Perlmutter & Schuelke, LLP » Workplace Accidents

Head Trauma Causes Railroad Foreman to Sue Employer

jferris — Mon, 30 Jan 2012 20:07:05 +0000

Traumatic brain injury can be deadly. It certainly alters a person’s life.

This on-the-job injury case involved a railroad worker. John Doe (whose name has been changed to protect the victim) had worked for the Kansas City Southern Railway Company for a number of years when he was involved in an accident.
The fateful event happened in 2009 when Doe, a section foreman, and his crew were removing broken rail of a section of track. Suddenly, the boom of the crane struck the ball of the rail still loaded in the rack of a railway section truck. The impact rolled it over the forks on the rack and the rail dropped like a stone to the ground. On its way down, Doe was hit and sustained severe back, neck and head injuries.

From that day forward, Doe suffered unbelievable physical pain and suffering, lost wages, mental anguish, loss of current and future earnings, diminished earning capacity and enormous medical bills that he was unable to pay. Doe hopes that his case will be successful, and that he will be able to recover enough money to take care of himself for the future.
Cases like this are tricky and may also involve worker’s compensation. In some states, a worker is not able to sue his employer because he is being paid workers’ compensation. Since this varies state by state, it is something that needs to be checked with an Austin personal injury lawyer if an accident like this takes place in Texas.

Workers’ compensation is always an issue when workers are injured on the job, but each case is different, so never assume you do not have a case or that you cannot get compensation. The details of the case need to be discussed in depth with an experienced Austin personal injury lawyer. As things currently stand, Texas private employers may choose whether or not they will offer workers’ compensation insurance to their employees. Typically, the employer is mandated to tell the worker if they have coverage or not.

Workers’ compensation pays the medical bills and covers a portion of a worker’s lost wages if they are injured on the job or are affected by a work-related illness and the employer has coverage under the Texas Workers’ Compensation Act, Title 5, Subtitle A, Labor Code. It can also cover for vocational rehabilitation and retraining when an injury prevents a worker from going back to their normal job, and they need to learn a new position to be able to work with a longer-term injury or disability.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Injured? Learn About Your Condition

brooks — Mon, 16 Jan 2012 19:05:57 +0000

A constant issue I hear from personal injury clients is that doctors often do a poor job communicating with patients about the patients’ injuries and their course of care.

But with the internet, there are a number of ways for clients to learn about their injuries and treatment themselves. It is the internet, so some of the information is horrible, but much of it is quite good.

One source that I have found helpful is Up To Date (www.uptodate.com).

Up To Date is an online medical encyclopedia. It is written and edited by doctors, updated frequently, and footnoted very well so you can follow up on studies. It is designed to be used by medical professionals — hospitals, clinics, doctors, etc. It is set up so that it provides basic information about conditions and then answers many of the most popular clinical questions about conditions. When you look at the website, you’ll see that it receives good reviews from doctors and medical facilities from all over the world.

But it also markets to patients. Up To Date currently has a subscription option where you can have unlimited access to the website for 7 days for $19.95 or 30 days of unlimited access for $44.95.

If you have a condition that you want to learn more about, you might consider paying these fees so that you really understand your condition and your future.

We Can Learn About Head Injuries From The NHL

brooks — Thu, 15 Dec 2011 22:09:01 +0000

Like many of you, I’ve never been to a hockey game. But despite that, we have much we can learn from the National Hockey League.

You see. The NHL has a concussion problem.

The NHL’s most recognizable player is young star Sidney Crosby. But last January, Sid the Kid took a high hit and sustained a concussion. His concussion caused him to miss half the 2010-2011 season, the 2011 Stanley Cup playoffs, and the first quarter of the 2011-12 season. He finally came back, but after eight games back, Crosby sustained another hit and symptoms of concussions and is again out indefinitely.

Crosby isn’t alone. In about a quarter of the season, 23 different NHL players have been limited by concussions.

What I take from this is that the NHL, unlike the NFL or some other sports, take concussions and head injuries seriously. And I think it’s important for all of us to learn that.

I frequently tell people that the thing that scares me the most about our car wreck or other personal injury cases are the potential head injuries. They are difficult to diagnose, and the consequences can be life-altering.

So if you or a loved one is hurt in an accident, make sure you’re on the lookout for potential signs of head injuries. Don’t dismiss those headaches, changes in temperament, feelings of confusion, nausea or vomiting, or fatigue. Take them seriously, and seek the care you need.

Personal Injury Claims: What Is Paid v. Incurred?

brooks — Thu, 08 Dec 2011 15:38:44 +0000

One of the most common fights we’re having in personal injury claims is known as the paid v. incurred fight.

In 2003, the legislature passed a law limiting damages in personal injury cases as follows:

In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.

What does this mean?

In many cases, there are two different costs for medical care: there is the list price and the price that the medical provider accepts as full and final payment for the bill.

While it can come up in a number of different situations, the typical situation involves health insurance. One of the benefits of your health insurance is that the insurance company has negotiated reduced rates with various medical providers.

For example, a hospital may have a list price of $10,000.00 for a procedure, but the insurance company negotiated with the hospital so the hospital agrees to accept $5,000.00 as payment in full.

Sometimes this benefits the insurance company — they get to pay less for your procedure. But many times it benefits you. For example, I have a high-deductible insurance policy — my company doesn’t pay until we’ve spent $5,000.00 for a year to meet our deductible. But even when we haven’t met our deductible, the insurance company still processes the charge and reduces it so that I only have to pay the agreed upon reduced rate.

Before the 2003 law, injured people got the benefit of their insurance. When we asked the jury to award medical expenses, the jury was asked to award the entire $10,000.00.

But then the law was passed, and because it was worded so poorly, there was a great debate about what it meant. Finally, the Supreme Court issued a case in July of 2011 clarifying the meaning. And they held that an injured person can only ask the jury for the reduced amount that was actually paid to the medical provider. In essence, a defendant now gets the benefits due you because you had the foresight to obtain health insurance.

This ruling also has an effect on the value of your claims. In some cases, there is little we can do to avoid application of the rule, but in some cases, we can use some strategies to try and maximize your recovery.

If you’ve been injured, you should make sure your lawyer understands these issues and how to maximize your recovery in light of these issues.

What Personal Injury Victims Can Learn From The Military’s Brain Injury Debacle

brooks — Wed, 30 Nov 2011 20:16:31 +0000

The lasting legacy of the Iraq and Afghanistan wars will be the amazing number of head injuries suffered by our troops.

Yesterday, NPR released a report detailing ways that we are failing those injured. One key component of the report was failed testing and diagnoses for the injuries.

The United States has spent $42 million trying to adminster test to members of the military to diagnose whether they have suffered any kind of traumatic brain injury. In theory, the program should work great. Every member is tested before deployment and then upon return from depoloyment, That way, the original tests can serve as a baseline to determine where the military member was before entering the conflict.

But it hasn’t worked out well. From the report:

We have failed. We have failed soldiers,” says retired Col. Mary Lopez, who used to run the Army’s testing program. She still works with soldiers in Germany. “It is incredibly frustrating because I can see firsthand the soldiers that we’ve missed, the soldiers that have not been treated, not been identified, misdiagnosed. And then they struggle.

The story about how the military got where it is, why they chose the test they did, etc are all interesting, but not what I want to write about today.

Instead, I think personal injury victims can learn from Col. Lopez’s summation — brain injuries are difficult to diagnose and when undiagnosed, the injured don’t get the help they need and then have problems.

That is a lesson that is important for those injured in almost every type of injury claim. Brain injuries from car wrecks or other accidents are hard to diagnose. Most of the time, doctors aren’t looking for brain injuries, and doctors usually don’t know their patients well enough to tell if there is a difference in the patient after an incident.

And if the doctors don’t make that diagnose, then the injured don’t get help.

That’s why I always tell my clients to be on the lookout for head injuries. Often, you or a loved one will be the only ones who notice that you have memory issues or a changed personality. So it’s important for you to look out for the symptoms.

It’s also important to get the help you need. When the head injury is severe, there are a number of different forms of cognitive therapies that you can undergo, but the problem has to be diagnosed first.

Personal Injury Cases: Types Of Information Kept From The Jury

brooks — Tue, 04 Oct 2011 15:57:15 +0000

I’m spending a little time today preparing for a jury trial in a couple of weeks, and due to some circumstances, it got me thinking about the things about a case that a jury doesn’t get to know.

These issues sometimes come up when talking to new clients. One of the common comments I hear is, “If the jury just gets to hear about X then that will really help our case.”

But many times, the jury may not get to hear about X.

There are a number of rules that limit what information we get to tell a jury. Sometimes the rules exist to prevent the jury from hearing information that courts believe is irrelevant, and sometimes it is to prevent the jury from hearing information that is deemed to be too prejudicial to one side or the other. Regardless of the reason for the rule, there are a number of limits. Some of the more popular limits are listed below.

1. Insurance. In most personal injury cases, the defendant (the party that did something wrong and is being sued) has insurance to pay for the lawyer and that will pay for any judgment rendered against the defendant. However, one of the most long-standing rules is that the parties can’t tell the jury that the defendant has insurance, that insurance might cover the jury’s award, or anything similar.

2. Attorneys’ fees. In most personal injury cases, the plaintiff (the party that is injured and filed the lawsuit) has to pay his or her attorney out of the jury’s award. And yet, we’re never allowed to tell the jury this fact.

3. The defendant’s history. In many cases, the defendant may have a history that our clients think is relevant. For example, if it is a car wreck case, the driver may have a bad driving record with prior wrecks or tickets. Or, the other side may have a criminal history or a history of alcohol or drug abuse. In most cases, the jury never gets to hear about these “prior bad acts” (as we call them).

4. Settlement offers or negotiations. Sometimes clients think that we can tell a jury about settlement offers from defendants and that the jury will use those as a “floor” for an award. But in most instances, we can’t tell a jury about settlement negotiations, mediation, or other settlement discussions.

5. Effect of jury answers. The way our system works, the jury doesn’t decide who wins or who loses. Instead, the jury is asked a series of questions. But the jury doesn’t get to know what their answers mean, and we’re not allowed to tell them how their answers might affect the ultimate award. This was really demonstrated in a case of ours a few years ago. In a business case, we obtaned a jury verdict that included an $8,000,000.00 punitive damage award. But due to tort reform legislation, that recovery was limited to $250,000.00. When we told the jury about it afterwards, they were floored. They had been trying to punish the defendant for their egregious conduct, but the result ended up being a drop in the bucket for this large company.

My list could go on and on. There are any number of additional things a jury doesn’t get to hear about, but these are a biggies.

And as I said, these are only the general rules, and in some cases, there might be ways for attorneys to legitimately get the right to tell the jury about some of thse items. In fact, I often tell people that one of the advantages of hiring an experienced personal injury attorney is that they might know tricks that increase the likelihood that you get to tell the jury these things. That is especially true for trucking accident cases.

What Is Mediation?

brooks — Tue, 16 Aug 2011 16:26:28 +0000

A mediation is a settlement conference led by a neutral third-party, the mediator. The mediator is often, but not always, a lawyer. In Texas, most courts require you to go through a mediation before you can get a trial in your case.

Generally, the mediation starts with an opening session where all the parties are present. In many cases, when the defendant has insurance, the defendant will not appear, but an insurance adjuster (who is really deciding the amounts to be offered) appears on the defendant’s behalf.

The mediator will start the opening session with his introductory remarks. Those remarks will describe the mediation process and will often include a discussion of some of the advantages of mediation. Depending on the mediator, the remarks may include statements similar to the following:

Mediation is your chance to have input on the resolution of the case without putting it into the hands of 12 (or 6) strangers.

A good settlement is one where both parties end up upset. That means the defendant paid more than it wanted, and the plaintiff accepted less than it wanted.

Don’t underestimate the emotional value of resolving the case. If you settle the case, then tomorrow can be the first morning in months (or years) that you wake up and don’t have to worry about this lawsuit.

After the mediator finishes his remarks, the parties will have an opportunity to make their statements. Generally, the plaintiff’s attorney will go first, and the defense lawyer second. Many times, these sessions become posturing sessions so, no matter what side you’re on, you will hear statements from the other side that will make you mad. When the parties start posturing, it seems to push the parties further away from resolution than towards it. Therefore, in our cases, we generally try to keep our remarks short and try not to make any unnecessary inflammatory remarks. Additionally, in many cases, we request that the mediator not even have the opening session in an effort to prevent this problem from occurring.

After the parties have made their statements, then the mediator will separate the parties into different rooms. The mediator then goes back and forth between rooms and engages in shuttle diplomacy. The first few sessions may involve more in-depth discussions about the case. The mediator may ask you to evaluate your strengths & weaknesses. He may play a devil’s advocate to push and probe to make sure you’re fairly evaluating the case.

In the later sessions, there is less discussion, and the mediator is often just going back and forth trading offers.

The mediation ends when a settlement is reached or when the parties reach an impasse.

A mediation is not an arbitration. A mediator doesn’t have the authority to force parties to settle a case or to decide a case. All decisions about settlement are left up to the parties. Having said that, some mediators will provide suggestions on what a good settlement number should be, but those suggestions are not binding on the parties.

One of the benefits of mediation is its confidentiality. It’s generally confidential in two ways. First, what is said in mediation can’t be used at trial. For example, if you’re trying to resolve a case and make some concession, the other side can’t argue at trial that you conceded that point at mediation. Second, the communications you make to the mediator are confidential. The mediators should not go tell the other side anything you said unless you authorize the mediator to do so. The confidentiality isn’t 100%. There are some rarely-applicable exceptions, and some mediators don’t seem to treat their duty of confidentiality as seriously as others.

There are some rules we typically give our clients about mediation.

Bring something to read or do. A lot of the mediation will be spent with the mediator visiting with the other party. You will want something to do during this time or the time will pass slowly.
Dress in something comfortable, but appropriate. I generally suggest that you dress as you were going to work.
Be prepared to be tired. Mediation is an emotionally draining process. At the end of the day, you will be tired even though you will have spent the entire day just sitting around.

If you want additional resources to understand the process, you may read the following (but remember that their information isn’t specific to Texas so the processes described may be a little different):

Your Case Has Settled. What Now? How Are Settlement Proceeds Distributed?

brooks — Wed, 03 Aug 2011 13:25:22 +0000

You settle your case. What happens next?

It seems like I’ve been asked this question several times in the last week. Because it’s popping up, I thought I’d use this space to answer the question.

Because we have to make payments out of the check (for example, our fees & expenses, payments to health insurance companies for subrogation interests, or perhaps payments to doctors or hospitals for unpaid bills), you don’t get your check the day the settlement check comes in. Instead, we have to go through a multi-step process.

The first step in the process is getting the check from the insurance company or the defendant. This usually takes two to three weeks, though sometimes it is quicker and sometimes slower.

The check is usually made out in one of two ways. In most situations, the insurance company will make the settlement check out to you and to our firm. In some instances, the insurance company will want to directly pay a health insurance company or a medical provider (usually a hospital). In those cases, we’ll received two checks: one to the hospital or health insurance company for the amount it’s owed and one to us and you for the balance. There are also some situations where the company will agree to not put your name on the check to help us speed the process up, but that’s unusual.

When we get the check, if your name is on it, we’ll have to get your signature. Usually, you’ll come into our office for this, but sometimes we can send a runner with the check out to meet you.

Once you sign the check and we sign the check, it is deposited in our trust account. The State Bar of Texas requires us to keep a separate trust account to deposit funds that belong to both us and our clients (or even others).

After we deposit the check, we give it a few days to clear, and then we can write checks for final distribution — that includes checks to you for your portion, checks to us for our portion, and checks to any third-party who need to be paid out of the proceeds.

So what’s it all mean to you? While the process can take a while to explain, it doesn’t usually take that long in practice. Once we get the original settlement check, you can usually have a check for your portion of the proceeds in two to three business days.

BUT, there are some circumstances where it takes longer. Most of those involve us waiting around for Medicare or some other governmental entity on a subrogation claim. If your case is going to be one of the unusual cases held up, we’ll try to let you know that as soon as possible.

Head Injuries/Brain Injuries May Lead To Dementia & Alzheimers

brooks — Wed, 20 Jul 2011 12:49:25 +0000

Several new studies being released this week find a relationship between head injuries or brain injuries and dementia or Alzheimers. Two of the studies, release Monday, establish that brain injuries suffered by football players and by soldiers in battle likely boost the risk of dementia later in life.

I think the use of the term “traumatic brain injury” is misleading to the public (and to many attorneys who don’t routinely handle brain injury claims). Calling it a “traumatic brain injury” makes people think that the risk would only exist in the most serious brain injuries. In reality, a diagnosis of concussion, post-concussion syndrome, a skull fracture, or some non-specific head injury are all considered traumatic brain injuries. Thus, attorneys need to be looking out for these potential risks in most of our cases.

The issue is important to our clients. As Dr. Kristine Yaffe, head of the Memory Disorders Program at the San Francisco Veterans Association medical center (and an author of one of the recent studies) said,

This issue is very important because TBI (traumatic brain injury) is very coommon. About 1.7 million people experience a TBI each year in the United States, primarily due to falls and car crashes.

Sadly, we’ve represented a number of people with brain injuries. The injuries not only affect the victims, but also their spouses, children, and other loved ones (in fact, I believe loved ones are often in a better position to help diagnose brain injuries than those actually injured). This is just another factor that we’ll have to take into account when valuing and trying to resolve head injury claims.

If you or a loved one has suffered a head injury in a wreck or other incident, please feel free to call us at (512)476-4944.

For additional information from us on head injuries, click on the links below:

For additional information on the studies released this week, feel free to click on the links below:

Texas Oil Field Accident Kills One Indicates Austin Personal Injury Lawyer

jferris — Sat, 14 May 2011 23:40:42 +0000

When fatal accidents happen at work, the family may want to file a wrongful death lawsuit.

The day started out like any other workday for the 44-year-old Texas oil field worker. He got to work and started getting ready to get on with his day. The man and his co-worker were working on a pipe rack late in the morning, moving drilling collars, when the pipes gave way and shifted and slipped. The 44-year-old man was trapped between the pipes and suffered injuries so severe that he died when he arrived at hospital a short time later.

The co-worker was fortunate enough to still be alive, sustaining only a leg injury. The U.S. OSHA will be investigating the scene and will likely have a list of questions they want answered about why and how the accident happened.

“They will want to know how well the pipes were secured and if they were secured properly. They will also want to know if both men were working according to safety rules and regulations and had the proper equipment with them that day. If there was negligence involved, this will also be something the investigators will want to pinpoint,” said Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, L.L.P.

In Texas, even though an injured worker may sue, he may not be able to sue his employer. Under Texas law, an employee generally cannot sue his employer if the employer carries worker’s compensation insurance.

“It’s not clear in this particular case if the employer did provide workers’ compensation, but that is an issue that would need to be checked. If there was workers’ comp, this may leave a worker high and dry in terms of his or her ability to recover financial compensation for their injuries,” Schuelke said.

“If you have been in a situation like this, you will want to talk to an Austin personal injury lawyer about how to proceed. This case could be filed as a wrongful death lawsuit as opposed to a personal injury lawsuit, but you would need to know what would be involved. The law changes in this area fairly rapidly and in speaking to a competent Austin personal injury lawyer, you stand a better chance to get justice for your loss,” Schuelke said.

Contact Perlmutter & Schuelke LLP at http://www.civtrial.com or (512) 476-4944.