Attorneys Krista DeSmyter and Kevin Stillman fought and won a battle ensuring that all injured workers in the District of Columbia get their day in court during the pandemic . Lawyers for insurance companies were trying to delay all workers’ compensation hearings until the COVID-19 pandemic ended.

To protect injured workers’ right to medical care and wage replacement during the pandemic, the District of Columbia government ordered workers’ compensation hearings to resume by video. In an effort to delay and deny their obligation to pay benefits, lawyers for insurance companies asked for postponements because they were entitled to an “in-person” hearing. Many workers’ compensation judges agreed and continued hearings until December. The judges noted that hearings would be further delayed if “in-person” hearings did not resume by December.

This is obviously terrible for injured workers who depend on workers’ compensation benefits to get the medical care they need to recover and to have money to support their families.

Krista, Kevin, and the ChasenBoscolo trial team were ready. We knew insurance company lawyers would try to indefinitely delay workers’ compensation hearings. We had a plan to stop them. Using a rare legal technique called an “interlocutory appeal”, ChasenBoscolo appealed eight Orders continuing hearings due to the pandemic. The ChasenBoscolo trial team, led by Krista, Kevin and David Snyder, researched and refined their arguments. We found decisions from workers’ compensation judges in other jurisdictions deciding that employers and insurance companies were not entitled to use the pandemic to indefinitely delay an injured worker’s day in court. We argued that it was unfair for lawyers for insurance companies to force injured workers to be exposed to the risk of COVID-19 in order to get their day in court.

On August 25, 2020, ChasenBoscolo won the appeal. As a result, injured workers are entitled to have their video hearings unless lawyers for the insurance companies have specific, good reasons that a workers’ compensation judge cannot decide the case if they hear evidence by video.

This is a big win for all injured workers in the District of Columbia. Lawyers for insurance companies cannot use the pandemic to delay or deny injured workers from their day in court. ChasenBoscolo trial teams will continue to fight in court to get our clients the medical care needed to recover and the monetary benefits needed to support their families.

This week, Congress continues negotiations for another economic relief package benefiting millions of Americans. One aspect of the legislation concerns liability for COVID-19 related illnesses. Republican leaders have proposed a law that, if enacted, would be bad for consumers, workers and patients. We all want and expect safe schools, workplaces and medical facilities. However, the proposed law would make it extremely difficult for those injured by COVID-19 to hold negligent parties responsible. Rather than benefit corporate America, we encourage Congress to protect the health and welfare of the American public.

The American Association of Justice has outlined the key points of this destructive legislation. We stand with the AAJ in their battle against the Corporate Liability Immunity bill.

A Danger to America’s Workers and Consumers

Senators Cornyn and McConnell want to remove liability—the most effective, and often the only protection that workers, patients, and consumers have to encourage businesses to act reasonably and promote safety.

If Congress gives corporations broad liability immunity, workers and families will have no remedy when corporations act negligently or recklessly or fail to protect them from the virus.

The bill would essentially wipe out medical malpractice cases for the next five years, and:

• moves all COVID-19 exposure, injury, or death claims to federal court;
• plaintiffs must prove that a business acted with conscious disregard because of an extremely heightened gross negligence standard;
• plaintiffs would have to meet raised evidentiary burdens including proving their cases by “clear and convincing evidence;”
• preempts all state laws including tort law but for those that are LESS protective of individuals;
• suspends federal employment and disability rights statutes such as the ADA, the Civil Rights Act, and the Fair Labor Standards Act for five years;
• eliminates joint and several liability in most COVID-19 cases; and
• eliminates or severely limits non-economic damages in many health-related claims including nursing home claims.

  Take Action Now. Contact your member of Congress and urge them to reject this destructive bill.

Our Trial Team is Fighting for You

The courts and workers’ compensation commissions in Maryland, Virginia and the District of Columbia continue to navigate the stay-at-home orders in each jurisdiction. Our trial team has been actively involved in the reopen plans for many of the courts and commissions so that our clients can get their day in court, even if that is done virtually.

The Maryland Workers’ Compensation Commission has scheduled hearings, both in person and by web conference beginning June 8, 2020. In Virginia, the Workers’ Compensation Commission will begin in-person hearings on June 11, 2020. They will continue virtual hearings as scheduled. The DC Office of Workers’ Compensation is also scheduling virtual and telephonic hearings. We continue to monitor the reopening plans for the courts in Maryland, Virginia and the District of Columbia. Civil trial dates have been scheduled for the fall. We are working on your cases. If you have any questions about your case, a postponement or how we continue to work for you while working from home, please do not hesitate to contact us.

David Kapson
The Compensation Review Board, in a unanimous decision by all of its members, agreed that the concept of “apportionment” does not exist in the District of Columbia workers’ compensation system. This means that, even if an injured worker has had a prior injury and re-injures that same body part while at work, their employer and its insurance company must not only provide full lost wage benefits and medical treatment, but are also completely responsible for the resulting permanent injuries and effects of those injuries. This is a victory because the employer and insurer were attempting to limit their responsibility to only the new injury, without consideration of our client’s prior injuries, which would have created a financial windfall for the insurance company while leaving our client not fully cared for as a result of his work injury.

Shari Boscolo and Alex Rogosa
Shari had a big month. She settled a case for a DC police officer who was on bike patrol. The officer was struck on the bike when a car failed to stop at a stop sign and hit the officer causing multiple injuries including a broken wrist. And she was able to resolve a case for a client who tripped over a broken post in a parking lot as she was going into a business. The post through removed still had part of its base protruding from the ground. And the shopping center had been aware of the condition for a month. Shari is a super-hero because she resolved both of these cases with the courts closed.

Ben Boscolo and Melody Hayes
Defendant rear-ended car in which our clientl was a front seat passenger. Defendant alleged that driver of the car that our client was in, cut him off. Driver of the car in which our client was a passenger alleged he stopped because a phantom vehicle cut him off. Initially filed against only Defendant . After discovery added driver of our client’s car (Erie). The trial was set in March. We prepared for trial including motions to limit the evidence and took several depositions to preserve testimony for trial. The case got continued to the fall. Negotiations resulted in a settlement for almost 4 times the pre-litigation offer.

Mike Reiter
Mike Reiter handled a case for our client where the insurance company was initially contesting liability despite there being no legitimate liability argument. Our client suffered a traumatic brain injury. We told the insurance company from the outset that it was worth the full policy limits and the insurance company eventually came to their senses and tendered the full policy before we had to file suit.

Mike Duncanson, Tom Teodori and Mike Reiter
Our client was injured in a car collision when the defendant took a turn too fast and struck our client head on. Our client’s arbitration hearing was on February 20, 2020. The last settlement offer before arbitration was under $25,000.00 On March 17, 2020, after we started working from home, the arbitration order was issued and our client was awarded more that three times the last offer.

Our client was injured in a car collision on April 27, 2017. As a result of the crash she underwent surgery on March 4, 2020 on her right ulnar nerve. Mike Reiter and Mike Duncanson held firm and secured the policy limits carried by the defendant. Now we can pursue additional coverage in the case. If successful, we can triple the result for our client.

Skaketta Denson
Throughout the life of this case, Shaketta Denson and her teammates have had to fight more than usual for her client as a result of the defendants’ lack of participation. After failing to participate in written discovery and depositions, the defendants attempted to use the Coid-19 virus as a tactic to further delay the case. Subsequent to Mrs. Denson winning a motion compelling the defendants to provide written discovery responses, she won a second motion compelling the defendants to produce recorded statements, which they refused to produce claiming work-product. But wait…that’s not all. Mrs. Denson celebrated a third motion victory, compelling the defendants to appear for remote depositions amidst the pandemic, proving that this unprecedented time in our country has required everyone to adapt and utilize foreign technology and procedure, and that even defendants and defense attorneys must be held to this nationwide standard. When ChasenBoscolo says we will fight for you, we mean it. Hats off to Shak and her team.

Tom Teodori
Like this time we are experiencing, Tom had two almost unprecedented wins against a high risk automobile insurer, who has a reputation for low ball offers, delays and refusing to pay policy limits. Tom got this insurance company to pay policy limits for not just one of his clients, but two of them.

When the stay at home Orders were correctly entered by the leadership of Maryland, Virgina and the District of Columbia, ChasenBoscolo started its Hero Client Initiative. Each week, we are recognizing one of our clients who, as an essential worker, risks their health for our communities by simply doing their job every day. Each week the firm is providing lunch to our client’s work place. The ChasenBoscolo Team and our children are writing thank you notes and creating artwork personally thank our Hero Clients.

So far we have provided lunch in honor of our hero clients to the following businesses:

• Prince William County Fire Department
• Giant Food
• Lawrence Street Industry
• Class Produce

Please watch this video from Benjamin Boscolo, Owner & Chief Executive Officer as he shares an updated message on how the firm is taking care of its clients and teammates during the Covid-19 pandemic.

Food Banks

Critical Support

Family, Health & Financial Assistance

Hispanic Community Services

Courts

Go Home 2020, nobody likes you…

If 2020 was an computer operating system, we would re-install it and start over. It has been a wild year and we are only in April. I can already see the “Bye Felicia” or “2020 is like a bad date, we are going to do all we can to forget this year ever happened” memes on December 31, 2020. But nothing has struck this year more than coronavirus (COVID-19). It has been hard for so many Americans, especially those on the front lines in the hospitals and for those who have lost their jobs through no fault of their own.

With all the bad that COVID-19 has brought us, I believe there is some good that has come from it. I live in a Northern Virginia suburb where sidewalks, bike lanes, and mixed use paths are plentiful. On a normal, nice day there are people using those paths but nothing has compared to the number of people I have seen outside using them since we all started staying home because of COVID-19. And frankly, I think that is good – provided people maintain their social distance of at least six feet from other people and do not go out in large groups. I think we as Americans need to slow down and literally smell the fresh air more often. It will be good for both our mental and physical health in the long term.
I have seen families and people in and around my neighborhood I have never seen before either running, walking, or cycling. And I think this is great. But let’s remember, as we are enjoying some time outside of our homes, we must be cognizant that there are still road rules pedestrians, cyclists, and cars must obey and consequences if we do not.

This blog will discuss some of the more common road rules for pedestrians, cyclists, and cars and what to do if you are injured by someone else’s wrongdoing (negligence). It will also discuss why following these road rules are very important if you are injured. While I will not discuss every road rule (because it would be a book), I am going to discuss the more common ones we may not be aware of but encounter every day.

Walkers, Runners, and Cyclists Using Sidewalks and Dedicated Paths

As I said in the introduction, I think it is great that we are going outside more in these trying times (again, maintain six feet and do not go out in packs!). Exercise makes people happier and less stressed. But while out on the road and the paths, we must remember that there are road rules we must abide by and following these laws are going to be very important if you are injured while enjoying some fresh air. While I do not agree with how some pedestrian and cyclist laws are written, they are the laws right now until we change them for the better. Let’s dive in to some of the most basic road laws pedestrians and cyclists must abide by when using sidewalks and dedicated paths.

First, the crosswalk. We’ve all crossed in a crosswalk before and you probably have in the past few days and weeks being stuck at home. We all have see the crossing signals consisting of the walking man and the red hand with perhaps a countdown clock. You might be thinking to yourself, “I see that red hand more than I see the walking man!” This is one of those policies I think needs to change – have a longer walking man be visible; but I digress.
Regardless of the length of the walking man being visible, a person can only cross a crosswalk when that man is visible? If you cross without that walking man being visible, there is a jury instruction that will destroy your case. Virginia Model Jury Instruction 14.050, it states:

“A pedestrian has a duty not to start to cross a highway [street] in the direction of a “Don’t Walk” signal, and a duty, if he partially completed crossing on a “Walk” signal, to proceed to a sidewalk [safety island] while the “Don’t Walk” signal is showing.

If a pedestrian fails to perform either duty, then he is negligent.”

Secondly, it is important for pedestrians to know that they must use the sidewalk if one is present. But what is not important is what way you were walking or cycling (if allowed by local law) on the sidewalk. Some people may remember around this time last Spring a Fairfax County Police Officer was making a right turn onto Richmond Highway off of a side road and hit a cyclist entering the crosswalk.
While the cyclist in this instance was in the wrong (he entered a crosswalk when the red stop hand was visible – see paragraph above), the Fairfax County Police Department issued a statement that the cyclist was riding southbound on the northbound side of Richmond Highway. That is not illegal. There is no law that states you must be walking or cycling on a sidewalk or dedicated path in the same direction as traffic. Just remember to use the sidewalk if there is one and if there isn’t one, be sure to walk or run against traffic. Alos remember to never bike against traffic.

Road Cyclists

Now, let’s talk about road cyclists using the roads (i.e. not on a dedicated path or sidewalk).
First, what should I wear? A helmet? Bright colored clothes? The obvious answer is a resounding “YES!” While there is no statewide helmet law, the Virginia legislature has given localities the authority to mandate children 14 or younger to wear a helmet. But not wearing a helmet if you are older than 14 years old could be seen as contributory negligence if you are riding on the road, get hit, and injured (see Contributory Negligence section below for more information). The reason being, you are not being safe. It is probably going to be scene as common sense to wear a bicycle helmet when riding on the road.

Same for bright colored clothes. I am not talking about wearing an ugly Christmas sweater that lights up. But something where cars can see you – yellow, pink, orange, etc.
Remember to also have lights on your bike if it is dark outside. This is not just a safety suggestion but a Virginia law. So many times I see cyclists riding in the dark without so much as a taillight. I cringe when I see that because it is unsafe for everyone at that moment. If people cannot see you because you do not have a front and rear light and you are hit, that is most likely going to be contributory negligence. It probably will not matter that you were following all other road rules and the person that hit you was driving 50 MPH in a 30 MPH zone. Be sure to have lights!
Also, cyclists must obey stop signs and red lights. Bicycles are just like cars when it comes to these traffic control devices; you must stop. This is one of those laws that I personally believe does not make sense for cyclists (and broader safety) and I think Virginia should adopt the Idaho Stop Law or its hybrid approach that was recently adopted in Delaware called the Delaware Stop. But again, I digress.

In Virginia, cyclists must come to a complete stop and wait for either their lane of traffic to turn green if they are at a traffic light or wait for their turn while at a Stop sign. If a cyclist does not obey this traffic law and gets hit in an intersection, there is very little any attorney can do for you in Virginia.
Additionally, if there is a bike lane, a cyclist should ride in the bike lane. But, what if there isn’t a dedicated bike lane? If there is no bike lane, a cyclist must “ride as close as safely practicable to the right curb or edge of the roadway” but there are a bunch of exceptions to this law and I encourage you to read them.
Now, let’s say there is a bike sharrow in the road. What the heck is a bike sharrow? Here is a picture of one: Bike Sharrow. What do these mean? They show where a cyclist should be riding on the road. They are meant to guide cyclists on the best route possible through a certain area. That means, if they are in the middle of the lane, cyclists are allowed to be there.
Lastly, if there is a road sign that states cyclists may use full lane, then they are allowed to use the full lane. That is their legal right.

Drivers and Cars

Drivers still have responsibilities too on the road even though the roads are practically clear right now. The road rules still apply to drivers and the cars they operate but with the uptick in pedestrian and cycling traffic, drivers should be aware of how to keep themselves safe as well.

First, when cars approach an intersection controlled by a stop sign or a red traffic light, they must stop behind the white horizontal line. Entering the intersection before coming to a complete stop is against the law and unsafe for pedestrians that may be legally attempting to cross the intersection.

Secondly, if a driver sees a pedestrian in a crosswalk, that driver must yield to that pedestrian. Not doing so is not only a violation of state law, but I think it is also just plain rude not to let a person to finish safely crossing the street. Not doing so could make the driver liable for the pedestrian’s and/or cyclist’s injuries.
Now, what do you do when you come across a bicycle that you wish to go around? That answer is simple, a car may pass a cyclist but that car must give that cyclist at least three feet of space while passing.
This is really for safety of all parties. What I think drivers forget it (and I have been guilty of it myself over the years) is that there is a human being on that bicycle and even in the car in front of you. We all have families, people who love us, and people who do not want to see us injured. Remember, we are all humans. Now, if a car does not follow this passing law and the cyclist is obeying the law, that driver could be liable for the property damage and injuries the cyclist sustains.

One last thing on cars, always keep a lookout for municipal signs that say “Right Turn Yield to Bicycles.” They will look something like this picture from this article: Right Turn Yield to Cyclists.

Contributory Negligence

I have mentioned contributory negligence a few times in this blog and here is where I explain it further.
Virginia is one of a handful of states (along with Maryland and Washington, D.C. in most cases) that practices that doctrine of contributory negligence. In my opinion, it is a draconian law that is unfair and needs to be overturned and rewritten by the Virginia legislature.

What this legal doctrine means is, if you are 1% at fault for your injuries, you probably will not recover any money damages. For example, let’s say you are out on a run and step into the crosswalk with the red stop hand visible and the countdown clock going. And let’s say that clock still has 25 second remaining – plenty of time for you to get across the street. While in the crosswalk a car hits you and injures you. You are most likely contributory negligent and will not recover and money damages because you started crossing the street when the red hand, not the walking man, was visible. Remember how I said following the rules was really important if you get injured by the acts of another? This is why.

What to do If You’re in a Collision and Injured

During our coronavirus isolation, if you find yourself out walking, running, cycling, or driving (essential travel only!), and get into a collision, what should you do? The answer is a lot. But, here are some simple but important steps you can take.
First, stay calm. Yelling at the person who hit you does not do anyone any good, especially yourself. It is understandable and common for you to be upset, in shock, frustrated, and/or angry. Nobody would blame you there. However, how you approach the situation is important because whatever you say and how you say it can be used against you in court. A jury might not look too kindly on a claimant that lost their cool.
Second, always call the police. By calling the police, they may create a police report. Police officers in Virginia do not have to issue police reports if there appears to be less than $1,500.00 in property damage. But if you are injured, maimed, or there is property damage of more than $1,500.00 they must write and file a police report. That also means the police officer might issue a citation to the wrongdoer. That is important because it helps you and your attorney identity the wrongdoer, their address, their insurance company, other identifiable information, and a written record on how the collision occurred.

Third, collect the other person’s or persons’ insurance information. Without it, it makes life extremely difficult for yourself and if you decide to hire a personal injury attorney. If soon after the collision you are considering hiring a personal injury attorney like us, it is probably best not to provide a statement to the wrongdoer’s insurance company. Talk to an attorney first.
Fourth, take pictures of the scene (if it is safe to do so!). We all have smartphones these days with pretty good cameras. Take pictures of any property damage (yours and the wrongdoer’s), the scene itself, and yourself if you are injured. Pictures are literally worth a thousand words and will preserve vital evidence as your case progresses.

Fifth, if you are involved in a hit and run, it is very important that you contact your insurance company immediately and let them know what happened.
Last, if you are injured, go to the hospital, urgent care, or your doctor right away. However, in this coronavirus pandemic world we currently live in, many people are scarred to go to hospitals and/or they find their doctor’s offices closed. We at ChasenBoscolo understand and we want to help. We can help guide you through these uncertain times and provide the advice necessary to ensure you get the help you need and help your case.

Conclusion

Just because you are injured in these uncertain times, does not mean ChasenBoscolo is not here to help. While our offices are closed, we remain open and ready to help anyone who has suffered injuries through no fault of their own and has had their life turned upside down because of those injuries.
As I stated at the top of this blog, while coronavirus is not good for really anybody, it has been great to see people and families get outside more (while practicing social distancing, of course!) and enjoy the fresh air. Honestly, I hope that continues long after this pandemic has left us. But if you find yourself just trying to enjoy some fresh air and someone breaks the road rules and injures you, we are here to help.

Stay safe everyone!

Dear Leaders: We write to you as the owners of a firm that is dependent on the judicial system for economic survival. We urge you to immediately implement policies designed to allow the judicial system to rapidly recover when it is safe to do so.

CHASENBOSCOLO has been in existence for thirty-fours years. We try cases in State and Federal courts and before the workers’ compensation agencies in Maryland, Virginia and the District of Columbia We employ nearly 100 women and men. These people and their families count on us for financial support. Our ability to survive economically depends on access to the judicial system.

We represent citizens of this state who, by no fault of their own, were injured and in financial peril before the Covid-19 crisis. Our clients and their families depend on our firm to help them recover from the financial hardship their injuries caused. Our ability to protect our clients from financial hardship depends on access to the judicial system.

We support social distancing. We support the aggressive actions taken by our leaders to keep us safe. We fear the health risks to our families, loved ones and team. Beyond that, we worry about the severe financial risks we face. A vibrant judicial system is essential part of the return to economic normalcy.

JUDICIAL SYSTEM

The judicial system is basically closed to the public. We urge the that some simple actions be taken to allow the judicial system to function during the shut down and be ready to rapidly recover. First, the Court should Order lawyers and their clients to use the time they have at present to prepare their cases remotely. This means requiring all forms of preparation to be done remotely and that all deadlines remain in place. The Courts can modify the Rules of Procedure to make clear that the shut down will not impact deadlines. Second, plans should be made to recall retired judges to hear cases that have been continued during the first 90 days that the Courts reopen.

Third, lawyers should be ordered to prepare to present the cases that were postponed by the Covid-19 interruption within 90 days of the reopening of the judicial system. We recognize that there are many, many details and people required to execute this strategy. We realize that it will challenge all of us who are part of the judicial system. However, this virus presents an unprecedented challenge to our society. Bold, unprecedented action is required to respond to and overcome this challenge. Our firm stands ready to assist in any way in planning for and executing a system to jump-start the judicial system when it is safe to do so.

WORKERS COMPENSATION

The workers’ compensation systems are essential to the economic well being of disabled members of our communities. The money benefits to which injured workers are entitled help them care for their families and pay their bills. Bill paying is essential to economic recovery. The workers’ compensation systems are also basically closed to the public. There is a simple action that can be taken now to correct this. The workers’ compensation systems are administrative. Commissioners and Administrative Law Judges decide cases. An executive Order requiring the resumption of all hearings by videoconference will immediately put many people back to work. This will not violate any social distancing Orders. Most importantly, citizens who are dependent on workers’ compensation benefits for financial support will have access to the system. This system is already in place in the State of New York. Our firm stands ready to assist in any way in planning for and executing a system to jump-start the judicial system when it is safe to do so We hope that you will consider these proposals and reach out to our firm for support. We appreciate your leadership in facing this unprecedented generational health crisis. We look forward to working with you to help rapidly restore a vibrant, functioning judicial system. Thank you in advance for your consideration.

Very truly yours,
Benjamin T. Boscolo

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.

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.

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.