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Archive for Workers Compensation

A Claim for Insomnia

Tuesday, May 7th, 2013

     From 2004 through 2007, attorney Victoria Anderson worked for Discovery Communications. She was commended for her strong technical, legal and drafting skills. Her annual reviews did note that she needed to improve her organizational and interpersonal skills. She needed to do better in getting along with others.

     Acccording to an article in ”Virginia Lawyers Weekly” (Deborah Elkins), in October of 2006, Anderson took a leave of absence from her employer under the Family and Medical Leave Act. She was having difficulty sleeping. 

     Testing ruled out sleep apnea. Her physicians determined that she was suffering from fatique, sleep deprivation and insomnia and prescribed her Ambien, to help her sleep. Anderson then returned to her job in November. She came with a doctor’s note that advised that her daily work schedule had to be limited to eight hours.  After two follow-up doctor appointments, in December she was then released without any work restrictions.

     When Anderson returned to work, she advised her employers that she could only work between the hours of 11:00 a.m. to 4:00 p.m. Her employers advised that they needed her to work a full 40-hour work week because their core business was during the hours of 9:00 a.m. to 6:00 p.m.

     In December of 2007, Her employer fired Anderson, claiming that she had entered inaccurate time entries for her work; refused to accept a performance plan, and had a ”combative, difficult, and manipulative” nature.

     Anderson sued her employer. The case was styled Anderson v. Discovery Communications LLC.  Her lawsuit was based on her claimed rights under the Americans with Disabilities Act.  

     The Federal Court judge granted summary judgment for the employer. She appealed to the 4th Circuit. The 4th Circuit upheld the lower court’s dismissal; and the appellate panel, in an unpublished opinion, ruled that “sleep patterns vary between individuals and even during a person’s lifetime. On this record, Anderson simply failed to present evidence creating a genuine issue of material fact as to whether she was ‘substantially impaired’ in December 2006, as a result of her insomnia”.

    Separately, Anderson had also brought an action for retaliation and an interference claim. That also was dismissed because she remained employed and was given full benefits until her termination. According to the Court, the employer had a legitimate reason to terminate her; based on her untrustworthiness in completing time sheets and poor communication skills.

     In simple terms the Court was saying… The End.

     And this pic o’ day just seemed topical!

a nap

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Max Lucado’s Devotional

Tuesday, March 5th, 2013

      Because our practice is injury law, it means that no one is calling unless something has happened. Max Lucado (MaxLucado.com) emails a daily devotional. Below is a portion of the one that was sent today that made me stop and think. A reminder of hope: even when times are tough. 

My friend Joy teaches children in an inner city church. Her class is a lively group of nine-year-olds. There’s one exception—a timid girl named Barbara. Her difficult home life had left her afraid and insecure. She never spoke.  Never.  Always present.  Always listening.  Always speechless. Until the day Joy talked about heaven—about seeing God. About tearless eyes and deathless lives. Barbara raised her hand.  “Mrs. Joy? Is heaven for girls like me?”

      pic o’ :

cheeseburger

 

 

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Read it again, Grammy!

Sunday, January 27th, 2013

One of my favorite childhood memories takes me back to my love of a great story. My grandmother used to get her morning coffee and butter raisin toast. Then, she would sit down in her big red chair and I would sit on the right arm of the chair.

She would reach to her left and pick up a story book from the stack of books that were collected next to the chair. Then, she would open the book and begin to read as I would peer over her arm and look at the pictures and words that I could not yet comprehend.

She had read these same books to me over and over so many times, that I could repeat the words verbatim. Still, with exciting voice inflexion and change of voices to match each character in the books; she read them as though it was the first time, and I listened so attentively as though I had never heard this story.

The stories all had some lesson that included some hero. And, of course, there was always a good ending to the story. Then, I would say, “Read it again Grammy, read it again”. She would commence at the beginning again until we would move on to the next book. The only break usually included her getting a refill on her coffee.

Many times before bed, we would be right back to those same stories. Even if we had to take a break for real life things. As I type this blog, it takes me back to such a good feeling of just sitting there, never wanting the Grammy to stop reading.

In Saturday’s HamptonRoads.com, there was a story titled “Job seeker tries to plant seeds at Va. Beach expo”. The story included a picture of a young man standing in front of the display. He is bit out of place at the Virginia Beach Convention Center, where the Virginia Flower & Garden Show is set up.

The many displays on the floor include potted greenery and garden tools. At this one display, a 27-year-old man stands with a table behind him, and a large white sign that says “John Wike/Bachelor Degree-Business Management”. Instead of selling rakes, he is pitching himself for employment; hoping that during the three days of this convention that someone will have a job opportunity for him.

In real life, the end of the story is not always perfectly scripted. Many clients that call me also weave a story of lost wages and lost opportunity. Sometimes on their path of life, they are unable to pursue a career or take a desired job that has been offered. Other times, they miss so much work that their employer either terminates them or they lose some career advancement opportunity.

Part of the damages of an injury claim can include making a claim for lost wages. That claim exists even if a person did have sick time that they could take as a benefit of their employment. The person that hit them does not benefit from the collateral benefit of a sick leave payment.

Virginia also recognizes a claim for loss of earning capacity. Following an accident, a client may be earning more than they were earning before the car crash. However, they may have lost a job or career opportunity that could have provided a better income for their future. For that, the person that caused the crash should also be responsible.

Every day, I hear “stories” about difficulty. Fortunately, I have also seen many good endings, despite the road of difficulty in getting there.

After I read the “Wike story” about how he was seeking a job; I also continued to read the comments that followed. One person commented that they really enjoyed reading the story. Then, they wrote, “please do a followup story on him…. I bet he gets a job soon”. Just like me, they like a happy ending.

In my head, I can still hear my high voice saying to my Grandmother, “Grammy, read it again” and my grandmother turning the book to the beginning and off we go again to a happy ending.

Just for conversation, I still have people ask me about “my holidays”. So, I am posting this pic o’ day that makes me laugh:

 

 

 

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Money Stumbles

Sunday, January 13th, 2013

 

I just had breakfast with someone who was bemoaning the fact that he has no 401K. One of his new year resolutions is to get started on retirement.

I just met with a financial planner; He admitted that he was frustrated with himself. A lot of the recommendations that he gave to clients was advice that he couldn’t always follow, because of life circumstances. Finances make it harder for him to put as much money aside as he thinks that he should.

Both of these men were saying what most all of us are saying. We know the road to take but it’s not always easy to get there. In my area of law, there usually is an event that has derailed any attempt at setting something aside right now. That adds to the frustration of a client who is trying to get medical treatment; trying to get better; trying not to miss too much work and still trying to make ends meet.

In a time of crisis, it’s almost a guarantee to look back at the past and say, “I wish I would have (insert a multitude of thoughts). ConsumerReports.org has some good reminders on finances that I thought were good blog fodder. They are called “Seven money stumbles to avoid”. In good times, it’s hard to follow these; In hard times, it’s even hard to read them. Still, it’s a good list to work on to keep from making some of these financial stumbles:

  • Not updating wills and beneficiaries. Eighty-six percent hadn’t updated their wills or other estate-planning documents within the previous five years.
  • Not sharing information with family. In only 30 percent of households did both spouses know major details about the family’s finances and where to find account information.
  • Messing up on 401(k)s. About two-fifths of respondents set aside 6 percent or less of pretax income in defined-contribution retirement accounts, most likely missing out on free employer matches. Ninety-one percent never reviewed fund expenses within their plans, though those expenses play a major role in investors’ returns.
  • Underinsuring. A mere 36 percent of homeowners had purchased extended coverage on their homeowners insurance that covered the full replacement value of personal property. Only 20 percent of survey respondents had umbrella coverage to protect them from liability lawsuits.
  • Not planning for emergencies. More than 70 percent said they didn’t have an emergency fund that could cover three to six months of living expenses; 77 percent had not stored important financial information and contacts in a secure place.
  • Not checking credit reports. Four out of five respondents don’t review their three credit reports at least once a year, though they’re free and indispensable.
  • Mismanaging debt. Almost one-fifth of those surveyed had revolving debt on credit cards of at least $10,000. Of the almost one-quarter of respondents who were in debt for education loans, 47 percent had taken more costly private loans.

These really are reminders of preparation and paying attention. Insurance agents have even asked me to run some ads to remind people to buy more insurance. Usually when you need it, you really need it and that’s because the person that hits you either has no insurance or very little. If you carry more than minimum, at least your underinsurance coverage can help with your losses, and then your insurance company can even go after the defendant to pay them back.

For pic o’ day, my mom sent me this one, with some real investment advice!

 

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Stress And Money

Tuesday, January 8th, 2013

USA Today had a weekend article titled  ”More Money, More Problems?  Why Rich Kids Hate Mom and Dad”.  The premise of the article was that  money is a magnifier of family tensions, in wealthy families.

Author Franco Lombardo wrote a book, with studies to support,  that the rich are not happy in their family relationships. He asks why 70% of family businesses do not pass successfully to the next generation?  His answer: emotional and bad issues are brewing in wealthy families.

As a wealth and financial planner, he believes that wealthy kids have problems with their parents because of three common reasons: 1. A child of wealthy parents grows up with a sense that they get whatever they want. Then, when they go out into the real world and the world tells them “No”, they are not prepared for it and resent their parents.

His second reason for the emotional turmoil is his belief that wealthy parents end up being absentee parents. So, kids feel abandoned.

Third, he says that society makes fun of rich kids. They are always faced with scorn or jealousy. According to him, kids then blame their parents for issues regarding their identity. He puts his theories and “findings” in his book titled “The Great White Elephant: Why Rich Kids Hate Their Parents”. (not so sure I agree with this)

Sometimes authors write things… just to be authors. I think that we have all heard that money doesn’t buy happiness; Even if the belief is that it is easier to be rich and unhappy, than poor and unhappy. But, for the purposes of this blog, there’s an application to personal injury law. It is the opposite of having too much.  A completely different emotion.

I recently had a lady tell me that she had just lost her job.  Now, she is starting to get worried because her severance pay is running out and she still has not found a job.  Which is more stressful to her… Not having money or not having a job?

When I send in settlement packages to insurance adjusters, they like specific numbers to support the loss. What were the medicals and what were the loss of wages? How much did it cost to fix the car?

In the beginning of the blog, I discussed books on those that have money. Their problems come from having it. Those without, have problems that are way more than emotional. It is actual loss.

The loss of a job is a loss of money, but the worry is even greater. That is a damage in a case that can almost not be measured. For some adjuster putting some dollar amount on the loss, I suspect that they would put a greater amount if they were also facing the loss of their job.

In jury trials, the laws of evidence say that you cannot argue the golden rule. When arguing a settlement value to an adjuster, I still always hope that they will somehow place themselves in the position of appreciating the world of loss and worry.

For pic o’ day, here’s putting yourself in someone else’s position!

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Governor Haley’s Endorsement or Conspiracy?

Sunday, June 10th, 2012

     Some have studied the Zapruder film, frame by frame, to conclude that the government is still hiding something about the Kennedy assassination. Others have concluded that there is a connection to Communism, the mob and organized crime, or even Lyndon Johnson.

     The majority now believes that there was no gunman on the grassy knoll. They accept the government’s full investigation. I suspect that others have tired of the topic and may just think that Zapruder is a new meatball sandwich at Subway. If you obsess over something, you can convince yourself into belief.

     Anyone can combine beliefs with events, and come up with their own reason for an occurrence. Soon, logic is thrown out the window and conclusions are made to fit that belief system. It’s as simple as coming to the conclusion that, since you might know that Canadians play hockey, then all Canadians are good at Hockey. Or, since you’ve seen fast marathon runners from Kenya; then everyone must be a runner from Kenya.

     Politicians know that we all believe that the United States needs more jobs. So, they take that information and apply it for a political belief system. Or, support agendas when large donors “financially suggest” their beliefs.

     If Oil companies are supporting a candidate, then we might hear that candidate say that more drilling is needed to create jobs. Have you heard this one? “We need lawsuit caps, or a removal of regulations on businesses; because those are hurting job creation”. It’s easy to say a big, hearty amen, because who doesn’t want more jobs? It’s also easy to forget the consequences of those political agendas. 

    Pharmaceutical companies are still pushing to have caps or restrictions on lawsuits brought against them. Then, politicians get up and announce that we need to curb or eliminate liability on Drug companies; or else they will not have an incentive to experiment and invent more medications to get us better. Don’t we all want to get better?

     I was reminded of this logic when I read the Sunday paper (well, Internet) from Spartanburg, South Carolina. GoUpstate.com had an article titled “Gov. Haley endorses Bright in state Senate race“.

     Governor Nikki Haley has taken the unusual step of endorsing one Republican candidate over another, for their upcoming primary; to determine the Republican candidate for that Spartanburg Senate seat. Usually, office-holders stay out of inter-party races. In fact, many Republicans employ the old adage of Ronald Reagan who always said, “Thou shalt not speak ill of another Republican”.

     The background to this race is that Senator Bright is the State Senator incumbent. His current opponent, John Hawkins, held the seat from 2000-2008. In 2004, Hawkins was challenged by Bright, but won the primary against him, by a mere 31 votes. In 2008, Hawkins stepped down and Bright beat the other candidate(Hawkin’s friend) by 198 votes. Good old fashioned politics.

     I’ve given you some tedious detail to get to the point of Haley’s endorsement. She says that she is endorsing Bright because “John Hawkins was an incumbent we were lucky to get rid of the first time. We don’t need any more trial lawyers who are going to feed off the system”. She said that Hawkins “feeds off the worker’s comp system” because he represents injured workers. 

     Here’s where my earlier logic discussion applies. Very few people would disagree with the concept that we have too many lawyers. Then, politicians, The Chamber of Commerce, and Big Business have done a great promotion of the message that, lawsuits and lawyers hurt job creation. They even say that lawsuits keep businesses from coming to (insert state name) where the election is occurring. 

     I’ve attached the article for full reading of  the background on this election. Those who accept Governor Haley at face-value on these statements woud not be impacted by any other reasoning. Some might say that the real reason that she endorsed Bright is because Hawkins supported her opponent in the 2010 Governor’s race. Also, Hawkins claims that Bright has held fundraisers with trial lawyers and received thousands of dollars in lawyer campaign contributions. But… those are just mere details.

          One final note, I do smile when I read Haley and Hawkins going at it. Not long ago, I was reminded that I first met Nikki Haley, when she was a receptionist/office manager for a chiropractor in South Carolina. I don’t recall her dislike for lawyers back then.

     A while back, I was informed that John Hawkins was quoted by the newspaper,  by complaining about my South Carolina advertising. He later went on to introduce legislation in an attempt to regulate lawyer advertising. Isn’t life funny!  For blog purposes, I just blog… you decide!

      I first thought about a “no advertising” sign for pic o’ day

 

 

 

 

 

 

 

     Then, I got distracted like Clyde

 

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A Highlights Magazine Reminder

Monday, April 23rd, 2012

 

 

“Highlights Magazine” still gives me a funny nervous feeling. It was that magazine that was always in the doctor’s office, that supposedly had fun games to occupy you; while you waited to go back to have all your teeth pulled out or had some big shot stuck in your arm. No kid likes that waiting room.

Cracked.com reminded me with this above cartoon right from the magazine. When you play “What’s Wrong with this Picture?”, you begin to realize that it would be easier to play “what’s right?”.

Is that a toaster next to the cactus; next to the ice rink that people are swimming in? As you began to solve it, the wrongs start to overwhelm. Then, someone would open the door at the office and say, “Joel, are you ready?’ No, I wasn’t ready. I hadn’t finished my game that hundreds of other kids with grubby hands had already tried to solve, just like me.

Well, I promise that I will be brief in my analogy,  in case you want to go back to solving. Is that a running hotdog? See, I can get easily distracted too.

I just received another letter from an insurance company, where they were denying benefits to my client. In this instance, my client is also their policyholder. You would think that they would want to take care of their own instead of denying benefits. When my paralegal brought me the letter, she even remarked, “Why won’t they pay this?”

What  is wrong with the insurance picture?  That one Progressive insurance advertisement has “Go Big Money” dancing around and Flo says, “Go Big Money. I mean go, it’s your break honey”. I guess that’s it in a dancing answer. It’s about the money.

When you look at the picture to figure out what’s wrong with insurance, I probably could punch out a top ten list. They send out adjusters, sometimes called “pop out” adjusters; who pop out to the house within 24 hours and tell the person that they don’t need a lawyer. Why does it matter to the opposing insurance company whether a person hires a lawyer?

To keep it short… I just wanted to point your mind in the direction of “why”.  Insurance companies probably would keep people from calling lawyers, by making them feel like fairness prevailed.  Courtrooms would mostly sit empty and you wouldn’t have Warren Buffett with Geico, needing a lizard with an English accent to tell us how to compare insurance in the US.  Makes you stop and look closer at the picture.

Guess you could also ask what’s wrong with the Buffett rule?  Can’t everyone wear Parrot shirts and just be happy? Oh wait, is that like a running hotdog, out of place in this blog?   Where’s Waldo?

For pic o’ day, it went along with the blog… that you always need a good exit strategy:

 

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Insurance For Movies

Monday, March 26th, 2012

Most of the time, we think of insurance for medical bills or cars. In Hollywood, insurance means protecting the movies. In this past weekend edition, The New York Times tells the story of how one specific company, Fireman’s Fund, is on set during many shoots, providing insurance.

Hollywood can’t insure that the movies will be blockbuster successes. But, most of the actors in major movies have some kind of  insurance to make sure “the show goes on”.

Ben Turpin was a comedian, known for his cross-eyed acting in silent films. He purchased an insurance policy with Lloyd’s of London, which was payable if his eyes ever uncrossed. Jimmy Durante was an actor, comedian and singer who was most famous for his “Schnozzola”; his description for his large nose. He felt that his nose was such a part of his act that he insured it for $50,000.

This New York Times’ article is filled with stories that are behind the scenes. Because Tom Cruise always seems to be sprinting in his movies, apparently he now believes that his stardom is connected to action or hanging from buildings. Yes, there’s insurance for that.

One of the most expensive insurance payments related to a movie titled “Wagons East!” In 1994, during its filming, 43-year-old actor John Candy had a heart attack and died. The cost of the claim was 15 million when the movie could not be properly finished for distribution.

The next time you watch a wild scene of some horse and rider sprinting through the forest; you might not be thinking about it, but there was some insurance company that was concerned about that rider during the making of that scene. It might make you watch “Hunger Games” a little differently if you see the described futuristic fight scene. Last year, Fireman’s reportedly insured more than 250 movies and related events. That’s why they call it insurance.

Pic 0′ day is a reminder to keep all eyes on the prize:

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A Cat Wrangler

Wednesday, February 22nd, 2012

     I’ve been on a “word roll” for blogging. Can’t help it. The last few blogs just got me going. I’d look down at the word count and realize that I needed to ease up. Just getting too long.   For this blog, I’m just keeping it short.

     Just had to throw that in. Anyway, this Time.com story got my attention. You can now hire a bounty hunter for your cat. Thought it was worthy of a blog mention, since I haven’t had one on contract or employment law in a while.

     For a fee of $80, this lady will coax your cat to a vet appointment or even a trip to the groomer. For $80, it might be worth it just to watch. She claims she always wins. She left the practice of law to do it.

     For pic 0′ day, I thought I’d reach into the vault for “Gone with the Wind…. Gone to the dog and cat”.

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Job Injuries Waiting to Happen

Wednesday, August 3rd, 2011

     The following photos were sent to me by email, with a caption of something about the”intelligence of men”. Most states recognize workers compensation claims for injuries that “arise out of and in the course of employment”. I’m guessing that some of the men in the photos may have qualified for workers compensation, at some point in their lives.

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