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Duels Over Dual Employment: What happens when I am injured at work, but I have two jobs?

Mar 19, 2018 | David Snyder

As recently as 2016, over 7.5 million Americans held multiple jobs in order to make ends meet. An on-the-job injury can cause a huge disruption to a person’s life, but an on-the-job injury for a person working for multiple employers can be particularly devastating.

When you are injured on the job, there are certain benefits that your employer’s workers’ compensation insurance company must provide to you under the laws of either Maryland, the District of Columbia or Virginia. Despite the fact that each jurisdiction has its own wrinkles through the laws, these benefits are largely the same. As a brief aside, I hesitate to use the word “benefits,” because that makes it sound like you are gaining something by getting money from the insurance company when you are injured. In fact, what these payments ensure is that you are not losing your livelihood, your ability to put food on your table or your ability to keep a roof over your head. Because the laws of each jurisdiction refer to this money as “benefits,” however, I will use it here.

What are wage replacement benefits?

In my years of handling workers’ compensation cases, I can tell you that one of the most important types of 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.

When an injury at work causes you to not be able to work and you lose your regular stream of income, it can have a devastating effect on both your life as well as the lives of your family members for whom you must also provide. Because of this, making sure that my clients are receiving their full temporary total disability benefits in a timely fashion is always my number one priority when I am first hired by a new client. I have had the great fortune to develop some tools for making sure that this happens sooner rather than later so that my clients’ lives are disrupted as little as possible by their work injuries. Insurance companies, however, are not always willing to pay these benefits in full or on time, which means that we sometimes must go to court to fight for our clients’ rights to their benefits.

But what if I’m working 2 jobs? A fight over temporary total disability benefits for one of my clients recently gave me the opportunity to change the law for the better not just for that particular client, but also for all injured workers in the District of Columbia.

For a little more background, in the District of Columbia, 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 injuries are entitled to be paid based upon lost wages from both jobs. 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 you are injured while working at your part-time job and miss time from a much more lucrative full-time job, the state of Maryland has determined that you are out of luck and just have to deal with the very limited income replacement benefits. See why I hate to use the word “benefits”? In Virginia, injured workers can only stack their wages if their second job is similar to the job at which they are injured, but not otherwise. Again, this is hardly a “benefit” to someone who works two different types of jobs to provide for themselves or their family.

How We Changed the Law in D.C. to Help Injured Workers

Back to our story. My client in this particular case was working two jobs at the time she was injured. 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. When she was originally injured, her employer was still able to provide her with modified work so that she could continue earning an income. Her part-time employer, however, could not provide work within the physical restrictions that her doctor imposed on her. Actually, her doctor restricted her from working at her part-time job because he was concerned that she would overexert her injured shoulder. 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.

However, at a certain point in time, my client then injured her other shoulder and the originally injured shoulder got worse while she was in physical therapy. At that point in time, her employer was no longer able to provide modified work for her. 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 insurance company disagreed, and we had to go to a hearing. We won that hearing and the employer was ordered to pay my client based upon her lost wages from both jobs.

The employer was not satisfied and appealed to the Compensation Review Board (the highest level of appellate review within the D.C. Department of Employment Services). The Compensation Review Board agreed with the administrative law judge and we won again. The employer was still not satisfied and appealed one last time to the District of Columbia Court of Appeals. The District of Columbia Court of Appeals is the highest court in the District of Columbia and therefore, what the Court says is final. In July of this year, the Court of Appeals issued a decision that would affect all injured workers in the District of Columbia for the better.

First of all, we won, which was awesome for my client (and, of course, was the right decision in my opinion). The Court noted that the issue in our case was one of first impression; somehow the Court had never had the opportunity to rule on this issue. That, in and of itself, is pretty exciting to me because it’s an opportunity for me to affect a great change in the law to the benefit of many people, both now and in the future.

  • If an injured worker works more than 1 job and can’t work at their second job because of a work injury from their first job, they are entitled to compensation for those lost wages from the second job, too.

In response to the employer’s argument that the Court would somehow create confusion and a conflict of legal principles if we prevailed, 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.” Basically, the Court implicitly recognized that people do work different jobs that can both 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. As noted above, I think this is the most logical approach of the three local jurisdictions. 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.

  • Employers have to show that alternate jobs don’t just actually exist, but that the injured worker could actually likely get that job.

The Court also delved a bit more into the evidentiary burdens of both injured workers and their employers at hearings. The Court reviewed more well-settled case laws that allowed an employer to escape liability for payment of temporary total disability benefits if a job might be available within an injured worker’s physical restrictions from his or her doctor. The Court, however, went one step further in this case and stated that an employer “must establish job availability in fact,” meaning that the employer “must prove that there are jobs reasonably available in the community for which the intervenor is able to compete and which she could realistically and likely secure.” Essentially, the Court prohibited what used to be the normal practice of employers/insurers and their defense attorneys coming into court and stating that a job would be available without providing any more evidence than that mere statement.

  • Defense doctors who work for insurance companies can’t be the only evidence used to show that an injured worker could work.

Similarly, the Court prohibited employers from relying solely upon an opinion from a doctor selected and paid by the employer and insurance company to render an opinion about an injured worker’s ability to work. The Court noted that, logically, all a doctor’s opinion may (or may not) do is establish that an injured worker could work in some way, but it does not establish that a job is actually available. That makes sense to me because, unless the injured worker worked in that doctor’s office (and we would then be discussing conflicts of interest), how could the doctor ever know the business dealings and job availabilities at the employer’s place of business? Inexplicably, judges had previously allowed the defense attorneys to get away with this. Fortunately, the Court of Appeals saw through that charade in this case and clarified the law, making life much better for injured workers. My colleagues and I have already been able to apply this new requirement to the benefit of our clients in hearings.

  • Just because an injured worker suffers a second new injury doesn’t mean the employer is off the hook for paying wage replacement benefits.

Finally, the Court found that my client’s subsequent injury to her other shoulder did not affect her rights to ongoing temporary total disability benefits. The Court focused on the definition of “disability,” which means an injury that causes a loss of wages. Although she had a new injury, her disability (i.e. her inability to work in a full-duty capacity) was unaffected by the second injury. This was specifically stated by her doctor, who indicated that her physical restrictions were still in place and unchanged by the new injury to the other shoulder. This was an important new development in the law because previously employers and insurers would rely upon the mere happening of a new injury to terminate any and all present and future benefits for our injured clients, again putting them into a predicament.

A ChasenBoscolo Victory for Injured Workers in the Maryland Court of Appeals

Even more astounding, in the same week that the D.C. Court of Appeals decided in this case that a subsequent injury did not necessarily impact an injured worker’s rights to ongoing wage loss benefits, the Court of Appeals of Maryland (which is the highest court in the state, just like the D.C. Court of Appeals) issued an opinion in another case of ours dealing with a similar issue. In that case, my colleague’s client had sustained a very serious injury to his back that caused him to have a permanent disability. Years later, he was involved in a minor altercation that, for a brief period of time, made his back hurt more. The employer and insurance company jumped all over that new incident to deny our client’s benefits. After a long and drawn out fight at the Maryland Workers’ Compensation Commission, the Circuit Court for Anne Arundel County, the Court of Special Appeals of Maryland, and ultimately the Court of Appeals of Maryland, found that our client’s subsequent minor injury had no impact on his disability as a result of his work-related injury.

All of the points of law held or clarified by the D.C. Court of Appeals and Court of Appeals of Maryland in these two cases represent important victories for the rights of injured workers. As a lawyer, I am incredibly proud of the work we do here at ChasenBoscolo to protect not just our clients, but also all injured workers, whether it be through litigating their cases in front of commissioners, administrative law judges or juries, or through our appellate advocacy to change the law for the better.

Work Injuries: How Did I Get Here?

Mar 05, 2018 | David Kapson

Hello, my name is David Kapson, and I am an effective and experienced personal injury attorney with a proven track record of securing medical treatment and money benefits for injured workers in the DC metro area. The purpose of this blog is to provide a resource for folks who may find themselves struggling with confusing questions and difficult decisions following a life-changing accident at work. But before we get to that, let’s start with two things I love: pop culture and stories.

From Wilkes-Barre to Washington

In 1980, the band Talking Heads released their iconic single, “Once in a Lifetime.” As the opening verse unfolds, Heads singer David Byrne asks, “How did I get here?” Many people that I have met and represented over the past seven years ask themselves the same question following a life-changing injury that occurred in the course of their employment. For some, the circumstances that lead to the question, “How did I get here?” include medical expenses, difficultly getting access to medical treatment and the heavy toll of disabling injuries that keep them out of work. Oftentimes, these injuries lead to effects that ripple through the lives of the injured worker and their families, including the inability to pay bills, buy clothes and school supplies for children, put presents under the tree at holidays, or in some cases, keep a roof over their families’ heads or food in their bellies. Let me provide a few tips if you suffer a work injury and find yourself asking, “How did I get here?”

But first, let me tell you a little about how I got here. In 1980, while the Talking Heads were taking the New York City music scene by storm, my parents were getting married in a little town outside a little place called Wilkes-Barre, Pennsylvania. This is the coal region of Pennsylvania—a blue-collar area in the Northeast where, for the most part, people made a living with their hands or their backs. Most adults I grew up around had a high school diploma, worked a trade, worked in construction and carpentry or worked in the hotel and restaurant setting. My grandfather on my mother’s side was a coal miner, starting out in underground mine shafts, and later above ground on strip mines. My mother’s brother also worked in the strip mines, and later as a carpenter where a work injury lead to his permanent and total disability. My aunt was a nurse. My grandfather on my father’s side worked for the phone company, mostly 15-20 feet above ground hanging cables on telephone poles. But I grew up running around behind the scenes of a hotel in Wilkes-Barre where both of my parents worked. In fact, it’s also where they met, but that’s another story.

My father started as a member of the banquet set-up team at the hotel. This was a physical job that required him and his co-workers to set up and break down hundreds of dining tables, chairs, and equipment in the hotel’s four large ballrooms for events like weddings, bar mitzvahs, awards dinners, meetings, etc. Eventually, after working at the hotel through college, he was able to rise through the ranks to a management position and helped to manage the hotel’s inventory supply. My mother was a banquet waitress from the time before I was born through the time I was about half way done with high school. She was then promoted to the banquet manager and began to lead a team of banquet servers and set-up workers. Today, she continues to lead the hotel’s entire banquet and catering division and is the area’s go-to person for all your wedding planning needs (plug, plug, Mom!).

My dad worked days and my mom worked nights, so most of my afternoons were spent at the hotel waiting for my dad’s shift to end and my mom’s to begin. My mom would drive me there, and my dad would take me home with him from work. I didn’t know it at the time, but my path towards helping people with work injury claims started to form when I was just a kid running around that hotel. I saw behind the scenes. I saw how physically demanding a customer service job in the hotel and restaurant industry can be. I understood the risks of how dangerous a slippery floor can be, or how a tiny mistake with a very sharp knife can change a person’s life and livelihood, or how lifting a heavy box could take a person out of work for months or even years.

Later, during high school and college, I started working at the hotel for my mom as a banquet server, and eventually as a bartender. Not only did I learn where to set the salad fork and where the bread plate goes while properly setting a table (skills I still use today to impress my wife), but I also lifted thousands of heavy trays stacked with dishes, silverware, glasses, etc. I spent many long hours and shifts on my feet and scrambling to keep the customers happy. Even as an eighteen-year-old, it was physically demanding hard work. Many of the people I worked with, especially the waitresses at that time who were in the 40s, 50s and even 60s, had made a career and supported families from the same type of work. Without my knowing, all of this experience shaped who I would become. Later, I would realize that not only did it shape me, but it shaped WHO I wanted to help in this world: honest, hardworking people who suffer a life-changing injury on the job.

My parents’ hard work gave me the opportunity to go to college and eventually law school. I sometimes tell people that I stumbled upon workers’ compensation as the area of law that I practice the most, but when I reflect, it really feels like it was my destiny all along. Now, after seven years in practice, I cannot imagine being an attorney without devoting my career to the purpose of protecting the rights of injured workers and putting their interests first.

What You Should Do if You’ve Been Hurt on the Job

So, that is how I “got here.” Let us now get to the guide or resource portion of this blog post. If you suffer a work injury and find yourself asking, “How did I get here?” remember to do these three things:

  1. Be honest.
  2. Get medical treatment.
  3. Attempt to return to work when medically cleared to do so.

Let’s look at each of these individually.

Be Honest

Sometimes, the best legal advice is the most obvious. There is a stigma in society attached to work injuries and the people who suffer them: “liars, fakers, milking the system, etc.” We have all heard it. It’s out there in the world. However, this advice is not meant for someone trying to game the system or defraud their employer by faking a work injury. It’s for the honest, hardworking person who suffers a work injury that has the potential to be life-changing.

For those people—the people I want to help—one of the most important and easiest things to do from the very beginning is to tell the truth about what happened and be honest about all of the injuries suffered as a result of the work accident. Telling the truth about what happened is important because the employer must be notified if they are going to take responsibility through the workers’ compensation system for an injured worker. In most states and jurisdictions, there is a time limit for the injured worker to report the injury to their employer in order to qualify for all of the rights and benefits associated with a workers’ compensation claim. Do not waste time. Tell the truth about what happened when notifying your employer. Even if the injury happened because it was your fault, you are not prohibited from bringing a workers’ compensation claim. It’s a no-fault system, so be honest and report truthfully.

Telling the truth should not stop after the reporting of an injury. It should continue through to all medical providers the injured worker sees for treatment following a work injury. I always tell new clients that telling the truth in this setting really has two sides. First, and most obviously, telling the truth means not lying or making up something that isn’t true. That’s the easy part: don’t lie. The second side is a little less obvious at first, but often makes the biggest difference in the end: do not hold anything back. This means paying attention to your body and telling the doctor about all of the symptoms and complaints in every part of the body injured either as a direct result or as a consequence of the work accident. 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. For example, a person with a lower back injury may experience more pain when they have to bend, twist, stoop or when lifting. They may also experience shooting or radiating symptoms down into one or both legs when moving a certain way or performing a certain action. You may not feel this while sitting on the exam table at the moment the doctor asks, “How do you feel?” but that should not stop an injured worker from telling the doctor everything. The doctor cannot read your mind and you may not put yourself in the best position for a full recovery if you hold back when explaining to the doctor where it hurts.

Get Medical Treatment

The next simple pointer is to do what the doctor says, so you can try and get better! Another stigma or myth about a workers’ compensation claim is that it leads to a lucrative settlement or monetary award. The truth for the vast majority of people injured on the job is that the workers’ compensation system is not a solution for the rest of their lives. In fact, the longer you stay in the workers’ compensation system, the greater the chances of a poor outcome with your claim.

One way to shrink the amount of time you spend in the workers’ compensation system is to be committed to the treatment protocol outlined by your physician. That means making it to all your appointments, having honest and open dialogue with your doctor, following your doctor’s orders (i.e., physical therapy, medication, diagnostic tests like MRIs, CT-scans, etc.) and collecting the necessary paperwork and referrals from the doctor’s office to prove the insurance company a means to approve the recommended treatment. The goal here is to do as much as you can to get better and back to being yourself again. It’s not fun to be injured, so do yourself a favor and get as much treatment as you possibly can to get better!

Attempt to return to work when medically cleared to do so.

Finally, when the doctor releases you to return back to work in some capacity, make an attempt to go back to work. This is easy for injured people who make a full recovery: you get released and return to your regular, full-duty employment. For folks who are gradually released back to work with restrictions or who are facing a future of returning to the job market with permanent restrictions, the path can take some twists and turns. If you are released with some type of restriction, it is usually in your best interest to share that information with your employer and ask them whether they have work to do within those restrictions. It’s important to ask, even if you know or think you know the answer is that they don’t have work within those restrictions. In some cases, employers will offer work within the restrictions provided by the doctor, in which case I always advise my clients to give it a shot! You never know if you can actually do something unless you try, right? It may be work you can do, and in time you progress back to regular full-duty job. Or, the work might be too physically demanding, at which point your best bet is to return to the doctor to see about having the restrictions modified based on where you are in the recovery process. Generally, if your employer does not have work within your restrictions and advises you accordingly, you may still be entitled to claim workers’ compensation benefits even though you are not fully back to work.

How Injured Workers Can Find the Right Attorney

The bottom line is that the world of workers’ compensation can be difficult, confusing, and even bizarre. Hopefully this blog post shed some light on what to do to protect your rights if you are injured at work. Even if you follow these guidelines, you may still come to a point where you ask yourself, “How did I get here?” If that is the case, the best advice I can give you is to consult with an attorney who specializes in successfully handling workers’ compensation cases. I suggest to you that the measure of any attorney’s professionalism in this area is whether they are more worried about your success than you are. That is the standard I try every day to live up to for my clients, and that is the level of professionalism any potential new client should be looking for. Make no mistake—an injured worker is always better off with a knowledgeable and experienced attorney than attempting to go it alone against massive corporate insurance companies.

In closing, please allow me to offer just a little more advice about what to look for in an attorney to represent you in a workers’ compensation claim. Irrespective of number of cases they have tried, or their number of years in practice, a claimant’s workers’ compensation attorney is not worth their salt unless they do three things:

  • Educate their clients about the law and the workers’ compensation system
  • Advise their clients on how to navigate the workers’ compensation system
  • Be willing to litigate the claim against the insurance company if a dispute arises over the client’s rights to medical treatment or money benefits

I would also encourage anyone searching for a workers’ compensation attorney to place a premium on choosing a lawyer who will protect the rights of the injured worker and put their interests first.

What is a bad faith claim?

Feb 26, 2018 | jeverett

A third party bad faith claim arises when an injured person obtains a judgment against a negligent driver that exceeds the negligent driver’s liability insurance limits (i.e., an “excess verdict”).

Example #1:

  • Driver A runs a red light and crashes into Driver B.
  • Driver A has a GEICO insurance policy with $100,000 in liability coverage.
  • Driver B files a lawsuit for his injuries.
  • Driver B offers to settle his case for the policy limits, but GEICO refuses.
  • Driver B obtains a jury verdict for $150,000.
  • GEICO pays the $100,000 under the policy.
  • Driver A personally owes Driver B the excess $50,000.

Driver A has a bad faith claim against his own insurance company because GEICO failed to negotiate and settle the case within the policy limits of $100,000. GEICO did not have their customer’s best interests at heart when they gambled at trial in an attempt to save money. As a result, Driver A is personally responsible for the excess verdict and may have his wages garnished or assets seized. Driver A can assign the right to pursue the $50,000 bad faith claim back to Driver B in exchange for an agreement to not pursue his personal assets. The assignment procedure is outlined in Medical Mut. Liab. Ins. v. Evans, 330 Md. 1 (1993).

Test for Bad Faith

An excess verdict alone does not establish bad faith. The Maryland Court of Appeals has established the following 6-factor test to help determine whether an insurance company has acted in bad faith towards their insured:

  1. The severity of the plaintiff’s injuries indicates the likelihood of a verdict greatly in excess of the policy limits.
  2. Lack of proper and adequate investigation of the circumstances surrounding the accident.
  3. Lack of skillful evaluation of plaintiff’s disability.
  4. Failure of the insurer to inform the insured of a compromise offer within or near policy limits.
  5. Pressure on the insured to make a contribution to settlement within policy limits, as inducement to settle.
  6. Actions which demonstrate a greater concern for the insurer’s monetary interests than the financial risk to the insured.

State Farm v. White, 248 Md. 324 (1967); Allstate v. Campbell, 334 Md. 381 (1994).

Additionally, the insurance company has a duty to keep their insured fully informed on the progress of the claim. Schlossberg v. Epstein, 73 Md. App. 415 (1988). The insured also has the right to hire their own counsel outside of the insurance company’s lawyers due to the conflict of interest. Finally, the bad faith claim arises in tort and not contract. Kremen v. Maryland Automobile Insurance Fund, 363 Md. 663, 674 (2001).

What’s the value of the bad faith claim?

Once the bad faith claim is established, the measure of damages is the difference between the liability policy limits and the verdict. Medical Mut. Liab. Ins. v. Evans, 330 Md. 1, 25 (1993). So, going back to example #1, the value of that bad faith claim is $50,000. The insured or their assignee cannot collect additional damages for emotional distress or punitive damages unless they can demonstrate “actual malice” on the part of the insurance company. Owens-Illinois v. Zenobia, 325 Md. 420 (1992).

The bad faith claim is subject to the collateral source rule and is NOT reduced by payments from the uninsured or underinsured motorist insurance (UIM) carrier.

Example #2:

  • Driver A strikes Driver B.
  • Driver A has liability coverage of $30,000.
  • Driver B has UIM coverage of $50,000.
  • Driver B obtains a jury verdict for $75,000

The value of this bad faith claim is $45,000 (the difference between the verdict and liability coverage). The liability carrier does not get a credit for payments made under UIM. See Kremen at 675. So here, Driver B may collect a total of $95,000 ($30,000 liability, $20,000 UIM, $45,000 bad faith).

Bad Faith Survives

Bankruptcy does not extinguish a third party bad faith claim. If a negligent driver incurs an excess verdict and files for bankruptcy, his debts are discharged. The defendant may not have to pay the excess verdict, but the bad faith claim against the insurance company survives. Kremen v. Maryland Automobile Insurance Fund, 363 Md. 663 (2001).

As of the time of this article, the Maryland courts have not addressed whether the death of a negligent driver extinguishes the bad faith claim. The issue was raised in Mesmer v. Maryland Automobile Insurance Fund; however, the Court decided the case on other grounds. 353 Md. 241 (1999).

What Actually Happens

In practice, ChasenBoscolo has obtained many verdicts in excess of the negligent driver’s policy limits, and the insurance companies have always paid the excess. In fact, many insurance companies tell their negligent drivers, “Don’t worry. We’ll pay the verdict. No matter what.” State Farm ironically calls this their “good neighbor” policy.

Why does bad faith matter if the carriers pay the excess verdict?

The potential for a bad faith claim creates benefits for the injured person beyond the simple satisfaction of sticking it to the insurance company and their lawyers.

Initially, it is important to understand the motivation. The insurance companies and their adjusters evaluate each claim and set aside money from their other investments to pay the claim. This amount is called The Reserve. The adjuster then moves money from The Reserve back into the investment pool as they learn more about the value of the claim or as the injured person lowers their settlement demand during negotiations. An excess verdict exceeds the amount of policy and The Reserve. This reflects poorly on the adjuster who misevaluated the case, and their lawyer who lost at trial. Ultimately, the insurance company loses money beyond their original budget for the claim, invites additional litigation of the excess verdict, and risks bad publicity.

The injured person benefits because the potential of a bad faith claim puts pressure on the insurance company to offer their maximum policy limits or risk the additional costs of an excess verdict.

Example #3:

  • Driver A runs a red light and crashes into Driver B.
  • Driver A has a GEICO insurance policy with $100,000 in liability coverage.
  • Driver B has a back injury, goes to the hospital, gets physical therapy, receives pain management, misses six weeks of work, and has some residual back pain. His medical expenses and lost wages are $30,000.

We believe that Driver B’s case value exceeds the $100,000 policy limits and demand $100,000 to settle the case. GEICO is motivated to offer the policy limits because they do not want to incur a bad faith claim or exceed The Reserve.

The Bad Faith Letter

The bad faith letter is another tool in the arsenal to apply pressure on the insurance company and force a policy limits offer. Typically, we send a letter to the insurance company during the course of litigation that addresses a number of key issues. The letter emphasizes the strengths of our case including the defendant’s violation of community safety rules, the significant injuries caused by his or her violations, the medical expenses incurred, time lost from work, and the overall impact on the victim.

The letter clearly states that our client’s case value exceeds the insured’s policy limits. Therefore, failing to offer the policy limits and settle the case to protect their insured demonstrates bad faith. Ultimately, this letter will become evidence in the subsequent bad faith claim when evaluating the 6-factor test established by the Maryland Court of Appeals.

Oftentimes, there is an information gap between the insurance company and their insured. The insurance lawyer has told his carrier or his client that he is doing a great job and that everything is going well. The insured does not know that his personal assets and wages are at risk. Therefore, we state that our letter must be shared with the insured and enclose extra copies via certified mail.

Beyond the bad faith letter, there are other opportunities to communicate the risk of an excess verdict to the negligent driver. During depositions, we will mark the bad faith letter as an exhibit and ask the negligent driver to review the contents. At mediation, we may remind the defense attorney and his client what will happen after an excess verdict, which can include notices of wage garnishment to their employer or lien on their nice new home.

Bottom Line: Bad faith can be a weapon for the injured and allows us to obtain maximum policy limits results for our clients.

The Dignity of Work and the Rights of Workers: The Social Justice of Workers’ Compensation

Feb 19, 2018 | Krista DeSmyter

Living in the Washington, D.C., area, one of the first questions a new acquaintance will ask is, “What do you do?” When I respond that I practice workers’ compensation law, a common follow-up question in the midst of our conversation may be, “Have you ever met someone who faked an injury to get compensation benefits?” Here is where I cringe. What may seem like a harmless, conversation-starting question makes me cringe because in my years of practice, I have never met an injured worker who would do that. I have never met a worker who wanted to be in a position of uncertainty or to ask his or her employer to provide workers’ compensation benefits.

This common question I receive saddens me because it represents a societal view which is not rational but, tragically, remains prevalent and stigmatizing. My view is that protecting another’s right to work protects families and human rights. Workers’ compensation laws should be a just and effective protection of injured workers and their families. Workers’ compensation laws should be a societal good and should respect the dignity of workers. When I do receive the above question (which still makes me cringe), I embrace the opportunity to share my views of workers’ compensation coverage as a protection of human rights.

This post will identify work as a human right, recognize the historical, moral obligation of employers and insurers to care for their workers and will briefly discuss the threatening legislative erosion of workers’ compensation benefits across the United States. My hope is that the thoughts shared here can shift minds away from any false stigma associated with making a workers’ compensation claim to a view of it as a protection of the right to work—a human right.

Dignity of the Person Through Work

The right to work is a basic human right, a universal dignity that each human deserves, due to the fact that they are human. It is more than just “making a living.” Work is the daily way that we secure our present and our future as individuals. Through work, we protect and feed our families and build a future for our family units. Through work, we express who we are. Through work, we can express and live out what we value. Through work, we develop and share our talents and skills with others. Interactions in the work force allow opportunities to interact with others that we would not experience otherwise.

The people that I represent have a diverse range of physical skills, creative ideas and interpersonal talents which they express through their occupations. They have immediate needs for their growing families and dreams to build for them. Earning a fair wage for fair hours affords most the resources to engage in recreational activities that they enjoy outside of work. Considering the foregoing reality and common interests of the average worker, it would not be rational for that worker to voluntarily threaten that most basic means to provide food, shelter and security to one’s self and one’s family. One who would do so is the vast, vast exception, not the rule.

Employers Must Respect the Dignity of Workers, as Should Their Insurers

“Woe to him who treats his workers unjustly.” Jeremiah 22:13.

“Those who become rich by abusing their workers have sinned against God.” James 5:1-6.

“And O my people! Give just measure and weight, nor withhold from the people the things that are their due” (Quran 11:85).

The above scriptural quotes, while ancient and hard-hitting, apply to the present-day obligation for employers to respect the dignity of their workers. These historic texts encapsulate the compelling worth of each and every worker, a worth that should be appreciated from a secular sense as well. The right to work and the moral obligation for employers to provide decent and fair wages, to allow for organization and the joining of unions and to provide workplace safety really is a hallowed and fundamental concept. With this historical and ethical perspective, modern employment laws should be designed and applied with deference to human rights, and employers and their agents should appreciate the gravity of their responsibility.

Saint John Paul II recognized, “While work, in all its many senses, is an obligation, that is to say a duty, it is also a source of rights on the part of the worker.” (St. John Paul II, On Human Work (Laborem Exercens), no. 16). He continued,

[S]ocial benefits intended to ensure the life and health of workers and their families play a part here. The expenses involved in health care, especially in the case of accidents at work, demand that medical assistance should be easily available for workers, and that as far as possible it should be cheap or even free of charge. [Another social benefit] concerns the right to a pension and to insurance for old age and in case of accidents at work. Within the sphere of these principal rights, there develops a whole system of particular rights which, together with remuneration for work, determine the correct relationship between worker and employer. Among these rights there should never be overlooked the right to a working environment and to manufacturing processes which are not harmful to the workers’ physical health or to their moral integrity. (St. John Paul II, On Human Work (Laborem Exercens), no. 19).

I utilize the above texts from major world religions merely to demonstrate the universality and seriousness of a just employee to employer relationship. The obligations that an employer holds towards its workforce are serious and support the basic human rights of each worker by protecting their safety and providing an ability to have affordable healthcare and insurance in case of injury.

The moral obligation to treat workers with dignity and respect should not cease when a worker is upon the bridge of workers’ compensation. Employers provide or purchase workers’ compensation insurance in the event of a work injury. For employers who insure themselves, the obligations to respect the dignity of the worker outlined above do not cease during the pendency of a workers’ compensation claim. It follows that the entities tasked by employers to insure them in the case of a work injury, thereby stepping into the shoes of the employer in providing wage replacement and medical benefits, should adhere to the same fundamental respect for the dignity of the worker. Too often, insurance companies, who are far removed from the value human capital, will dehumanize the worker through failing to pay wage-replacement benefits, by denying medical care recommended by physicians, by delinquency in paying medical bills to cause a disincentive for doctors to treat injured workers and through a general tenor of disrespect and cynicism towards injured workers. This insurance industry goal of discouraging injured workers at the expense of protecting margins runs afoul of the human rights of the worker.

I urge those who are employed in the workers’ compensation insurance industry, who step into the obligations of an employer in the event of a work injury, to evaluate the grave effect of their practices and habits on the precious lives of workers and their families. Human rights should supersede market-based or business interests without fail.

Laws Limiting Workers’ Compensation Benefits Threaten Human Rights

Workers’ compensation laws were founded on a societal good: to promote safe workplaces and to ensure that, in the case of a work injury, a worker received efficient, expedient medical care and wage-replacement benefits. In exchange for this right, employers received protection from civil suits brought against them by injured workers in negligence. The foundation of these laws put human rights first in protecting a worker’s ability to heal his body and protecting a workers’ right to provide for himself and his family after sacrificing his or her body for the employer’s business.

In the past couple decades, several states have amended their workers’ compensation laws to make them more favorable to industry over the individual worker victims. These changes, fueled by business-oriented interests and lobbying, interfere with the purpose of workers’ compensation laws. The reduction and limitation of benefits for injured workers, accomplished in the name of economic interests, profoundly affects families who depend on the earnings of the household. Even at their best, workers’ compensation benefits do not compensate an injured worker for the far-reaching effects that a serious injury and resulting job loss can have: loss of earning potential, depression, inability to afford childcare and strain on spousal and familial relationships. Therefore, any abridgement on benefits is a punch in the gut to the dignity of the worker. Legislatures should value workers’ compensation benefits as a protection of human rights, not a protection of uncertain economic theories based on drawing business to one’s jurisdiction.

There should not be any stigma in protecting the fundamental human right to work. Workers’ compensation laws are based on protecting the ability of workers to endure the disruption caused by the unfortunate happening of a work injury. If you or a loved one have been injured at work, I encourage you to seek an attorney who will advocate against employers and insurance companies that do not value fundamental rights. Seek an advocate who views workers’ compensation benefits as a protection of human rights and a process in which the injured worker should be treated with dignity and respect.

The Case for Attorney-Led Voir Dire in Maryland and DC

Feb 12, 2018 | Michael D. Reiter

What is voir dire?

Voir dire, also known as “jury selection,” is a critical component of our civil justice system. In most jurisdictions throughout the country, voir dire is a process that is led by attorneys and not by judges. In fact, as recently as 2015, Massachusetts became the 40th state to allow attorney-led voir dire. Clearly the trend and the vast majority of our country allow for attorney-led voir dire. In fact, neighboring Virginia is among those states that allows for attorney-led voir dire.

However, Maryland and DC remain in the minority of jurisdictions that do not have attorney-led voir dire. At this point you may be wondering, What does that really mean? Does this really matter? Well, the simple truth is that it does matter, and it means that attorneys are being limited in their ability to actively participate in the jury selection process.

The way things typically work in Maryland and DC is that attorneys submit written questions prior to trial and the trial judge determines, in his or her own discretion, which of those questions get read to the jury. Sometimes, a few follow-up questions will be asked at the bench. Other times, potential jurors will be asked to provide their answers in front of the entire gallery. The whole process often concludes quickly, typically in less than an hour. There is little to no opportunity for attorneys to follow up with the jurors. Oftentimes, a potential juror won’t answer any questions, and the attorneys on both sides are left in the dark as to what is really on that potential juror’s mind and what their potential biases may be.

Why is attorney-led voir dire important?

So, why is this a problem? Well, people who try to stand up for their rights and go through the litigation process often have to wait at least 12-15 months or longer from the time their lawsuit is filed until the time they have their case heard in front of a jury. The right to a jury trial is guaranteed by the 7th Amendment and is a fundamental part of our civil justice system. That said, litigants deserve a fair jury of their peers. In order to get a fair jury, the individual, who has waited for their day in court in front of a jury of their peers, should have the opportunity to have some sense of who the people are who will ultimately decide their fate.

The attorney role, as it stands currently, is very limited in the jury selection process in Maryland and DC. This is problematic because it is the goal of both sides, Plaintiff and Defense, to be able to make informed decisions in their efforts to decide who to “strike” (or remove) from the jury pool. Attorneys in Maryland get four and attorneys in DC get three of what are called peremptory challenges, meaning they can exercise strikes without having to state a reason so long as those strikes are not made based on race. In Maryland and DC, attorneys are given unlimited strikes to remove a potential juror “for cause,” meaning it is clear from a juror’s answers that someone is clearly biased for one side or the other. However, with little to no opportunity for follow-up with jurors, it is very often difficult to ascertain who should really be struck for cause. To make matters worse, oftentimes there are jurors who don’t answer a single question, leaving attorneys on both sides guessing who might be a good juror and who could be problematic.

Would attorney-led voir dire make any difference? 

The short answer is yes. Attorney-led voir dire would allow for an opportunity to build a rapport with potential jurors. Attorney-led voir dire would allow for an opportunity to probe jurors’ thoughts and biases by asking follow-up questions. This is not to suggest that this process would last for weeks on end. However, it would be a more comprehensive process where attorneys and their clients would feel empowered that they have some sense of who the jurors in their community are that will be making the ultimate decision on their case. The shortcut of not allowing attorneys this opportunity for their clients is not in the clients’ best interests. It is incredibly frustrating for litigants to be patient for their day in court, only to be shortchanged by a juror whose biases they had no real opportunity to uncover.

The clear trend throughout the country is to allow for attorney-led voir dire to address some of these problems. Other states like Massachusetts tried unsuccessfully for years to obtain attorney-led voir dire. Fortunately, after years of efforts, they finally had a breakthrough. It seems like Maryland and DC are ripe to follow suit, and there would be clear benefits for attorneys on both sides of the case.

Will Maryland and DC ever allow for attorney-led voir dire? If so, when could we expect something like that to happen? The optimistic answer is yes; they will follow the trend toward attorney-led voir dire and, ideally, sooner rather than later. Unfortunately, this is unlikely to be resolved overnight. It will take a concerted and mobilized effort to show the realities and the benefits of attorney-led voir dire. However, this is not some concept pulled out of thin air, and in many jurisdictions, attorney-led voir dire exists on a daily basis.

Would there be a learning curve for many attorneys? Of course. With anything new, there always is. That said, knowing full well the potential benefits to their clients of conducting quality voir dire, it is not a stretch to think that many attorneys would work hard to hone their craft as quickly as possible. With practice and experience, the process would become seamless. There may be stylistic differences among attorneys and the leeway certain judges allow, but that would be no different than the way attorney-led voir dire is conducted throughout the entire country. At a minimum, it would be nice to see attorney-led voir dire permitted on a trial basis in the near future. This would allow skeptics to realize the value of attorney-led voir dire.

It is important that skeptics be educated on the benefits of voir dire. Allowing attorney-led voir dire is not a novel idea. It is not overly creative. It is not an aberration. Rather, it is the norm throughout the country. As mentioned above, skeptics can head over to neighboring Virginia to see how things are done and the benefits of attorney-led voir dire. With a mobilized effort and armed with data to support the benefits of attorney-led voir dire, hopefully Maryland and DC can join the trend everywhere. This is important because the biggest beneficiary will be the clients.

Beyond the Criminal Case: How Civil Lawsuits Help Sexual Assault Survivors Find Justice

Feb 05, 2018 | Elizabeth Payne-Maddalena

Trigger warning: the following discusses sexual assault and rape issues

“He stood there in a robe, and then opened it.”

“He grabbed my breasts as I walked by, every time.”

“I complained to my bosses about it. They never did anything, and it kept getting worse.”

“I tried to avoid him, find ways around seeing him. But he kept cornering me.”

“I trusted my doctor. I thought she was there to help me. Instead, she fondled me while I was under.”

“He told me if I wanted the job, I’d have to prove it. And then he whipped it out.”

“I kept saying no. Begging him to stop. He didn’t.”

Words like these have dominated the headlines recently. Victims of sexual assault are finally standing up and speaking out about the abuse they suffered at the hands of someone else – often someone they’ve trusted. It’s sparked criminal investigations, a national conversation, and even lawsuits.

As a personal injury attorney, I’ve been entrusted by sexual assault victims to handle civil suits on their behalf. Many people don’t immediately think that there’s any recourse other than a criminal case for sexual assault victims. Others don’t see why victims file personal injury or civil lawsuits. Today, I want to help explain what the civil options are for victims, and why it can be equally important in achieving justice and helping victims recover. I also want to help give victims some idea of the process, and what they should do as they take their lives back and weigh their options.

Because of this, there are 3 parts to this blog post, which I’m linking to directly here if you want to go straight to one section:

  1. Why pursue a civil lawsuit?
  2. I’ve just been the victim of a sexual assault. What do I do?
  3. How do I find the right lawyer for me?

Before I get started, I do want to state that if you have been victimized by someone you trust, I am so, so sorry that you are going through this. And I want you to know that it is not your fault. The most important thing you can do is take care of yourself right now. If this post is too hard for you to read at this time, that’s okay. Save it to read in a few weeks, when you are ready. And if you need to talk to someone now, I’ve included some links below to national hotlines for counseling after a sexual assault or rape case under section 2.

Why pursue a civil lawsuit?


I hear this question, or some variation of it, all of the time. I think it’s honestly one of the most important questions there is on this topic. After all, people think, rape and sexual assault, those are criminal cases. That’s for the police to handle. The criminal system will take care of this, right? And that is partially true. Rape and sexual assault cases are criminal cases. The only way that a Defendant goes to jail for those things is if a jury finds him guilty of those criminal charges in a criminal case. But, those cases focus mostly on the punishment of the Defendant instead of helping to make a victim whole again. After the criminal case is over, a victim is left to pick up the pieces on their own. This can require expensive treatment, counseling, and financial losses, as well as the psychological costs to a victim’s psyche. The feeling of shame and humiliation. The fear of being a victim again. The loss of their sense of self, of safety. The criminal system usually doesn’t consider these kinds of things. These things are the domain of a civil case, where a jury made up of everyday people from your community awards the victim damages to help make up for what they’ve gone through.

Additionally, criminal cases and the prosecution of them are outside of the victim’s control once they report it to the police. The prosecuting attorney and their team decides whether or not to pursue the case in a criminal court. For victims, the criminal case itself can cause a whole new round of trauma. And because the standard of proof—or the evidence required—is so high, the chances of losing are higher too. Nevermind what happens if the verdict rendered is one like the infamous Brock Turner case, where the Defendant received a sentence many consider too light to even be called a slap on the wrist.

One other issue with the criminal process is that sometimes, those who were responsible escape any kind of charges at all, because the criminal laws don’t apply to them. This baffles people. Sometimes, they have no idea what I mean by this. Let me explain:

Let’s say that an employer – a private school, for example, hires a teacher. And this teacher has some holes in his background that they don’t discover. Maybe the school doesn’t properly vet him for some reason. During the teacher’s time at the school, red flags start to appear showing that he’s a danger to the students he’s supposed to protect. Maybe other teachers notice he is far too friendly with his students. Maybe someone sees that he meets with kids alone, with the door shut. Maybe a teacher hears a complaint from a student that he said something inappropriate. And all of these things are reported up the chain, but the people in charge do nothing. They pretend to be ostriches, stick their heads in the sand, and ignore all of these red flags.

Until one day, the police come to the school and arrest the teacher. He’s molested a child – one of his students. More students come forward. Parents are enraged, especially when they learn that the school knew he was a risk and did nothing. They didn’t investigate. They didn’t reprimand the teacher. Nothing. They trusted their children in the school’s care and the school turned around and handed their little ones right to the wolf. The parents of the victims are furious. They demand justice. But the police, the prosecutors, they say there’s really no criminal charges that can be filed against the school. There’s nothing they can do.

This is when the civil system steps in and fills the void. Under the civil laws, there are a few ways the (hypothetical) private school and the people running it for a pretty profit can be held accountable for their role in these sickening attacks. After all, they were the ones who allowed this to happen. They were the ones who could’ve stopped it from the get go.

We see this in all sorts of situations. Businesses hire employees that may sometimes even seem fine, at first. Then the red flags start popping up and the people in charge decide to bury their heads in the sand and ignore those red flags, despite that they know that their employee is becoming a bigger and bigger danger to not only their other employees, but their customers. They think that in the end, they’ll get away with it. It’s easier this way. Sometimes, the culture of the company itself is toxic, and the people in charge are doing the same things. We’ve heard this story a thousand times recently: from churches, to children’s groups, to schools, to colleges, to multi-million dollar businesses, to newspapers and media companies, and in restaurants and hotels. Too often, businesses and institutions think they will get away with it because they didn’t do the foul acts themselves. But when they allow predators to continue to prey on people who are trusting them, they should and can be held accountable.

Now, I am not saying that civil lawsuits are guaranteed wins. They’re far from it. Nor am I saying the criminal process is not important. The criminal process and system is very important in these cases, but it is not the only avenue for justice to be served. Both a civil case and a criminal case play important, yet separate roles.

There are also some cases where a civil case just isn’t appropriate. Since these cases can only award money damages (again, no jail time here), it is not worth it to a victim to pursue a case against someone who won’t ever be able to pay a verdict. But, in those cases where a victim has been severely traumatized and where the Defendant—or the Defendant’s employers—have financial resources, they should be held accountable to pay all of the costs from their choices. That’s what a tort case is and what a tort case does.

If a victim thinks they may want to pursue a civil case, they should absolutely talk to an experienced attorney who has handled these matters before. But I’m getting ahead of myself. More on that in a bit.

I’ve just been the victim of a sexual assault. What do I do?


Many victims of sexual assault struggle with knowing what to do in the hours, days, weeks, and months following the attack. Their entire world is shattered. They’ve been stripped of their control of their own bodies. It is hard to function at all for some victims. My hope is that this part helps someone in this terrible moment see a path forward.

  1. Take care of yourself first.
  2. Once you’re safe, breathe. Remember, you did not deserve this. And you have control of what you, personally, do from this point.
  3. If it is the same day as the attack and you have been raped or physically injured, go to the hospital. Many victims don’t want to have to deal with anyone after an assault. They especially don’t want to be poked and prodded by doctors when they’ve just been physically violated. However, getting immediate medical treatment doesn’t just allow access to medications that will protect a victim from sexually transmitted diseases or an unwanted pregnancy; it’s incredibly important if you decide, at a later date, to pursue a criminal and/or a civil case against the Defendant.
  4. If you don’t require medical treatment, take photos. Write down what happened, who saw what. Make a record for yourself. If you are bruised, take the photos immediately. Same thing for scratches or other marks. If your clothes were torn, take photos, bag up the clothes and put them in a safe place. Write down everything that happened. Put names of any potential witnesses in there. Put all these things in a safe place. Back up anything you write down and any photos you take. Remember: phones break all the time. Computers die. Make multiple copies and put them in different places.
  5. Call the police. This one is a hard one for many victims. It is the hardest part. I am not going to sit here and judge you and make you feel guilty for not calling the police. I am not going to tell someone who decides the criminal system is not for them, that they want to let this go and move on, that they are wrong. This is a personal choice and it is your choice. But, if you think you may want justice, if you think you’ll want to pursue legal action, calling the police is a good first step. In a civil case, it helps us build the case and get the evidence we need to give you the best chance of winning. (That’s not to say there’s no hope if you didn’t call the police.) Ask for a victim advocate, if one is available. These are people who provide support to victims during the lifetime of a criminal investigation and case.
  6. Keep taking care of yourself. Again, your first priority is you. If you need to talk to someone, find a therapist that you’re comfortable with. Give yourself the time and space to process what has happened. A great resource for sexual assault victims is RAINN, a national hotline that helps victims navigate these first steps of the process. They even have an online chat feature if you’re more comfortable talking that way. If you’re thinking about suicide, please, please call the National Suicide Prevention Lifeline ASAP. Their number is 1-800-273-8255, or you can also use their online Lifeline chat. They have people standing by to help you and talk to you. Don’t let the Defendant steal your entire life from you. You deserve better.
  7. If you decide that you want to pursue a civil lawsuit, find an attorney who is experienced with these kinds of cases and whom you feel comfortable with. A quick, but important reminder here: in many jurisdictions, you only have a couple of years to pursue a civil case for sexual assault and rape cases. Sometimes, it is even less than a year, depending on the kind of case. Getting in touch with an attorney quickly is definitely important in order to protect your rights. Even if you’re not sure if you want to go through with a civil case, there’s no harm in reaching out to an attorney who practices in your state to see what your options are.

Why You Want an Experienced Lawyer Who Cares


This brings me to my last point. A recurring theme, you may have noticed, is that you want an attorney who has handled these kinds of cases before. Depending on the kind of case, the facts of your case, and where you live, different kind of attorneys may be more appropriate to handle your civil lawsuit. No matter what, you not only want someone who knows what they’re doing, but someone you are comfortable with. Someone you can talk to. Someone you feel like you could grow to trust over time.

In my experience, these kinds of cases take years to reach a final resolution. During that time, you need to know that you can get in touch with your law firm – and your attorney. Your attorney should listen to you: your pain, your fears, your frustration, your anger. All of these are valid. Your attorney should answer your questions and explain the process to you. Even if it’s a “well, this is a unique situation, let me look into it and I’ll get back to you.” (And they should get back to you!). During the life of your case, you’ll have to relive some of the worst moments of your life with them. If you can’t trust them, you’ll never feel safe in doing that. That’s why it’s important to find an attorney who cares about you – not just your case, but you, the human being.

In the end, the decision to pursue any kind of action is yours and yours only. If you’re a victim of sexual assault or rape (or the parent of a minor child who has been victimized) who lives in DC, Maryland or Virginia, and you want to talk about the possibility of pursuing a civil case, I hope you’ll give ChasenBoscolo a call. Our experienced attorneys are happy to talk about your options and your personal case during a free initial consultation that is private and confidential. You can reach us via phone at 1-800-322-3380 or by going to our website and clicking on the live chat button.

No matter what, you deserve justice, and if you so choose, you deserve to have someone in your corner fighting for you.

Is the American Dream dying for the millions of workers in this country?

Jan 29, 2018 | Matt Peffer

As the son of an aircraft mechanic, I remember my dad always telling me, “Work hard for the things you want in this life.” One day I asked him, “What do you want in life?” He told me that he wanted a roof over his family’s head, he wanted my mom to be happy and he wanted his boys to have a life better than he and his dad. I thought that sounded easy enough.

Then one morning in 1986, during my sophomore year of high school, as I was waiting for the bus, the phone rang. I heard my mom shout, “Oh no, what hospital?” She asked me to get my stuff and get in the car. You see, as my left-handed, 47-year-old dad was changing a tire on a plane, the jack broke and the wheel well came down, severing several tendons in his hand. As I went back to see him, I remember thinking, What is this going to look like? What is this going to feel like?

The fact of the matter is, I was scared, and I am still scared today. What happens when someone or something wakes you up from your dreams? That was the day that I learned what it meant to be a father and husband.

The basic premise of workers’ compensation benefits is to provide income replacement and medical care so that injured workers are not left behind while they are recuperating from their injuries. The legislatures in all 50 states have indicated how injured workers’ claims will be handled. In most states, you cannot sue your employer for economic and non-economic damages (pain and suffering), so it is rare that an injured worker can be made whole for all the losses incurred by an injury. With so many workers traveling to work in nearby states, it is increasingly important to know your rights when you get injured, because the insurance companies who are responsible for paying the benefits do.

What should I do if I get hurt on the job?

Step 1: Report what happened and all of your injuries to your employer.

When a worker gets injured, the first thing they should do is notify, preferably in writing, their supervisor or someone in human resources. They need to document not only how the injury happened, but more importantly, all the areas of the body that feel injured. Remember, you’re not a teenager anymore, so your body will respond differently to injury. It is easy to know how and when you sustained injury if it was a witnessed slip and fall or an accident by machine. But what if you work in an occupation where you do a lot of walking, or you work in a loud environment, or you sit at a desk with a headset in your ear for 30 years?

Step 2: See a doctor.

Injury is not so easily identified by you, so seeking the consultation of a physician for your symptoms can protect your dream without intention on your behalf. Many baby boomers and Generation-X workers were raised not to complain or whine about their problems. “Don’t make a big deal out of this,” is what we probably heard when faced with an issue that required us to press on for the sake of others.  Therefore, most injured workers do not go and seek medical care immediately to document their injuries until it becomes obvious to them that their problems are worse than they thought. With nothing legally sophisticated about it, the insurance company now has a defense to your claim. It goes like this: “If they were as injured as they say they are, why didn’t they go to the doctor right away?” So please, go to the doctor right away.

But Matt, maybe you haven’t been keeping up with current events. My employer is one of the millions who doesn’t provide health insurance, and I can’t afford to pay for the visit. In all states, the workers’ compensation laws are designed to provide reasonable, necessary and causally-related medical care and treatment for as long as the injury requires at the expense of the workers’ compensation insurance legally required by your employer to have on your behalf. This is part of your employment package, so take advantage of it for the protection of your future.

Step 3: Get your paystubs and keep track of missed work.

After you give notice of your injuries and seek treatment from a doctor, you need to look at your prior pay for a certain period of time leading up to the accident. This will help you to get a picture of what your income replacement will look like while you are unable to work. Remember, the bill man doesn’t care that you got injured, and your responsibility to pay your personal obligations each month still exists. These benefits are called Temporary Total Disability Benefits.

In no state are temporary total disability benefits paid at 100 percent of your earnings. They are usually paid at two-thirds of your weekly pay, tax-free. Some states allow you to be paid based upon all of the jobs you may have been working at the time of your injury; some do not. Some states allow you to include your overtime worked; some do not. Although I always had the best sports equipment come the first of each basketball and baseball season, I knew it came at the expense of third shift ending and morning overtime for my dad.

It is critical you know what rights you have as you have personal obligations to satisfy based upon your ability to work. In order to receive these benefits, you will need a doctor’s note indicating what treatment is being recommended, a doctor’s note indicating that you are not able to return to your pre-injury job, and an actual medical note that indicates that your inability to work and recommended treatment is reasonable, necessary and causally related to your work accident. Without those things, or help from a lawyer that cares, your American Dream could be in jeopardy.

Recovering From a Work Injury

Has anybody been told by their employer, “Go ahead, take as much time as you need.” I believe there are some of you who have heard this, but for a great majority of workers barely able to make ends meet, that is not the case. Also, do any workers wake up healthy and say, “I hope an injury happens so that the last 22 years of my career are meaningless.” Of course not. Most—if not all—injured people want to get as good as they can get and move forward with their dreams.

However, medical care and treatment is expensive, and as we see in the news today regarding healthcare reform, this is the most important time for you. Will you be able to have all the physical therapy you need to return to your dream, and will it begin promptly? Will you be able to undergo the MRI or other diagnostic test your doctors need to determine your conditions, and will it be done promptly? Will you be able to undergo the surgery you need to return to your dream, and will it be done promptly? Will your employment be there when you do everything within your power to keep living your dream? As you can see, how quickly this happens determines the lasting effects the injury has on your abilities to live your dreams. This is often the most critical part of your claim. What you are left with are the pieces you will need help with picking up and moving on.

When some of the pieces are missing, most states allow for the workers to receive an award for the permanent affect. This is called a Permanent Partial Disability Award. Many times, the permanent effect is loss of motion, loss of function or loss of the ability to engage in a specific activity. Although each state may place different levels of importance to each, these are the most important in my opinion. These are the essential elements for survival. Without them, you cannot be part of the pack, you cannot be part of the team and you cannot be the productive member of society like you were the day before your injury. When you experience one or more of these losses or an actual loss to a part of your body, you may be entitled to an award. A majority of the states have already predetermined what your arm is worth, or what your leg is worth. Did they ask you? Did they ask you before they reduced what your arm is worth in 1999 in the District of Columbia, for example? You need every available benefit that is left to be able to move on with your dream.

Sometimes, a permanent effect of the injury is your inability to return to the same type of work that you were physically able to do before the accident. If this occurs, you may need the assistance of vocational rehabilitation. This assistance includes basic job hunting instructions like resume building and interview skills. It may include job placement into another transferable area of employment for you. It may include retraining or schooling to compete with others in today’s labor market. Whatever the assistance, remember this is your dream that will be affected. If you return to a job that pays you less than what you were making before you sustained injury, the insurance company may be required to pay permanent wage loss benefits. Most states, like the District of Columbia, allow these benefits to be paid at two-thirds of the difference, and some states, like Maryland, calculate the effect of the permanent wage loss differently. Regardless of the structure, you need to know when and how these benefits help keep your dream alive. Sadly, sometimes, the dream dies on the job.

What about the effects on my family?

In all states, your loved ones, through the workers’ compensation insurance company, have benefits available to help pay for funeral expenses and, in some cases, income replacement for dependent family members. You need to be aware that not all dreams die at the initial workplace accident. Many times, your loved one has a consequence of the initial injury or accident that results in the dream dying. This often requires me to review the medical records and speak to colleagues and other witnesses to determine if there is a causal connection. Don’t be afraid to ask questions to the answers you may need but don’t know. Remember, your loved ones’ dream includes you.

Why I Fight for Injured Workers

In 1993, I graduated from the University of Pittsburgh. I stood there with my mom and brother and realized how lucky I was. No debt and a shiny new political science degree. Then fear set in. What did I do? I had just wasted 4 years of my dad’s hard-earned money with a degree in something I hated. You see, the degree didn’t really require a lot of hard work. It was easy. As the panic subsided, I decided to attend law school. I had no reason at the time except that I hated politics, and the only job interview I had was for selling cutlery door-to-door. So I packed up my car, kissed my girlfriend goodbye (she’s my wife now) and went to law school. I hated everything about it. There were very few people like me, I thought at the time. During my last semester, I took an elective: workers’ compensation. That will be an easy A, I said to myself. It’s just comp. At the conclusion of the 15 weeks, I was exhausted. It was the hardest class I had ever taken in my life.

At discharge from the hospital, my dad’s hand was so damaged that I thought his career was over. He was my idol. How could he curse anymore at all the young mechanics he was trying to help teach in the middle of the hangar? How would our used cars that he could always fix and keep running last? How could he support us, seeing as our private catholic school cost $1,800.00 a year? How was he going to be my dad? He missed two weeks of work, because that is how much a union mechanic got in 1986. He used the green therapy ball and grip strength device while my mom changed his bandages and he continued on.

This year, my dad turned 79 years old. He cannot do much of anything with his left hand now, he cannot walk without a walker as a result of 14-hour shifts standing and walking across miles of hangar for 30 years and he cannot hear as a result of years of making sure loud airplane engines were operating properly for the safety of the public.

So after 20 years of knowing what I know now, I asked him, “Why didn’t you make a claim for your hand?”

He told me, “Because when you’re a parent, you have to make decisions for others, not yourself.”

I told him that I would’ve protected him. We took a sip of our beers and he said, “I have no doubt you would’ve.”

What is Personal Injury Protection (PIP)?

Jan 22, 2018 | Tom Teodori

What is Personal Injury Protection (PIP)?

Personal Injury Protection (PIP) is an optional coverage under a Maryland automobile insurance policy. PIP is a no-fault benefit guaranteeing some compensation to motor vehicle accident victims. Larimore v. American Ins. Co., 69 Md. App. 631 (1987). Benefits are payable without regard to the fault or non-fault of the individual in causing or contributing to the accident. Pennsylvania Nat’l Mut. Cas. Ins. Co. v. Gartelman, 288 Md. 151 (1980). The purpose of PIP is to provide to an insured and, under certain circumstances, to person injured while occupying the insured’s vehicle, “medical, hospital, and disability benefits.” Maryland Insurance Code Section 19-505(a). PIP coverage enables accident victims to avoid delays in receiving money for medical bills and lost wages after a crash instead of having to wait months or years for the resolution of the claim against the person or company responsible for the accident.

Many people are concerned that making a PIP claim will raise their insurance cost or will result in the insurance company dropping the policy holder. However, Maryland law protects against that. An insurer is not permitted to increase the cost of the insurance or impose a surcharge after a PIP claim is made and/or paid. §19–507(c)(1) and (2).

The First Requirement – A Motor Vehicle

In order to qualify for PIP benefits, there must be involvement of a motor vehicle. Section 19-501(b)(1) defines “Motor vehicle” as a vehicle, including a trailer, that is operated or designed for operation on a public road by any power other than animal or muscular power. However, an important distinction is made in that a “motor vehicle” does not include a bus (as defined in § 11-105 of the Transportation Article) or a taxicab (as defined in § 11-165 of the Transportation Article). Thus, passengers in buses or taxicabs cannot look to the owner of the bus or taxi company for PIP benefits.  However, if the bus or taxi passenger is covered by their own PIP policy or that of another, they may look to that policy for PIP benefits.

What about Motorcycles? Motorcycles are included under the statute as a motor vehicle. Speakman v. State Farm Mut. Auto Ins. Co., 42 Md. App. 666 (1979). However, insurance companies in Maryland may choose to exclude PIP coverage to motorcycle owners. Additionally, insurance companies may exclude PIP benefits under an automobile policy to individuals using a motorcycle. DeJarnette v. Federal Kemper Ins. Co., 299 Md. 708 (1984).

Section 19-505(c)(2) permits an insurer to exclude lost wage benefits for motorcycles, mopeds and motor scooters.

The Second Requirement – A Motor Vehicle Accident

A “motor vehicle accident” is defined as an “occurrence involving a motor vehicle that results in damage to property or injury to a person.” Section 19-501(c)(1). However, if the crash is caused intentionally by the insured, benefits are not applicable.

Who is eligible for PIP?

In order to qualify for PIP, a named insured (the person or persons identified in the insurance contract declarations) must have purchased PIP coverage. Because PIP is an elective insurance option, the insured pays a higher insurance premium for PIP coverage. If you are eligible for PIP, the insurance company must provide benefits for the following individuals:

  1. The insured
  2. Family members of the insured who live with the insured
  3. Permissive users of the vehicle
  4. Guests and or passengers in the vehicle
  5. Pedestrians

What benefits are available?

The minimum medical and lost wage coverage is for a total of $2,500.00 in benefits. This means that an individual eligible for PIP benefits may receive up to a total of $2,500.00 for medical expenses incurred and wages lost. However, Maryland law allows for purchasing additional PIP coverage in the amounts of $5,000.00, $10,000.00 or $20,000.00. Although the additional limits are available at an increased cost, that cost provides excellent value in the event you are involved in a crash and file for PIP. The extra cost is not very much, so it’s a good idea to purchase PIP beyond the $2,500.00 minimum coverage.

Lost Income

Income means wages, salaries, tips, commissions, professional fees, and other earnings from work or employment. When claiming lost income, the insurance company will require reasonable medical proof of your injury and verification from your employer that you missed time from work. Therefore, its best to secure a disability slip from your treating doctor as well as documentation from your employer of the hours, days, weeks and/or months you missed and your rate of pay. Most PIP applications contain a lost wage form that must be completed by your employer, but even with that supporting documentation, it’s not unusual for an insurance company to contact your employer (someone in payroll) to confirm the lost income. The amount of proof required by the insurance company is frequently dependent upon whether you are an hourly employee, salaried employee or paid commissions and bonuses.

19-505(a)(3)(b)(1) defines income as:

    i. wages, salaries, tips, commissions, professional fees, and other earnings from work or employment;
    ii. earnings from a business or farm owned individually, jointly, or in partnership; and
    iii. to the extent earnings are paid or payable in property or services instead of in cash, the reasonable value of the property or services.

Lost income is paid at 85%, so if you miss two weeks of work totaling $1,000.00, the insurance company owes you $850.00.

Medical Benefits

The PIP insurance company need only pay reasonable and necessary medical expenses arising from a motor vehicle accident that are incurred within three (3) years after the accident. This includes hospital, medical, ambulance, dental, physical therapy, injections, funeral, nursing, surgical, chiropractic and other services. Hunt v. State Farm Mut. Auto. Ins. Co., 72 Md. App. 189 (1987).

An insurance company need only reimburse reasonable and necessary expenses incurred within three years after the motor vehicle accident. When the insurance company denies payment of medical expenses—regardless of the reason—the burden of proof is on the insured or plaintiff. Many insurance companies delay payment citing lack of medical records, lack of proper billing codes and other missing documentation. This has nothing to do with the injured person, but is a dispute between the medical provider and the PIP insurance company. Many insurance companies submit the bills to medical auditing services and then argue that the doctor’s charges are not reasonable and necessary and that the insurance company shouldn’t have to pay the bill in full.

Generally, to prove a medical bill is “reasonable” and that treatment is “necessary,” expert medical testimony is required.  Metropolitan Auto Sales Corp. v. Koneski, 252 Md. 145 (1960). This presents a problem as frequently the cost for a doctor to testify in court as to reasonableness and necessity of care may exceed the cost of the disputed bill. However, if suit is needed, you will likely be able to file suit in small claims court where the technical rules of evidence are relaxed.  Additionally, expert testimony is not necessary where the nexus between the accident and the insured’s injury is clearly apparent and the cause of the injury relates to matters of common experience. See Tully vs. Dasher, 250 Md. 424 (1968).

How do I apply for benefits?

The person injured as a result of a motor vehicle accident must notify the insurance company. Typically, this is done by telephone, and the insurance company then sends a PIP application. The PIP application consists of three forms:

  1. The PIP Application.
  2. Wage Loss Form to be completed by the employer.
  3. Medical Form to be completed by the treating doctor.

19–508(a)(2)(i) of the Maryland Insurance Code requires that you submit your PIP application to the insurance company within 12 months of the motor vehicle accident. The courts have interpreted this strictly. The application MUST be filed with the insurer no more than 12 months after the date of the motor vehicle accident. GEICO v. Harvey, 278 Md. 548 (1976). Maryland law requires the insurance company notify the insured of the last date that an application can be filed, but that doesn’t always happen. As a practical matter, there is no reason to delay filing the Maryland PIP Application Form, and the Wage Loss Form and Medical Form can be submitted separately when they have been completed.

Is it necessary to hire a lawyer to file a PIP application? Normally, no. A lawyer may not be needed if you are just making a PIP claim and are not pursuing legal action against the person causing the crash. However, if you are pursuing a claim against the responsible driver, it is to your benefit to seek legal advice for both the negligence claim and the PIP claim. As for the PIP claim, some law firms charge their clients an additional fee for filing and processing PIP claims. ChasenBoscolo does not. When choosing a law firm, be sure to ask about this additional fee.

How long does the insurance company have to pay?

By law, the insurance company has 30 days to pay “after the insurer receives satisfactory proof of claim.” §19–508(a)(1) Maryland Insurance Code. Unfortunately, what constitutes satisfactory proof of claim allows the insurance company to question medical bills, treatment records and time lost for work and otherwise results in frequent delays in the processing of PIP claims. The penalty for failure to pay on time is only 1.5% interest per month.

As a practical matter, when submitting the Wage Form, it is often beneficial to include your pay stubs from before the motor vehicle accident reflecting your weekly income and your pay stubs from after the accident showing lack of income. You should also advise the person in your employer’s payroll department who completes the form on your behalf that he/she will likely receive a call from the PIP insurer to verify the lost wages.

Exclusions From PIP Coverage

The mere fact that you were injured during a motor vehicle collision does not mean automatic entitlement to PIP coverage. §19-505(c)(1) permits insurance companies to exclude certain individuals from PIP coverage:

    i. an individual, otherwise insured under the policy, who:
    1. intentionally causes the motor vehicle accident resulting in the injury for which benefits are claimed;
    2. is a nonresident of the State and is injured as a pedestrian in a motor vehicle accident that occurs outside of the State;

[So a Virginian resident who is walking in the District of Columbia and is hit by a Maryland driver is NOT entitled to use the Maryland driver’s PIP insurance.]

    1. is injured in a motor vehicle accident while operating or voluntarily riding in a motor vehicle that the individual knows is stolen; or
    2. is injured in a motor vehicle accident while committing a felony or while violating § 21–904 of the Transportation Article; or
    ii. the named insured or a family member of the named insured who resides in the named insured’s household for an injury that occurs while the named insured or family member is occupying an uninsured motor vehicle owned by:
    1. the named insured
    2. an immediate family member of the named insured who resides in the named insured’s household.

19-505(c)(2) explains:

In the case of motorcycles, mopeds, or motor scooters, an insurer may:

    i. exclude the economic loss benefits described in this section; or
    ii. offer the economic loss benefits with deductibles, options, or specific exclusions.

PIP Waivers

PIP coverage is optional in Maryland and therefore, not everyone with Maryland automobile insurance elects to purchase PIP. Most of the time, the decision not to purchase PIP is based upon money. You do save yourself a little money from your premium by waiving the PIP coverage; however, in the event of a collision, it will have been a penny-wise, pound foolish decision. ChasenBoscolo recommends purchasing PIP coverage.

In the event you do waive PIP, it must be a on a form approved by the Maryland Insurance Commissioner’s office, and it must be an affirmative waiver. That means that you must actually sign a document stating that you waive coverage. §19–506. If coverage is not specifically waived, the insurer shall provide coverage. Clay v. GEICO, 356 Md. 257 (1999).

If the policy holder waives PIP coverage, he/she cannot collect PIP from any other insurer. Maryland Auto. Ins. Fund v. Perry, 356 Md. 668 (1999). That means if you waive PIP on your own policy (and are not first named insured under another policy) and you are the passenger in your best friend’s car when it’s involved in a collision, you are not permitted to use your best friend’s PIP coverage. Additionally, the PIP waiver is binding on all listed drivers and family of the insured 16 years of age and older residing in the policy holder’s household.

Stacking of Benefits

The primary PIP policy is the insurance coverage on the vehicle in which a person is injured as a driver or passenger or as a pedestrian. Consider these examples for further explanation:

  1. John has a $5,000.00 PIP policy with his insurance company. However, John owns 2 other cars—also insured by the same insurance company—with $5,000.00 PIP policies. John is involved in a bad crash and sustains $15,000.00 worth of medical bills and lost wages. Can John stack his 3 PIP policies for a total of $15,000.00 worth of benefits?   Under Maryland law, no. John is not able to stack (or add) the policies in that circumstance.
  2. John is a passenger in his girlfriend’s car. His girlfriend has $2,500.00 in PIP coverage. A bad crash results in $15,000.00 in medical bills and lost wages for John. In this instance, John first uses his girlfriend’s PIP policy and exhausts the $2,500 with her insurance company. John can then look to his own insurance company for an additional $2,500.00 in PIP payments, bringing the total for PIP to $5,000.00.
  3. John is a passenger in his girlfriend’s car. This time, she has $10,000.00 in PIP coverage. Even though John only has a $5,000.00 PIP policy for his own car, he is able to use the $10,000.00 limits of his girlfriend’s policy. John cannot stack his policy with hers for a total of $15,000.00 in PIP benefits.
  4. John’s girlfriend is driving her own car, but she failed to timely pay her insurance premium. As a result, her insurance policy lapsed. Therefore, her vehicle was uninsured. John was a passenger in the vehicle and still had $5,000.00 PIP coverage on his personal car. His girlfriend crashed the car and John sustained $15,000.00 in medical bills.   Although her vehicle doesn’t have insurance, John is able to use his PIP policy for $5,000.00 worth of benefits.
  5. John has the insurance coverage noted above ($5,000.00 PIP). This time he is married. However, his wife is an excluded driver because she has been convicted of multiple DUIs. Excluded means that John’s motor vehicle insurance policy specifically excludes his wife from operating his cars. Nonetheless, John’s wife needs to run an errand and is involved in a crash while driving to the store. Under Maryland law, she is not entitled to PIP, as she is an excluded driver of John’s car. However, if she was a passenger in John’s car when it crashed, she would be entitled to PIP benefits.
  6. John has the insurance coverage noted above. John is walking across a street in Maryland when a passing car strikes him. Which PIP applies? The PIP coverage on the car that struck John is primary and if it only had $2,500.00 in coverage, John could look to his own personal PIP policy for up to $5,000.00 in benefits.
  7. John has the insurance coverage noted above. John is a passenger in a taxi. The taxi crashes. Under Maryland law, the taxicab is not required to have PIP insurance and therefore, John will use his personal PIP policy.
  8. John has the insurance coverage noted above. John is the passenger in an Uber or Lyft vehicle. The vehicle crashes. John will use the PIP policy of the Uber or Lyft vehicle since Maryland law treats Uber and Lyft vehicles much differently than taxis. Thus, John would use the first $2,500.00 from the Uber or Lyft vehicle and then look to his own personal policy for additional benefits.

Health Insurance and Workers’ Compensation Benefits and PIP

If a driver or passenger is working at the time of the injury, he may be entitled to PIP and workers’ compensation benefits. However, it is very important to coordinate the timing of filing for both benefits. Since Maryland law permits the PIP insurer to reduce benefits payable to the extent workers’ compensation benefits are actually received, if someone injured in a car crash files for workers’ compensation benefits and those benefits are paid in excess of the PIP coverage, that person would not then be able to seek PIP benefits. As noted where an injured worker receives workers’ compensation benefits in excess of the PIP coverage, he/she is entitled to nothing from the PIP carrier. §19-513(e) and Smelser v. Criterion Ins. Co., 293 Md. 384 (1982).

As a practical matter, the opposite is not true. The PIP carrier is generally not entitled to a credit or to be reimbursed by the workers’ compensation insurance company as long as the PIP is exhausted first. An exception to this rule is if the employer is self-insured. When someone is working and is entitled to file both a workers’ compensation claim and a PIP claim, it’s beneficial to file and exhaust the PIP claim first and timely file the worker’s compensation claim thereafter.

Since PIP pays lost income at 85% whereas workers’ compensation only pays at 66%, there is an advantage to filing and exhausting PIP first. Additionally, when you are out of work and receiving medical care after a motor vehicle collision, you and your doctor will want to be paid. Many medical providers will have you sign forms allowing your doctor to submit forms directly to the PIP carrier. In such circumstances, it’s not unusual for the doctor to be paid and or to exhaust the PIP coverage leaving you no money for your lost income. Therefore, it is critically important to be aware of the timing of your PIP claim and presentation of the supporting documentation to ensure you are timely paid your lost income.

If you have health insurance and available PIP coverage, you will likely make use of both coverages after a collision. Once again, you should use your PIP first for lost income and then your medical bills if not exhausted. Health insurance companies do not get a credit for PIP benefits paid to you or to your medical providers. Some medical providers prefer to be paid by PIP insurance rather than health insurance since PIP frequently pays a higher percentage of the bill.

If you have any questions about PIP or MedPay benefits in your car crash claim, please feel free to give us a call. You may call us toll-free at (800) 322-3380.

Concussions and Brain Injuries in Car Wrecks, Falls and Sports Injuries

Jan 15, 2018 | Ben Boscolo

Why do I need a trial lawyer if I have suffered a concussion, head injury or traumatic brain injury in a car wreck, fall or sports injury?

The brain is the world’s greatest computer and the least understood part of our anatomy. Our brain has three parts: the rational, the emotional, and, buried deep beneath those, the instinctive. Injuries to the brain, from catastrophic to minor, change the way we think, feel and act. Many of these changes go unnoticed by the person who suffers the brain injury. In fact, many people who suffer brain injuries may not even consider an injury to the brain as a reason for changes in the way they feel or act. This is because we believe that if we do not get hit in the head or lose consciousness, we cannot have hurt our brains. Brain injuries, such as concussions, in car wrecks and falls are underreported, underdiagnosed and undertreated. Many times, medical professionals tell us that the changes in the way we are feeling or acting are the result of emotional or psychological problems as opposed to an injury to our brains.

Since concussions and brain injuries are so difficult to understand, it is extremely important to hire a trial lawyer who understands the brain and concussions and who has experience representing people who have suffered traumatic brain injuries. Car wrecks, falls and sports injuries are three very common causes of head injuries.

The Brain, Skull and Their Functions

Understanding the reason why you need a trial lawyer to handle a personal injury case involving a head injury begins with a basic understanding of the brain and the skull. The brain is a very fatty organ. Seventy-five percent (75%) of the brain is made of water. It is the consistency of Jello. The brain floats in cerebrospinal fluid. The fluid is contained by a membrane and sits within the skull. Quite simply, the skull is the armor for the brain.

Your lawyer must also understand what the different parts of the brain do. The front part of the brain, comprised of the frontal and temporal lobes, generally controls thinking, voluntary movement, hearing and feeling. The right side of the brain controls the left side of the body, and the left side of the brain controls the right side of the body. The back of the brain, or the cerebellum, controls coordination and balance.

As the image below shows, the brain is divided into four parts, or lobes: the frontal, the temporal, the parietal and the occipital.


Since the causes and frequency of concussions are misunderstood by most people, your lawyer must understand concussions and the wide range of symptoms they produce. The average person believes that a concussion happens when someone is hit in the head or loses consciousness. This is not correct. According to Merriam-Webster’s Online Dictionary, a concussion is “a jarring injury of the brain resulting in disturbance of brain function sometimes marked by permanent damage.” In order to suffer a concussion, one does not need to be struck in the head or lose consciousness. A concussion is simply an injury to your brain.

What are the symptoms of a traumatic brain injury?

Like all other injuries, brain injuries can be mild, moderate or severe. Generally speaking, a moderate brain injury occurs from a loss of consciousness from 20 minutes to 6 hours, and a severe brain injury occurs from a loss of consciousness for more than 6 hours. The focus of this blog is mild traumatic brain injury, which occurs when there is a brain injury with either no loss of consciousness or a loss of consciousness for less than 20 minutes. One of the principal ways to identify a mild traumatic brain injury is based on the symptoms that follow car wrecks, falls or sports injuries. The symptoms of a mild traumatic brain injury include fatigue, headaches, visual disturbances, memory loss, poor attention or concentration, sleep disturbances, dizziness or loss of balance, irritability, emotional disturbances, feelings of depression, seizures, nausea, loss of smell, sensitivity to light and sounds, mood changes, getting lost or confused and/or slowness in thinking.

How do brain injuries happen?

The most common way to suffer a traumatic brain injury is from a direct blow to the head. Head injuries frequently occur in car wrecks when a person’s head hits the windshield or the side of the car. Head injuries also frequently occur when someone trips and falls and hits the back of their head. Head injuries are especially common in sports with head-to-head contact between players.

In each of these types of injuries, the brain strikes the inside of the skull. The head and the brain are moving together, either forward or backward. When the car crash victim’s head hits the windshield, it stops. Unfortunately, their brain, which is floating in fluid, keeps moving. The only thing that stops the brain from moving is the skull. Similarly, when the fall victim or athlete falls and hits the back of their head, the brain slams into the inside of the back of the skull. The same thing happens when someone hits the right or left side of their head. The only thing that stops the brain from moving to the right or the left is when it hits the inside of the skull. Brain damage can occur when the brain slams into the side of the skull. The damage can range from a bruise to bleeding. In addition, axons that are long threadlike nerve tissues that transmit impulses from one cell to another cell can be sheared or torn during the injury. Significant bleeding or axonal shearing can be seen on MRI.

The more difficult to recognize traumatic brain injuries occur when there is not direct injury to the head or loss of consciousness. In any car wreck, fall or sports injury where there is a whiplash type injury, a concussion or traumatic brain injury frequently occurs. The mechanism of injury is exactly the same. The head is snapped forward and the brain moves with it. When nature stops our head from moving forward, the brain keeps moving until it slams into the inside of the skull. Then as the head is snapped in the opposite direction, the brain begins to travel in the opposite direction. When nature stops our head from moving in the opposite direction, the brain keeps moving until it slams into the inside of the skull. Each time the brain smashes into the skull, it is damaged. In cases like this, the bruising or tearing of the axons, or nerve tissues, cannot be seen on an MRI. The resulting brain injury is just as real and can be permanent.

What are some challenges for sufferers of a mild traumatic brain injury?

The brain controls all physical and emotional activity. As a result, the symptoms of a traumatic brain injury overlap the symptoms of other injuries or conditions. When someone is in a car wreck, fall or sports injury, neck problems are a frequent result. Neck injuries frequently cause head pain and headaches. More importantly, severe pain in the neck interferes with concentration and sleep and can cause irritability or depression. These overlapping symptoms frequently prevent the injured person from recognizing that they have suffered a concussion. The overlapping symptoms frequently mask the traumatic brain injury so that medical professionals may not focus on it. Doctors tend to focus on the physical injury first, believing that when the physical injury heals, the symptoms will go away. This leads to a delay in the diagnosis and treatment of a traumatic brain injury.

When someone suffers from a history of anxiety, depression or any other emotional issues, the symptoms of those diseases can include fatigue, headaches, poor attention or concentration, sleep disturbances, irritability and emotional disturbances, feelings of depression, mood changes, confusion and slowness in thinking. When a person with a history of emotional or psychological issues is hurt in a car wreck, fall or sports injury and experiences these symptoms, they understandably believe that this is related to their pre-existing emotional or psychological problems. Medical professionals may also frequently confuse the symptoms of traumatic brain injury with a recurrence of the injured person’s emotional or psychological condition.

Two major problems are caused by the fact that the problems an injured person experiences as a result of a concussion or mild traumatic brain injury mimic the problems caused by neck injuries or emotional problems. First, the confusion about the cause of the problems often results in a delay in diagnosis. The delay in diagnosis causes a delay in treatment. The delay in treatment makes it less likely that the traumatic brain injury will get better. Second, and more significantly, the delay in treatment makes it far less likely that the treating doctor will quickly relate the symptoms to the car wreck, fall or sports injury.

Do you need a trial lawyer if you were hurt in car wreck, fall or sports injury?

Anyone who suffers a traumatic brain injury in a car wreck, fall or sports injury should consider contacting an experienced trial lawyer. The attorney you choose must have experience in handling cases like these. Experience will teach your lawyer:

  1. How to recognize the symptoms of concussion or traumatic brain injury.
  2. How to help you get the medical care and treatment you need in order to recover.

More importantly, you should make sure the lawyer you hire has courtroom experience in representing people with concussions or traumatic brain injury for the following reasons:

  • First, your lawyer should be able to explain, in plain English, what a concussion is. Your lawyer should be able to explain to both you and a judge or jury how your brain injury resulted from the car wreck, fall or sports injury.
  • Second, your lawyer’s experience will provide them with essential knowledge of how insurance companies and their lawyers will defend your case. Insurance companies and their lawyers have a game plan for defending cases in which a person has a concussion or traumatic brain injury as a result of a car wreck, fall or sports injury.
  • Third, most mild traumatic brain injuries cannot be shown with any kind of test. As a result, doctors are forced to rely on their patients’ complaints in order to diagnose a traumatic brain injury. Insurance companies and their lawyers know that most people in American society view those who make claims for personal injuries as a result of a car wreck, fall or sports injury skeptically. This skepticism predisposes judges or juries who are asked to decide whether someone has a traumatic brain injury to think that the injured person is faking the symptoms in order to get money. Further, the skepticism predisposes judges or juries who believe that a person has a brain injury to think that the problem is not the result of the car wreck, fall or sports injury.
  • Fourth, insurance companies and their lawyers also know that the people in our communities believe that it’s bad to award money to people who are hurt in a car wreck, fall or sports injury. The average person believes that awarding money for personal injuries, including concussions or traumatic brain injuries, caused by a car crash will cause our insurance payments to go up. The average person believes that awarding money for personal injuries, including concussions or traumatic brain injuries, caused by slipping and falling will drive businesses out of our state.
  • Fifth, insurance companies and their lawyers know that it is hard for a person with a traumatic brain injury to fight them in Court. Insurance companies and their lawyers use the tactic of deny, defend, delay to discourage injured people to stand up for their rights. Insurance companies and their lawyers know it is expensive for a person with a traumatic brain injury to fight them in court.
  • Finally, insurance companies and their lawyers know that people will not award money to people with traumatic brain injury if they think the person is a liar, faker or fraud. So, insurance companies and their lawyers use the medical records of the person with a traumatic brain injury to make it look like the person is lying. Insurance companies and their lawyers dig into the past of a person with a traumatic brain injury to try to show they are lying. Insurance companies and their lawyer will even hire private investigators to spy on a person with a traumatic brain injury to try to show they are lying. Insurance companies and their lawyers know that if they make a person with a traumatic brain injury seem like they are lying, they will not get compensated–and the insurance company gets to increase their profits.

An experienced trial lawyer will know how to fight insurance companies and their lawyers by knowing how to prove traumatic brain injuries are real with witnesses, documents, pictures and video. Experienced trial lawyers know how to overcome the false belief that awarding money to someone who suffers a traumatic brain injury from a car wreck, fall or sports injury is bad. Your trial lawyer should actually be able to show that making the person who caused the traumatic brain injury pay for what they caused is good for our community. An experienced trial lawyer will have the courage to fight the insurance company in court and the compassion to help the person with the traumatic brain injury deal with the deny, defend, delay strategy. Finally, an experienced trial lawyer will know how use the tactic of trying to turn the person with a traumatic brain injury into a liar against the insurance company.

Concussions and traumatic brain injuries are serious, life-changing injuries. They are hard to understand and treat. It is very hard to prove that a person has a traumatic brain injury, but it’s not impossible. Insurance companies and their lawyers know how to get their clients off the hook when a traumatic brain injury is caused by a car wreck, fall or sports injury. That’s why it is important for anyone suffering from a concussion or traumatic brain injury from a car crash, fall, or sports injury to talk with an experienced trial lawyer.

What is an underdog?

Jan 09, 2018 | Barry Chasen

To me, the underdog is characterized by a lifelong fight. Things seem bleak, but the underdog fights to overcome. He fights and he struggles. He keeps his head down and works. Every once in a while, pop culture reminds us of how great the underdog story is: a JFK is elected or an Obama inspires us all. The Orioles beat the Yankees. But then, almost always on cue, the underdog is forced to endure more struggle. The underdog sees his fight stopped and his dream deterred.

However, what makes the underdog special is how he responds to struggle. The underdog responds to insurmountable odds by gritting his teeth and pushing forward. The underdog does not stop trying. I am intimately familiar with the underdog’s story, and it’s why I do what I do. Why? Because I am one.

I started ChasenBoscolo on March 5, 1986, to be a law firm for the underdog, by the underdog. Back then, it was just Law Offices of Barry M. Chasen, and it was just my secretary and me. My oldest son had just been born. He was two months old when I started the firm. My friends told me the timing seemed a little off, but when you’re driven by a passion and you’ve got the underdog’s fight, timing doesn’t matter.

Five years before going out on my own, when I got my first job as a lawyer, it was the first time that I had ever set foot in a law firm. I was 33 years old. I was the 19th lawyer in a firm that represented injured workers in workers’ compensation claims and plaintiffs in personal injury cases in Maryland, DC and Virginia. However, over the five years that I worked for another firm, I learned a sad truth: lawyers in the industry made decisions and gave counsel to their clients that were in the firm’s best interest rather than the client’s. The goal was to increase the fee that the firm made. That felt wrong to me. Frankly, that is wrong.

So I left and started my own firm, the firm that today is called ChasenBoscolo. I did it, no matter how odd the timing, because I was sure that I could represent my clients and do a better job than the old firm. Of the cases that I wanted to take with me, 91% of the clients elected to stay with me. They wanted me to fight for them. I was committed to working in their best interest. I was committed to a philosophy then that still guides our firm today: if you take care of the clients, the money will take care of itself.

But all of this started long before I started fighting independently for my clients. Much earlier than my career as a lawyer, I had to fight for myself. Because we don’t have all day, and because in the interest of your time, I’ve edited my first draft of this post down from nearly 5,000 words. I’ll simply share three short segments of my own “underdogging” so that you can see why the fight we take on at ChasenBoscolo really hits home for me.


I’m ten years old. I’m poor—well, my family is poor. My father, a taxi driver with an eighth-grade education, is working through the night. Last week he was robbed at gunpoint, so we don’t have any money. This week, we’ll be lucky if he brings home a hundred dollars. Me and a classmate both rip our jeans sliding into base at recess. He returns to school the next day with a new pair. I return with a patch on my ass. I realize I’m poor when my friends go to summer camp, to swimming pools and to amusement parks. I don’t do any of that. I’m lucky if my father drives us to the ocean for a day trip in his cab. Despite our poverty, my parents constantly reinforce that even though we have no money, I will get a college education. They ensure me that we will figure it out. At ten, that doesn’t mean much to me, but I feel supported.

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As I get older, it means the world. I’m confident in myself because of their support. Then my father dies from a fatal heart attack on the street. He’s 51 years old. Things get worse. My mother cannot not maintain the mortgage payments on our house. It’s sold at auction and then rented back to us. Our phone service is shut off; our lights don’t turn on. I don’t know where our next meal is coming from.

I’m an underdog though. I’m a fighter. I don’t give up. Although I want to go to college, I work instead. I’m hired by the Social Security Administration as a GS-2 file clerk making $3,680 a year. I get promoted multiple times over a few years. I end up being promoted to the level of a computer programmer. I even start taking college courses at night and finish enough credits to be about a quarter of the way done. The light inside me will not flicker out.


I’m drafted into the army. The 1960s are a time of unrest. College students, African-Americans and others protest against the actions of our government. We are engaged in an unpopular war and the rights of African-Americans are being infringed from equal accommodations to voting rights to economic equality. The anti-war protests become increasingly violent with flag burnings, bombings, rock throwing. Groups like the Weather Underground, Students for a Democratic Society, The Black Panthers, The Symbionese Liberation Army and The Youth International Party are all active in the ‘60s. In the Civil Rights Movement, there is a mix of violent and non-violent protests. They are fighting for justice, equality and opposing a war that is remote to the interests of the United States and is taking place half a world away.

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I am anti-war. I don’t consider moving to Canada, but I don’t understand what we’re doing in Vietnam. I keep my head down and I push myself during our basic training. I have no other choice but to fight, to do my best. I’m offered an opportunity to train to become an officer, and I take it. I understand that I may be safer as an officer than as an artillery man. Things are looking up. But of course, as always, the underdog is faced with challenges no matter how good things seem to get.

I train to be an officer, and this is how it goes: after a hard day of training, our commanders show up at our barracks and tell us to put on our full-pack uniforms. They then take us for a long run which culminates with us crawling through a muddy stream. We’re exhausted and filthy when we get back to our barracks after 11:00 p.m. The training commanders then tell us that we have an inspection at 5:00 a.m. After we’re dismissed and go inside, we discover that our bunks have been trashed and our bookcases overturned. Our foot lockers and lockers have been turned upside down. We have six hours to get everything in order, and then we’ll do it all again the next day. That seems bad to me until I get to Vietnam.

I land in Vietnam and spend a few months doing basic intelligence reporting, but then everything changes. I’m walking back to my office with my commanding officer after a meeting and suddenly a succession of rocket blasts come closer and closer. The blasts do not stop. We start to run. My ears are ringing now but it’s my heartbeat that I hear. Me and my commanding officer slide into a bunker, a hollowed-out mound of wet sand bags. We look at each other but neither of us say a thing. Our faces say enough: fear. I hear my heart beat. I hear the blasts, still louder. And then finally, just before I’m sure the next one will land on our bunker, they stop. I sit there for a long time and consider how lucky I am. Then I think about how unlucky I am. Then again—lucky.

Sometimes, for some people, the blasts don’t stop before the bunker. For me they do, and I get to come home after another year. Within 30 minutes of landing at Travis Air Force Base in the Bay area, I am called a “baby killer” by protesters outside the gates. I cannot wear my uniform off base without being subjected to a constant barrage of verbal abuse. Whenever I appear in public in uniform, I am always insulted and attacked.


It’s 2018 and I’ve survived Vietnam. I’ve finished night school at the University of Maryland University College. I’ve finished law school at night too: the University of Baltimore. I’m a lawyer. I’ve found my calling, and I’ve made a career out of it. I’ve realized that my old employers had the wrong attitude. They didn’t know what it meant to be an underdog. When I leave that firm, I take almost all of my clients with me. Since then, I’ve helped thousands of other clients. I’ve won countless cases. I’m proud of myself. I’ve grown my firm.

I’ve married the love of my life, and I have three wonderful sons who are grown themselves. They didn’t have to go to night school. I’ve provided for them in a way that they’re not the same underdog I was. But they still are underdogs in some sense. We all are in different ways.

It’s 2018, and the firm is still growing. We’re successful; we have commercials. We’re hiring lawyers and winning cases. We’re delivering justice to underdogs. I’m checking every box by the measure of conventional success. But things are not easy. We haven’t cracked a code where winning cases is easy. Let me explain why: being an underdog means that you’re fighting a beast that’s bigger than you.

It’s 2018, and judges have been “tort reformed.” They default to side on the behalf of the insurance companies—the behemoth conglomerates making more than a billion dollars a year. Case decision makers—commissioners—suffer from “compassion fatigue.” The law is not applied fairly and impartially and the law is rarely construed in favor of the injured worker. Some of this is the result of politics. Some of it has occurred because of tort reform propaganda and lies.

It’s 2018, and the deck is still stacked against the underdog. On one side, you have the little guy represented by a firm not much larger than a football team. On the other side, you have big corporations or insurance companies with virtually unlimited resources. They will always present the best evidence that money can buy. These companies on the other side make more than $250 million per quarter. In three months, they make more money to use at their disposal than we can ever dream of.

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It’s 2018, and I continue to fight. I continue to fight because it’s what I know how to do. I know how to push on, hungry and in the dark: my father has died. I know how to push on, heartbeat in my throat: the blasts get closer and closer and my commanding officer and I believe that we’re already dead. And I know how to push on when I walk into the courtroom and I see both representatives of a massive insurance company who have lobbied politicians in D.C. to pass legislation that helps them win cases. I see my client who, just like me, is an underdog.

Just like me—just like all of us—my clients are pushing forward to make a better life for themselves and their families. Then they are injured in an act of negligence. When that happens, they deserve representation. They deserve someone who will show up ready to fight, someone who won’t back down from a company with deep pockets who threatens to stand in the way of justice—someone who’s seen stuff a lot tougher than the representation and evidence that money can buy.