships

A more relatable example might be when parents allow their child, a new and inexperienced driver, the use of the family automobile.

In order for Person A to be held liable under the theory of Negligent Entrustment as a result of the negligent conduct of Person 2, while Person 2 is driving Person A’s car, there needs to be some compelling circumstances that evidence Person A’ knowledge that Person 2 is a menace. For example:

Ex.2: Dad and Mom are teaching their 16-year-old daughter to drive now that the she has gotten her learner’s permit. Mom and Dad provide her with one of their cars, titled in Mom and Dad’s names, to practice driving while either Mom or Dad are in the car with her. They spend time discussing safe driving practices with her when she is a passenger in their cars. Unfortunately, during one of those practice sessions, the 16-year-old crashes the car into the rear of a car in front of them.

The Restatement specifically itemizes that the “inexperience” of a driver is one reason to find liability on the part of the supplier of the vehicle. However, the Maryland Courts have held that there is “no litmus test to determine whether a supplier had the requisite knowledge of an entrustee’s propensity to use the entrusted chattel in an improper or dangerous manner.”[5]. This means that, without some specific factual circumstance, the court will not automatically attach liability to the owner of a vehicle under the theory of negligent entrustment.

So what kind of facts should we be looking for in a negligent entrustment claim? Let’s take a look at another example, this time involving employees of a trucking company.

Ex.3: Derrick was hired as a commercial truck driver for XYZ Corp. Derrick does NOT hold a Commercial Drivers License. At the time of Derrick’s hiring, the company did not have any procedures for checking whether newly-hired drivers held a CDL. As a result, Derrick was hired to drive a vehicle that he is not licensed to drive. On his first run, while driving without any kind of supervisor or trainer or a more experienced truck driver, Derrick loses control of his truck, causing a massive crash which resulted in multiple injuries to other drivers.

In the above instance, XYZ Corp supplied a chattel (the truck) to an individual who they should have known would be incapable of operating the truck safely. Derrick would not have caused a crash without a) XYZ Corp. handing over the keys to that 26,000 pound piece of machinery, and b) Derrick having no idea whatsoever how to handle a commercial vehicle of that size and weight.

The example above demonstrates the true goal of negligent entrustment: to hold people accountable for their own negligence. In an any relationship like the examples above, the insurance purchased by the owner of the vehicle will cover another driver that operates that vehicle with the permission and consent of the owner. This means that when someone crashes a car that you own after you have given them permission to drive it, it is YOUR insurance that is going to cover the damage regardless of whether or not you know they can drive safely.

So, what’s the point of negligent entrustment as a legal theory if the injured person has an avenue to recover the expense of their injury through the insurance of the person who owns the vehicle? The point is that both the driver and the owner of the car have acted negligently in these circumstances: the person driving the vehicle did so negligently, resulting in the crash, and the owner of the car acted negligently in entrusting the car to the at-fault driver in the first place. If you only claim negligence on the part of the driver the company, or owner of the vehicle, learns nothing. They fire the driver, tell themselves that this was a one-time occurrence, and proceed with business as usual. But when an injured party brings claims against the company for their driver’s negligence AND bring the claim for the company’s choices regarding their system of entrusting property to their employees, XYZ Corp. and all of the competitors in their industry get the message that they have a responsibility to the public to only allow qualified individuals to operate their heavy machinery.

The civil justice system is designed to provide relief to people who are injured by the conduct of others, to impose liability on those who are responsible, and to deter others in the community from committing similar harmful acts. The theory of negligent entrustment couples well with all three goals of the civil system in that it provides an additional way for the injured party to recover, it imposes liability on those responsible (not just the driver, but the guy who put keys in his hand), and deters this specific company, and other companies in their industry, from operating with the subpar hiring, training, and supervision practices that created the situation with XYZ Corp. in Ex3. above.

End Game: When Will I Be on the Hook for Handing over My Keys?

This answer to this question may be frustrating but the reality is that it depends. Compare the outcome in the example with XYZ Corp. to the example of parents allowing their child use of the family car to gain driving experience. with Ex2. Mom and Dad in Ex 2In the second example, Mom and Dad did nearly everything they could to ensure the safe driving of their 16-year-old. Before allowing her to drive the car, Mom and Dad made sure that she had obtained her learners permit and they discussed safe driving practices with her while they were driving and she was a passenger in their car. Ultimately, the question becomes “What else could they have done?” If the answer is “nothing,” then there is likely no basis to bring a claim for negligent entrustment.

Now look back at the example involving XYZ Corp. In that example, the company had nor process to ensure that newly-hired drivers were actually capable of handling the trucks that they would be required to drive. They hired Derrick without checking his credentials. They put him behind the wheel of a tractor trailer without verifying that he was actually qualified to drive the truck. They put him out on the road without any training in their system and procedures, and without someone there to ensure his maiden voyage went smoothly. Worst of all, as a result of their choice to put their profits over people, Derrick causes a massive crash using their truck.

Here is the bottom line:

  • If a vehicle that you own is involved in a crash and the at-fault driver is someone who you allowed to use the car, your car insurance is on the hook for the damage caused by the driver, regardless of whether or not you “negligently entrusted” the car to them.
  • When there is “negligent entrustment” between individuals, i.e., when you are aware, or should have been aware, that the person you let drive your car is a menace on the road, or will likely be, if given the right opportunity, negligent entrustment means that you will be named personally in any suit that results—and rightfully so!
  • The best way for any vehicle owner to avoid liability under the negligent entrustment theory is to make sure that the people you allow to drive your car are safe drivers. That may include looking into their driving history on the internet, discussing the risks and rewards of safe driving with your soon-to-be teenage drivers or close friends who borrow your car, and to incentivize caution for anyone who will use your vehicles.
  • Keeping the roads safe is everybody’s responsibility. Please share with us things you have done to teach your teen drivers how to drive safely, or share with us things that you learned from the person who taught you to drive.

[1] See Rounds v. Phillips, 166 Md. 151 (1934).
[2] The Restatement of Torts is a text written by the American Legal Institute to “restate” common legal principles in the area of Tort Law. There are restatements in various other areas of law as well.
[3] See Second Restatement of Torts §390 (1965).
[4] See Wright v. Neal, 79 Md. App. 20 (1989).
[5] See Morris v. Weddington, 74 MD App 650 (1988)


It’s okay to admit you need help: Overcoming the stigma of mental health treatment

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Dec 17, 2018 | Elizabeth Payne-Maddalena

Broken bones. Whiplash. Concussions and TBIs. Slipped discs. Busted knees. Juries expect these kinds of injuries from a car crash or a slip and fall. These injuries are easy to diagnose: there are diagnostic tests for them, like x-rays and MRIs. Doctors can press on a muscle and feel it spasm, look at a person and see them limp.

But a person isn’t just a collection of body parts. That’s not what makes you you. When I ask people what drives them in life, they tell me about their families, friends, faith, work, passions, hobbies and dreams. Those are the important little pieces of a person that makes up a soul.

To pursue these things, these passions that make up a person, people have to be physically able to do them. When someone gets hurt in a car crash, it’s like throwing a stone into a calm pond – the ripples spread out and touch each part of their life. The outgoing PTA mom who’s always willing to help out suddenly withdraws, in too much pain to paste a smile on her face. The young accomplished athlete feels like a failure, struggling with frustration, anger at the recovery process. The office rockstar misses work, meetings, falls behind.

Juries aren’t surprised to hear about these kinds of damages from car crash or fall victims. After all, jurors are people too, and this makes sense to them that injuries do more than just hurt. But sadly, some attorneys choose to ignore these impacts on their clients’ lives, even when the emotions become so great that their client needs professional help to recover. These injuries, some say, are too “hard” to prove. After all, there’s no MRI to show depression. X-rays don’t show driving anxiety.

However, these are crucial losses that you’ve suffered because of someone else’s negligent choices, and you deserve to be compensated for them. So today, I’d like to talk to you about how to make sure all of you gets the healing you need after you’ve been injured. This is an important topic, and I know there are lots of stigmas around “mental health issues” that we’ll get into. Most importantly, remember that there’s nothing wrong with asking for help when you need it.

What kind of emotional or psychological injuries do you normally see in your cases?

First of all, I try not to call them “psychological injuries” because there’s a lot of baggage with that term, and I don’t want clients to feel judged or uncomfortable.

The situation I described above is very common with my clients. Injuries suck. I’ve had my fair share of them, and the healing process can be a long and arduous road. The pain alone can cause someone to want to isolate themselves or feel weak, humiliated. Clients may lash out unintentionally when they’re hurting, affecting their relationships with others. But some feel robbed when they miss out on important life events, or even everyday life events. When the injuries are life-changing, its a higher chance that they will never truly, fully recover. This makes some people very depressed. Some people get angry, as they did nothing wrong – after all, it was the defendant who made the choice that caused them to get hurt. Sometimes, these feelings of depression, anger, or anxiety become a festering wound that drags a person down.

Other times, the event itself may trigger anxiety or post-traumatic stress for a client. For example, imagine you’re sitting at a red traffic light, minding your own business when BAM! A drunk driver rear-ends you at full speed. You have to be taken to the ER from the scene by an ambulance. It’s out of nowhere. Next time you’re sitting at a red light, how do you think you’re feeling? Nervous? Anxious? You bet. Your sense of safety’s been completely shattered, and now, you trust no one. Many people confess to feeling like they’re just waiting for the next negligent driver to hit them – and they’re scared that the next one will be a lot worse. For a majority of people, this driving anxiety goes away after a few weeks. But for some, it clutches into their brain and refuses to let go. When those people get behind the wheel, they may start to feel their heart racing or have flashbacks. Nightmares might plague them. They avoid driving. When it starts to interfere with all the things you have to get done, that’s when you need to ask for help.

For assault and abuse survivors, the trauma surrounding the event itself leaves long lasting scars that require counseling to help them overcome their fears. Getting a client into immediate supportive treatment is necessary in these kinds of cases in order to help give the client the support they need to fully recover from their abusers.

What should I be doing to protect myself?

Again, each client is different – no two people are alike. Some people may recover without needing any professional help, but others will. It’s important that you’re talking to your medical doctors, physical therapists, and your attorney about your frustrations, anger and anxiety, so that way, if you do need help it is well documented. This means you’ll have an easier time getting treatment if you need it. This also helps build your case by having a third party that can back up your testimony if the case goes into litigation.

What are some of the major roadblocks that keep clients from getting treatment?

Stigma

Let’s face it: the US has a major problem when it comes to our views on mental health issues. The Association for Psychological Science cites this stigma as one of the main reasons why people don’t get or complete mental health treatment. Getting counseling or therapy is seen as something “crazy” or for people with serious psychological disorders. Some see it as an admission of weakness.

The simple truth is that the people I know who are willing to seek professional help when they need it are the strongest people I know. They’re anything but crazy. In fact, they’re some of the sanest people I’ve met. Think of it this way: you have a brain injury, you see a neurologist. But if your psyche is injured, you’re not gonna go see a doctor to heal that?

Insurance and money

The next big hurdle is finding a way to pay for treatment. Under the ACA, insurance companies must cover mental health treatments. This is great news, and something that hopefully Congress sees and keeps this requirement.

But many providers are out of network, meaning there are high copays or deductibles. Finding in-network providers can be time consuming, or worse, involve long waitlists. But there may be solutions you and your attorney can come up with if you ask and explain the issue with them. Let them be your ally! After all, we can’t help you if you don’t tell us what roadblocks you’re encountering.

Jagged little pill

With apologies to Alanis, medication is another big issue that makes many people shirk away from seeking help when they need it. There’s an additional stigma around taking psychiatric medications that’s pervasive. Some people fear they’ll become zombies or someone different on medication. Others worry that they’ll experience significant side effects. Still others fear addiction or dependency. But these feelings, while valid, shouldn’t stop you from getting the treatment you need.

First of all, medication is not always a requirement for treatment. It’s a tool that can be used as part of your treatment, yes, but it’s not a required one. Your mental health professional should be willing to work with you if you’re uncomfortable taking medication, and you should talk to them about your fears and concerns. You may also want to focus on treating with Licensed Professional Counselors (LPCs), Psychologists, and/or Licensed Social Workers (LSWs). These providers typically focus more on non-medication therapies versus psychiatrists. However, psychiatrists also offer therapies and methods that couple well with medication, or fall outside of it, and can be just as beneficial. They can be especially helpful if you do end up needing prescriptions to help manage your symptoms while you’re in treatment.

Additionally, your treating provider should work with you to find a medication that doesn’t result in significant or massive side effects or turn you into a zombie. While it may take a couple of adjustments or trying different drugs, your provider will work with you to find something that manages your symptoms while allowing you to still be you.

Finally, even if your provider recommends prescription medications as one of the tools to help you recover from your emotional injury, that doesn’t mean you’ll have to take that medication forever. It’s just like taking a course of antibiotics for a sinus infection: after you’re cured and you’ve completed your dose, you don’t keep taking them forever. Many people end up tapering off their medications completely once their treatment has resolved. Keep in mind that you should not just quit taking your medications, and stopping any psychiatric medications should be done at the recommendation and under the supervision of your treating provider.

Finding the right provider

The last big struggle I hear about when it comes to getting treatment for emotional injuries is finding the right provider. This boils down to two categories: experience/specialty and fit.

With experience and/or specialty, I mean finding a provider who’s treated people with the same trauma as you, and/or offers the kind of treatment you want. You don’t want to go to a counselor or therapist for driving anxiety whose never treated someone with post-crash driving fears before! When you’re calling around, ask your potential doctors, counselors or therapists if they’ve ever treated someone in your situation before. You should also ask what therapies they offer and prefer (including any concerns over medication, as I discussed above). If you’re not familiar with the therapies they offer, Google them! Google can be very helpful with explaining what therapies benefit what symptoms the best. For example:

By fit, I’m talking about finding a provider that you’re comfortable with. This is incredibly important when it comes to any medical provider that you’re seeing, case-related or not, but even more so for mental health treatment. You’re trusting and talking to someone about the thing that most people struggle opening up about: your feelings, your thoughts, your emotions, your fears. If you don’t feel comfortable (or like you can get comfortable) with a potential provider, your treatment won’t be as successful as it’ll be hard to open up. It’s not a bad thing, and a provider won’t take it personally. (As a lawyer, I tell potential clients all the time that they should feel comfortable talking to me, and if not, they shouldn’t choose me to be their attorney for the same reason).

Remember This

No matter what, people deserve to be compensated for the emotional damages they’ve incurred as a result of someone else’s negligent choices. Even if they don’t end up needing psychological treatment, as those damages still matter. Make sure you’re talking to your treating providers in order to build a record of these damages and ensure you get the treatment you need. Find an attorney who cares about all of you, not just your bones, muscles or organs. And don’t let the stigmas keep you from being compensated for all of your injuries. After all, it’s what you’re entitled to and what you deserve.


What lost wage benefits are you entitled to if you’re hurt on the job?

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Nov 30, 2018 | David Snyder

In my last blog post, I discussed recent developments in the workers’ compensation law in the District of Columbia with regard to injured workers being paid based upon wages lost at one or more jobs as a result of a work injury. This is referred to as “wage stacking.” Let’s now delve a little more deeply into how lost wages are calculated and how injured workers are paid when they are recovering from and living with their injuries.

A Brief Review on Wage Stacking

To briefly refresh, I believe that one of the most important benefits, aside from medical care and treatment designed to get you better and back to work, are the wage replacement benefits you are entitled to receive while you recover from your injuries and are unable to work. These are known as temporary total disability benefits.

In the District of Columbia, where I focus the majority of my practice, injured workers are entitled to “stack” their wages for purposes of the calculation of workers’ compensation benefits. This means that injured workers who are working at two or more jobs at the time of their injury are entitled to be paid based upon lost wages from both jobs. The law makes no distinction in terms of how much injured workers are entitled to be paid depending on which of their two jobs they were performing when injured. In other words, even if someone is injured while working at a job that pays $100.00 per week, and the injury prevents them from also working at their job that pays you $1,000.00 per week, they can still “stack” their wages.

Unfortunately, this is a key area of the law where Maryland and Virginia are lacking. In Maryland, injured workers cannot stack their wages at all. So, if someone is injured while working at their part-time job and misses time from a much more lucrative full-time job, the state of Maryland has determined that they are out of luck and just have to deal with the very limited income replacement benefits. Virginia has essentially a “middle ground” law between D.C. and Maryland. In Virginia, injured workers can only stack their wages if their second job is similar to the job at which they are injured.

This, of course, can lead to disastrous outcomes such as being unable to feed their family, being evicted or foreclosed upon, or any other of the other travesties detailed in a 2015 article by National Public Radio.

How are Temporary Total Disability Benefits Calculated?

In all three jurisdictions, temporary total disability benefits are paid at 2/3 of an injured worker’s average weekly wage (the resulting amount of the payment is referred to as a “compensation rate”). Although the average weekly wage has been calculated using gross (pre-tax) wages, and although the compensation rate is not taxed, this still usually leaves injured workers in the hole while they are out of work and recovering from their injuries. I say this because 66 2/3% of your gross wages is generally less than the amount of take-home wages even if a person is taxed by the federal government, state and local governments, and makes some contribution for health insurance. Insurance companies and the drafters of the workers’ compensation laws would have us believe that this should somehow “incentivize” injured workers to want to return to work as quickly as possible, but I have only ever seen it have negative consequences when my clients have attempted to return to work earlier than their doctors would permit only because they need to earn more money to keep up with their financial obligations. In short, I think it is a travesty of justice to only pay injured workers 2/3 of their gross wages. This figure should be closer to, if not in excess of, 73% in our region based upon the average percentage of income paid as federal tax (21%) and the average state and local taxes paid by residents of Virginia and Maryland (5.63% and 6% respectively).

Generally speaking, an injured worker’s average weekly wage is calculated based upon his or her gross earnings within a set timeframe immediately preceding the work injury. A major difference in the three jurisdictions, however, is the number of weeks that are factored into the calculation of an injured worker’s average weekly wage. Virginia allows for the calculation of average weekly wage based upon the earnings in the entire year prior to the work injury; the District of Columbia allows for the calculation to be based upon the half year prior; and Maryland allows for the calculation to be based upon the 14 weeks prior to the work injury.

As always, however, there are numerous exceptions to every rule. For example, many people work in seasonal employment. This can include those who work in retail during the holiday season, those who work in landscaping or other outdoor service jobs, employees at the major sports arenas and stadiums in the area, and even teachers who choose to get paid on a nine month cycle as opposed to a 12 month cycle. In these situations, the injured employees are not prejudiced by the fact that they did not have steady earnings during the entirety of the time period generally used for calculation of their average weekly wage.

Similarly, if an injured worker had recently returned to work from a prior injury or had recently started working at the job, then only the wages as of the date of return to work or the beginning of employment will be considered. It is also long-settled law that weeks in which the injured worker did not work will be excluded from the calculation. See United Parcel Service v. D.C. Department of Employment Services, 834 A.2d 868 (D.C. 2003). The same principle would, of course, apply to any vacations taken during the relevant time period.

What counts as wages?

Perhaps the most interesting aspect of the average weekly wage calculation, at least to me, is what is included in the definition of “wages.” I have seen this arise in my practice in multiple, very interesting instances. For better or for worse, the District of Columbia has determined that, in certain instances, not all employee benefits are considered to be wages. I represented a union member who was paid, under his union’s collective-bargaining agreement, both regular hourly wages as well as employer-paid contributions into his retirement plan and health savings account. All of these things were paid for out of the same chunk of money (and I liken this to a non-union employee paying a portion of their wages into a 401(k)), but the District of Columbia courts determined that only the money paid as actual wages to my client would get included in the calculation. Unfortunately, this area of the law is pretty well settled under both the District of Columbia Workers’ Compensation Act as well as its predecessor (which also happens to be one of the federal workers’ compensation laws), the Longshore and Harbor Workers’ Compensation Act.

Other injured workers who I routinely see fall victim to the District of Columbia law regarding the definition of wages are those who work in employment where they are paid both wages and tips (generally, these people are waiters or waitresses). The D.C. workers’ compensation law only allows for the inclusion of tips only if they have been declared for tax purposes. D.C. Code § 32-1511(b). Unfortunately, as most of you who have worked in the service industry will know, this is rarely done, or people generally under value the amount of compensation they are paid in tips. This can lead to financially ruinous results when one of these employees is injured on the job and only paid based upon his or her less-than-minimum-wage hourly wages and not the tips that form the bulk of that person’s take-home pay.

One other interesting aspect of the law regarding the calculation of average weekly wages comes from the same subsection as the language regarding the inclusion or exclusion of tips. That subsection also allows for the inclusion of the “reasonable value for board and lodging received from the employer.” D.C. Code § 32-1511(b). Maryland is actually a bit broader and allows for the inclusion of “ the reasonable value of housing, lodging, meals, rent, and other similar advantages that the covered employee received from the employer.” Md. Code, Lab. & Empl. Section 9-602(a)(2)(ii). This section of the law generally applies to those people who live at their place of employment. For example, I have seen this play out for domestic workers, such as butlers and chefs, as well as farmhands working on the chicken farms on the Eastern Shore of Maryland. Although it may seem a little bit strange to include these types of things with in the definition of wages, it makes sense when looked at through the lens of the benefit to the employer: in all of these situations, the employer is deriving a benefit from having its employees housed either on its premises or in very close proximity thereto. In return, when an employee in this type of employment is injured, the law recognizes that the employee is then entitled to transference of the benefit that their employer was getting in the form of it being included in their weekly workers’ compensation checks.

The lesson to be learned from all of this is this: Your “wages” when you are injured at work may not always just include what you take home from the specific job in which you were working at the time of the injury. It is important to hire an attorney who is experienced in workers’ compensation and who can properly advise you and advocate on your behalf to ensure that you are not suffering from a substantial loss of income during a very difficult time in your life.


Don’t Be the Strong Silent Type: How to Talk to Your Doctor to Ensure Your Rights are Protected Following a Work-Injury

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Nov 20, 2018 | David Kapson

If you read my first blog, you will recall that two things I am very fond of are pop culture and stories. One of my favorite all-time pop culture phenomena is the acclaimed HBO original series, The Sopranos. I think I have watched the series in its entirety at least three or four times. Anyone who is familiar with the series knows, Tony Soprano, the anti-hero lead character and mob boss extraordinaire spends a lot of time in therapy session with his psychiatrist following panic attacks and bouts of anxiety. No doubt, those symptoms are related, at least in part, to his Tony’s work as a career criminal, but that’s not why I bring up the reference.

I often find myself thinking about a bit of dialogue between Tony and his psychiatrist, Dr. Melfi in the very first episode when I advise my clients about how to communicate with their doctor following a life changing work injury. Struggling with the fact that he has to open up to his doctor in order to get to the root of his problems in therapy Tony says the following:

Tony Soprano: Let me tell ya something. Nowadays, everybody’s gotta go to shrinks, and counselors, and go on “Sally Jessy Raphael” and talk about their problems. What happened to Gary Cooper? The strong, silent type. That was an American. He wasn’t in touch with his feelings. He just did what he had to do. See, what they didn’t know was once they got Gary Cooper in touch with his feelings that they wouldn’t be able to shut him up! And then it’s dysfunction this, and dysfunction that, and dysfunction vaffancul! The Sopranos Pilot (season 1, episode 1).

You may find yourself asking how does this reference apply at all to communicating with your medical provider in a workers’ compensation setting? The answer is quite simple, do not be Gary Cooper, John Wayne, or Tony Soprano when visiting with your doctor after a work injury. Put another way, to be the strong and silent type could be the kiss of death when it comes to making sure all of your rights are protected, including your entitlement to causally related medical care and treatment and money benefits.

In my first blog post I stressed the importance of telling the truth after a work injury and how that honesty has two components, one obvious, and one less so. I want to focus on this honesty and truthfulness in the context of communicating with the doctor. The obvious component is to not lie or make anything up. I’m less concerned about the obvious element. It’s easy, it speaks for itself, and frankly, I do not want to represent anyone in a legal matter that is not an honest and credible person.

I’m more interested in the less obvious component, the “do not hold anything back” side of telling the truth. I always tell clients at our very first meeting that the doctor is not a mind reader and is only going to address the complaints that the patient makes when taking a history. Not holding anything back means paying attention to your body and documenting all symptoms and complaints, in all affected body parts following a work injury. In this scenario, all means all, including all symptoms and complaints whether they are a direct result or a consequence of the work injury.

Telling the doctor all of your symptoms and complaints, means telling every doctor you see, whether your treating doctor, or the doctor the insurance company sends you to for an evaluation, all of the symptoms and complaints and when you experience them. I tell clients all the time, you need to make sure the doctor understands what you feel and go through on your worst day, not your best day. Sometimes symptoms can wax and wane, but the bottom-line is that an injured worker is not seeking treatment for how they feel on their best day, its about how they feel at their worst. This allows the doctor to get an accurate picture of the condition or conditions the injured person is experiencing and develop a treatment plan to get the person feeling better. That’s the ultimate goal after all!

Consequential Injuries

A consequential injury is an injury or medical condition sustained as a result of an employment related injury or illness. Often times, when a person has an injury on one side of their body, like knee or ankle injury, or a shoulder or elbow injury, they overcompensate for the loss of use the injured side of their body and put more stress, wear and tear on the opposite, non-injured side. Consequential injuries can develop due to this overcompensation. It’s very important to not go all Gary Cooper or Tony Soprano when this situation occurs. I urge clients to make these complaints to the doctor immediately when they begin to have these problems. I also ask clients to make certain their doctor is actually documenting the complaints in the medical reports and making treatment recommendations based on the complaints. This is especially important in the workers’ compensation setting because the insurance company may choose to deny authorization to treatment for consequential injuries, so the sooner the complaints are documented by the treating physician, the easier it tends to be for consequential injuries it is to be accepted. Whether that’s on a voluntary basis by the insurance carrier, or through the worker’s compensation court system.

Head Injuries

Sometimes folks who experience severe injuries to their bodies also strike or injure their head as a result of the work accident. Unfortunately, these conditions can go unnoticed or undiagnosed at first, especially if there is the need for emergency triage or treatment for a bodily injury immediately after the incident. Injured workers find themselves experiencing post-concussion symptoms, or neurological problems as they seek treatment with their primary care physician or an orthopedic specialist following the injury. The rule against being the strong silent type applies in this situation as well. If you find yourself if this predicament it is very important to make all of these symptoms and complaints related to a head injury to your doctor so that he or she documents them in the reports and provides a referral to a neurologist or other specialist with the skills to treat the specific problem. The same rationale as outlined above in consequential injuries about getting approval for the requested consult and treatment from the insurance company or through the court system.

Psychological Injuries

A life changing work injury can impact a person’s life many ways, including leading to feelings of anxiety, mental anguish, and depression. These conditions are compensable and if you experiencing psychological complications following a workplace injury you have the ability to seek treatment at the expense of the workers’ compensation insurance carrier. If you find yourself in this situation, do not hold anything back, make the complaints to your treating physician, get a referral for a psychological consultation, get it submitted to the insurance carrier for approval and get yourself into treatment and on the road to feeling better.

In response to Tony Soprano’s question, about whatever happened to Gary Cooper? The strong silent type. My hope is that by properly educating injured workers about their rights and how to communicate with their doctors as a means to protect those rights we can eradicate the strong silent type mentality from the culture of workers’ compensation. In doing so, it should help the injured worker get faster access to reasonable, necessary, and causally related medical treatment for any and all condition related to their work injury and make it harder for the insurance companies to deny honest hard working people access such treatment.


A Worker’s Guide to Navigating Longshore and Maritime Workers’ Compensation Law

Nov 07, 2018 | Krista DeSmyter

Thousands of men and women are injured at work every day. Different state and federal laws can apply to the rights of these injured workers depending on several factors. Factors that determine which set of laws applies to a work injury include the place of injury, the location of the employer, the nature of the work, where the contract for employment was made and what government entity has an interest in protecting the health and sustainability of a particular work force. The overarching purpose of each state or government having workers’ compensation laws should be the same (See this post). However, there can be major differences in each state’s laws. This is because each state is sovereign, meaning it has its own laws that apply within its borders, and there can be significant differences in the laws as they apply to each work injury depending on how the legislature writes the laws. There are some groups of workers who fall under the jurisdiction of federal laws, the Longshore and Harbor Workers’ Compensation Act, where the United States has a specific, Constitution-based interest in protecting the class of workers. No matter what state or country the worker is from, workers covered under the Longshore and Harbor Workers’ Compensation Act are entitled to uniformly applied federal law under the oversight of the United States Department of Labor.

Explosions, fires, equipment failures, falls and other mental and physical traumas are just a few common accidents that cause serious injuries on the job. Even the most minor injury suffered on the water or on a military base can quickly lead to a devastating and lasting condition. Many times, these conditions are not covered by state workers’ compensation laws. Sometimes, such injuries can be covered under state law as well as under federal law. If you are injured in a work accident, how do you know where to file your claim and what jurisdiction’s laws best support your family and protect your family’s future? This blog will teach you basic procedures of some federal workers’ compensation claims and will advise individuals navigating their rights to seek an attorney who will help best protect an injured workers’ rights no matter what law applies to their case.

What laws protect longshore and maritime workers?

Federally mandated laws established to protect workers injured while working on waterways, overseas or on military bases include:

  • The Jones Act ­– Protects workers injured on ships or vessels due to the negligence of a ship owner, captain or fellow employee. Under the law, injured workers can recover medical care and cost of living expenses.
  • The Longshore and Harbor Workers’ Compensation Act – Protects land-based maritime workers, such as vessel repairmen or cargo loaders, who suffer injuries or illnesses related to their work. The Longshore and Harbor Workers’ Compensation Act will cover workers injured while loading, unloading, repairing or making maritime vessels. The United States government has a basis in the Constitution to oversee admiralty injuries and to uniformly protect the work force that is so important to the national economy through commerce and defense. See United States Constitution, Article III, Section2 and Article 1, Section 8. The Longshore and Harbor Workers’ Compensation Act provides compensation for medical care and wage loss/disability benefits.
  • The Defense Base Act – Provides protection to employees working outside the United States on United States military bases or under a contract with the United States government for public works or for national defense. Examples of such workers are linguists, security/police forces, cultural advisors, translators, construction workers, truck drivers, engineers, and project managers. The United States government has an interest in protecting this unique work force who are protecting the interests of the United States overseas. The Defense Base Act is an extension of the Longshore and Harbor Workers’ Compensation Act and applies the same provisions to the workers it protects. The Defense Base Act provides compensation for medical care and wage loss/disability benefits.
  • The Non-Appropriated Funds and Instrumentalities Act – Protects civilian employees providing services to the U.S. Armed Forces, including those who work for Army and Air Force Exchange Services, Army and Air Force Motion Picture Services, on-shore Navy Ship Stores, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges and other agencies of the United States under the jurisdiction of the Armed Forces conducted for the comfort, pleasure, contentment and mental and physical improvement of personnel of the Armed Forces. See https://www.dol.gov/owcp/dlhwc/nfia.htm. The Non-Appropriated Funds and Instrumentalities Act is an extension of the Longshore and Harbor Workers’ Compensation Act and applies the same provisions to the workers it protects. The Non-Appropriated Funds and Instrumentalities Act provides compensation for medical care and wage/loss disability benefits. 

Is there a time restriction for making a claim?

Yes. In general, the time you have to file a legal claim after a work injury is limited. You must notify your employer of the work injury as soon as possible, preferably in writing, after a work injury. The time for filing an actual claim within the jurisdiction under which an injury is covered is limited. Also known as the statute of limitations, the time limitation to file a claim can be as short as one to three years from the date of injury. Specifically, under the Longshore and Harbor Workers’ Compensation Act and the extensions of the Act described above, the time for filing a claim is within one year after sustaining a work injury or from the last day of payment of benefits, whichever is later. This statute can vary depending on the nature of your case. If you wait to file a legal claim until the statute of limitations has expired, you may lose your rights to compensation. That’s why it’s important to seek legal help as soon as you can after a work injury. An attorney at ChasenBoscolo is ready to help you protect your rights and meet any time requirements for making a claim under the laws of whatever jurisdiction best protects your rights.

Why do you need an attorney?

 Without the help of an experienced attorney, you may not receive the full amount of compensation you are entitled to under the law. Insurance companies may think they can take advantage of you and offer you less money than you deserve for your injuries and lost wages. Insurance companies try to save money by steering an injured worked toward a jurisdiction with less injured worker protections. This is wrong. An experienced attorney knows how to preserve your claim for workers’ compensation benefits in a timely manner in the jurisdictions that cover your claim, and they can pursue your claim under the laws most favorable to sustaining and protecting your and your family’s present and future. Like much of life, the answers to these questions usually are not crystal clear. An attorney at ChasenBoscolo is ready to help. We will take the time to talk with you about your goals, find out how we may be able to fight for you and put your best interests first in determining how to advance your case. Whether you were injured on an unseaworthy vessel or while loading cargo onshore, if you are a seaman, longshoreman, harbor worker or military contractor and were injured on the job or due to someone else’s negligence, you will benefit from experienced legal help.


What is My Case Worth and How is it Determined?

Sep 20, 2018 | Tom Teodori

If you’ve made it to this page, its probably because you, a family member or friend sustained injuries resulting from the negligence of a company or individual. According to the National Safety Council, motor vehicle crashes in the United States during 2017 resulted in 40,100 deaths and 4,500,000 seriously injured people. Those numbers are mindboggling—110 people die each day in a motor vehicle collision and more than 12,328 are injured daily. For teenagers, car crashes are the number one cause of death. Tragically, you have a 1 in 102 odds of dying in a car crash during your lifetime. Being struck as a pedestrian is 1 in 561 and for those riding motorcycles, the odds are 1 in 846. Slip and fall statistics are also alarming. You have a 1 in 119 odds of dying as a result of a fall. The above numbers are ridiculously high, and you can see the real life and close-to-home tragic consequences of such events.

Negligence is frequently the result of somebody’s violation of the safety rules which are designed to protect us and keep us safe. Some sort of distraction, lack of proper attention, inadequate training, not following protocols, taking short cuts and otherwise not doing what a reasonable person would do creates the negligent conduct. When that safety violation occurs, the negligent party has an obligation to make things right. The question is—what is right?

How much money is right? What factors are considered in valuing an injury claim?

Although some might think it unseemly to value injury claims in dollars, that is the only method our system of justice allows. The United States’ system of justice derived from the common law system developed in England. Although many changes and modifications were made following our Declaration of Independence in 1776, we still hold to the judicial system that requires a negligent wrongdoer to fully compensate an injured party for his or her losses. Failure to do so is a failure to do justice. We are very fortunate to have the system we do because a justice system used in other parts of the world dates back to around 1754 B.C. Known for Babylonia King Hammurabi, its called the Code of Hammurabi. You are likely familiar with this justice system based upon retribution, an eye for an eye and tooth for a tooth.

So, returning to your inquiry, what is a case worth? Numerous factors dramatically affect the value of an injury claim. Many will be discussed below, but some common factors include the defendant’s conduct, the injuries sustained, medical care, lost wages, permanent injury and where the injury occurred. Although you may have heard from a friend or family member about a formula for determining case value, that system or process really has not existed for decades. Insurance companies today use computers to determine case value. Experienced injury attorneys are aware of this and have the tools and resources to fight for fair compensation.

Are there any liability issues?

The first step in assessing proper case value is resolving any and all liability issues. Liability simply means who is at fault. Is the at fault party completely at fault, or only partially at fault? Is fault disputed? Depending on the state where the negligence occurred, fault is crucial. The District of Columbia, Maryland and Virginia are three of the five jurisdictions in the United States that follow the concept of contributory negligence. In most states, comparative negligence is the standard. Why is that important to case value? In contributory negligence states, if the injured person is even 1% at fault then he or she is not entitled to any money—nothing! A harsh result, but that’s the legal standard in contributory negligence jurisdictions. In most of the US, the standard is one of comparative negligence. In such states, a comparison is made between the negligence of the parties and the injured person’s money award is reduced by his/her comparative negligence. So in a contributory negligence jurisdiction, if the injured party is found 1% at fault for a car crash, there would be no recovery. However, if with same set of facts the car crash occurred in a comparative jurisdiction (Pennsylvania) and the jury awarded $100,000.00 to the injured person, the award would be reduced by the injured person’s negligence (1% = $1,000.00), so the award would total $99,000.00.

Click here to learn more about how contributory negligence effects slip and fall cases.

How does an insurance company evaluate the value of your case?

In the past, an insurance company adjuster would use his/her common sense, education, training and experience to determine case value. However, in the mid 1990s, the claims departments of most large insurance companies underwent a radical transformation based upon suggestions by McKinsey Consulting. The suggestions were designed to reduce the amounts insurance companies were paying to injury victims, thereby dramatically increasing profits. So currently, most insurance companies use computer software based upon potentially hundreds to thousands of different data points to determine case value. One such program is called Colossus, which was originally created by Computer Science Corporation and leased to hundreds of insurance companies. The human element in reviewing claims has been significantly reduced, and at times, all but eliminated. The insurance industry cost savings have been huge while payments to injury victims have been dramatically decreased.

So, if an insurance company is going to use computer software to reduce the value of a case, what can be done about it? First, it’s important to retain a law firm experienced in handling claims with insurance companies using the computer software. Accurate documentation of injuries, type of medical care, body parts, loss of enjoyment, medical procedure codes, supporting records, medical billing codes, permanent injuries, etc. are important when preparing settlement demands that will be assessed by the computer.

Second, it’s critical to retain a lawyer and a law firm with a well-earned reputation for going to court. Insurance companies track and record which law firms fight for their clients by filing suit and which lawyers are more likely to just take the money and run. If your lawyer has a reputation for settling, you will get less of an offer than another lawyer with a reputation for fighting for his/her client. Normally, settlement value increases after suit is filed and may continue to increase as you get closer to the actual trial date.

Third, be prepared for a fight and you must remain patient. If the insurance company makes you an unfairly low offer and suit is filed on your behalf, the insurance company may hold on to its money until very close to trial. Insurance companies understand that they have the money and it doesn’t make much difference whether they pay today or one year from now. It’s not going to have much, if any, impact on the large insurance company. Insurance companies make money over time on their money through investments, so the delay is normally nothing but beneficial for insurance companies. You, on the other hand, have lost time from work, received less than you thought for the value of your vehicle, incurred medical bills that threaten to turn you over to credit agencies, spent through your savings and now feel the need to settle your claim. The insurance company now has you at a disadvantage. Again, an experienced injury lawyer will assist you through this difficult process and help you see the light at the end of the tunnel.

Some of the factors to consider in assessing case value include:

  1. The defendant’s behavior – The more outrageous the negligent behavior, the better the case value.
  2. The defendant – Will the defendant make a good or bad witness?
  3. The amount of insurance coverage
  4. The type of negligence claim – Minor rear-end crash versus tractor trailer setting off chain reaction collision.
  5. What county suit could be filed in – Certain jurisdictions are more favorable and insurance companies are aware.
  6. The injuries sustained and their extent and duration – Muscle strains versus herniated discs, brain injuries, fractures
  7. How the injuries effect your overall physical and mental well being
  8. The physical pain and mental suffering in the past and expected in the future
  9. Scarring – Scar to the face worth more than scar on back
  10. Medical expenses in the past and expected in the future
  11. Loss of earning in the past and expected in the future
  12. Past and future pain, permanent impairment, loss of mobility, companionship, enjoyment of the things you enjoy

No two cases are the same, and even similar facts and injuries frequently lead to widely different outcomes. What may be relatively minor for one person may be devastating for another—how can a computer make that determination? The problem is, insurance companies rely upon them to perform that function thousands of times per day. There is no humanity in using a computer to determine the seriousness of an injury and how it impacts and changes a person’s life. For that, you need an experienced lawyer on your side, one the insurance company knows will file suit if a fair offer is not made. Even so, because of the use of Colossus or similar programs, the insurance adjuster doesn’t have the flexibility to go above the computer value, so the decision must be made—settle or sue?

Ultimately, your case is worth this— what you’re willing to accept in settlement and if not, then what you are awarded at trial. A skilled trial attorney should be able to give you a pretty good idea of the value range of your claim based upon their experience.

A lawyer should also explain the settle or sue options so that a decision in the client’s best interests can be made. If the case ultimately proceeds to trial, then the value will be determined by a jury using many of the twelve criteria listed above.


Anatomy of a Work Injury Through the Eyes of a Lawyer That Cares

Aug 29, 2018 | Matt Peffer

One of the first things that I learned as a trial lawyer is that I should be educating, advising and litigating for my client. For that to happen, I need to know the same things that we were all taught as young children. What happened? When did it happen? Where did it happen? Who knows what happened? Why did it happen? And most importantly, what do you expect me to do for you? So with that, let’s explore all the areas of law that a work injury can spread to.

The Worst Day of Your Life

As part of your work day, you are asked by your branch manager to drive from your Dupont Circle worksite to the Vienna, Virginia, office to cover for a sick colleague. As you discuss this with your boss, you let her know that you have a conference call with the Atlanta office at 1 p.m. She tells you no worries; you should attend by telephone on your way to Vienna. That sounds like a plan, and before you leave, you check in with your significant other who is on their way to a job interview since they have been out of work for the last six months. Oh, and you send a text to your son that you will watch his game on Game Changer, since there will be no way you will make it back home to Maryland in time for his game. Just another day in your life, and it can’t end soon enough, you think to yourself. However, somewhere west of Falls Church, Virginia, while relaying the data to the Atlanta office, something happens. The next thing you see is your significant other holding your hand in the hospital. You are told that you are lucky to be alive because your car looks like an accordion. The tractor trailer that crashed into your car also hit another car, and that driver was not so lucky. As you try to piece this together, you notice the pins and rods sticking out of your ankle, and your back and head are throbbing with pain. You ask your significant other, what are we going to do? Unfortunately, this kind of day plays out all too frequently. As a trial lawyer, my sole goal is to try to help you put your life together again through the use of the laws that exist to protect you and everyone when this happens. So, let’s begin.

Let’s examine what happened to you. We know from the discussions at the hospital that you were involved in a vehicle crash and that your injuries were caused by that crash. There are many ways to investigate how this crash happened. We can examine the police report, the first responders’ notes and the hospital records for x-rays taken of body parts that you might not know are injured. These are just some of the initial steps I take to make sure I have a basic understanding as to how your life was changed that day.

Let’s examine when it happened to you. We know from the arrival of the first responders that your life was changed at 1:32 p.m. We know from the examination of your phone records that you were on a work call to Atlanta at the time of the crash. We know from your car data, as well as the surrounding road cameras, that you were not speeding and did not leave your lane. We also know from the letters we sent out to the company of the truck driver that they cannot dispose of the phone records or other communications that may have been taking place at the time of the crash or it will be held against them later.

Let’s examined where it happened. We know from the road cameras, towing reports, police reports and reconstruction reports (as you recall, the other car driver was not so lucky) and hospital reports that the crash happened in Falls Church, Virginia.

Let’s examine who knows what happened. We know from the investigation so far that your colleagues in Atlanta heard the crash. We know from the various reports by police that other drivers witnessed the crash. We know from the hospital that your significant other was called to the hospital and given a description of what happened, as was your boss. You also found out that statements were given to all the insurance companies involved.

Let’s examine why it happened. We know from our investigation so far that you were not the cause of this crash. However, that is not the full picture. We also have to know why your injuries happened as a result of the crash. I need to examine not only all the medical reports and tests from the hospital, but also all the treatment reports from the doctors you will need to see and pay to recover from your injuries.

How a Lawyer That Cares Protects You

As a trial lawyer, I have a pretty good idea of why injuries happen, and it usually never starts with “I meant to do that.” The fact of the matter is that all injuries can be prevented—it’s just a question of when it could have been prevented and did the person or entity want to invest the time or money it would take to prevent the injury. Now join me on a journey to put your life together again through the laws that may be available to you.

I know of only two ways that I, as a personal injury lawyer, can put your life together again under the laws: medical treatment and money. I put them in that order because if I take care of your needs, the money will take care of itself. Your first cause of action to rectify the harms brought to you and your family is to pursue a negligence action against the responsible parties. We look at many things when considering who to hold responsible for your harms, including where should we hold those parties responsible. The responsible parties to take care of you medically and financially can be the driver of the truck, the company who employs the driver of the truck, the parties responsible for the design of the roadway you were on, your employer or your own car insurance, among others. In your case, we will decide together which state or federal court we should hold the parties responsible in so that we can put your life together again. In a negligence action, the laws are designed to address both your economic and non-economic harms (pain and suffering), and depending on the state, we will want to pursue it in a court that provides the fullest recovery. However, this will take a considerable period of time, and you have bills to pay and a life to continue while you receive medical care.

We should also look at what other laws there are to protect you. Your injury arose out of and in the course of your employment, and therefore the workers’ compensation laws are available to help you medically and financially. While you are recovering and not able to work, the workers’ compensation laws of at least the District of Columbia, and maybe the surrounding DMV, will provide you with lifetime medical care at the expense of your employer’s workers’ compensation insurance, as well as tax-free weekly income replacement benefits to help financially during your recovery. This is an important law that is sometimes overlooked, but for injuries at work it is invaluable to you, since your employer is required to purchase them as part of your employee benefits.

If we believe that this life changing injury has permanently restricted you from engaging in certain job duties of your employment, you may have rights under the American with Disabilities Act. It is not okay that your career and your family’s right to happiness has been put in jeopardy as a result of this injury. Although a personal injury attorney may not specifically handle this part of your case, he or she should be able to educate as to who may be able to help.

If we believe that this life changing injury has completely eliminated your ability to ever return to gainful employment, you may have access to medical care and financial assistance under the social security laws of your state. This may include a claim for social security disability benefits which you have been paying into because of your employment. Once again, a personal injury attorney should be able to educate you as to what steps to take to protect this right. You may also have been prudent enough to have purchased a disability policy in case of your inability to work, or even your employer, as part of your employment, has a disability policy on your behalf that you could turn to for medical and financial assistance.

What You Should Expect

Now that you have been educated about your rights, you need to be advised as to what your best course is to put your life back together. We will discuss not only the time and effort it will take, but a personal injury will be open and honest about what it will cost you. In most cases, it will cost you nothing as personal injury cases are handled on a contingency basis. This basically means that your personal injury lawyer will not get paid unless you get paid. As all of us are aware, if it’s not worth fighting for, then it is not worth pursuing. I never have represented a person with a life changing injury and heard them say, “My life and my family’s life is not worth fighting for.”

At each step of the process, timely advice is the key to putting your life back together. Therefore, communication with your personal injury lawyer is a sure sign that they care about you. This is all about you. Without you, there is no personal injury case. This relationship is the foundation on which your recovery will begin.

As the saying, “put up or shut up” implies, we are going to have to fight for your rights. Your life changing injury happened, and somebody has to say, “I was the responsible party.” As simple as it is to say, I’m sorry for what I have done, it’s not that simple when money and reputation are involved. In order to put your life back together again, a personal injury lawyer may need to go to trial to have a jury of your peers hold the company of the truck driver responsible, or to force your underinsured insurance policy to pay if they refuse to pay you the benefits you purchased from them. However you choose your fight and against whom you fight, make no doubt about it, you will need a personal injury lawyer to lead the way.

As I said earlier, one of the first things I learned many years ago about what a personal injury lawyer should do: Educate, Advise, and Litigate for your clients, I have spent over 20 years of my life discovering that those are the tools of a personal injury lawyer. I have also discovered that in order to be a personal injury lawyer, I must always strive to be:

A lawyer that will always have time to listen to you. A lawyer that will always have time to put your interest first. A lawyer that will always fight for you.