Archives for December 2017

Reflex Sympathetic Dystrophy (RSD) Pain

Reflex Sympathetic Dystrophy (RSD), also referred to as Complex Regional Pain Syndrome (CRPS), is a condition that can be characterized by a variety of symptoms including pain, frequently a burning type of pain, tenderness, swelling of the area or extremity, sweating, flushing, warmth and/or coolness of the area, discoloration, and in some cases shiny skin.

How RSD develops is not well understood and some would say is unknown, however, it is believed to be caused by an irritation of nerve tissue or abnormal excitation of nerve tissue, which causes abnormal impulses along the nerves which in turn affects blood vessels and skin in the area. This seems to involve the involuntary nervous system, the peripheral nerves, and the brain. The peripheral nervous system is a network of 43 pairs of motor and sensory nerves that connect the brain and spinal cord to the entire human body.

Causes of RSD can be from a wide range of triggers including injury, surgery, shingles, heart disease, degenerative arthritis, stroke or other diseases of the brain, nerve entrapment or irritation such as in carpal tunnel syndrome, joint problems, cancer, specifically breast cancer, and certain drugs such as those used to treat tuberculosis and barbiturates, which act on the central nervous system.

Trauma From Car Wreck Injuries Could Trigger RSD Symptoms

RSD can come on suddenly or slowly over time. There are four stages of RSD/CRPS including the acute phase (stage 1), the dystrophic phase (stage 2), the atrophic phase (stage 3), and stage 4, which most patient’s never advance to and where there is involvement of the inner organs. The acute phase can last 3-6 months and often involves burning, flushing, blanching, sweating, swelling, pain, and tenderness. Patchy thinning of bone can be seen on x-ray in this stage. The dystrophic phase can also last 3-6 months and is marked by early skin changes including shiny, thickened skin and contractures (a shortening or hardening of muscles, tendons or other tissue). This stage is marked by persistent pain with a lesser degree of swelling and flushing. The atrophic phase can be longstanding and involves loss of motion and function of the involved area with contracture and thinning of the fatty layers under the skin. Often during this stage significant osteoporosis can be seen on x-ray.

Since there are few clinical tests that can detect RSD/CRPS, it is usually diagnosed based on the symptoms described above. Treatment for RSD can range from cool moist applications to the area to relieve the burning or stinging sensation. Exercise can help prevent contracture.

Medications may be helpful in reducing pain and swelling. For more persistent symptoms, cortisone (Prednisone) starting with high doses and gradually tapering may be prescribed. Medications such as amitriptyline (Elavil), which is used for nerve pain and depression, pregabalin (Lyrica) which is used to treat nerve and muscle pain, and clonidine (Catapres) which is a medication most often prescribed to treat high blood pressure, however, has shown benefits in treating CRPS involving chronic arm or leg pain developed after an injury, surgery, stroke or heart attack.

More advanced forms of treatment would include nerve blocks, implantable pain pumps, spinal cord stimulators, and even surgery to interrupted the nerves known as surgical sympathectomy.

The Kentucky Uninsured Driver Loophole

There’s a legal requirement, per Kentucky law, that your car must have insurance coverage. Anyone who has read one of my blogs or has visited my website, www.AttorneyDesmond.com, has probably heard me preach about having at least $100,000 per of uninsured motorist coverage on both their automobile insurance and their motorcycle insurance. Nevertheless, it appears there’s a Kentucky uninsured driver loophole.
My blogs tell true stories of how a person injured in a car wreck in Kentucky, through no fault of their own and caused entirely by someone else’s negligence, ultimately discovered that the at-fault driver failed to have his or her vehicle properly insured. Consequently, my injured clients have to rely on their own automobile or motorcycle insurance to cover their medical bills and their claim for pain and suffering.
One of my most recent blogs dealt with the issue of suing an uninsured driver for my client’s pain and suffering and whether the potential recovery justified the cost of litigation. Several readers of that post raised the issue of how is it someone can be uninsured and still be on the road? Since personal injury law usually addresses the after-effect of someone not having their vehicle properly insured, I had to research some of the Kentucky Revised Statutes to find the answers. Unfortunately, from the information I am gathering, it appears that Kentucky law is totally inadequate to address the issue. I believe this creates a Kentucky uninsured driver loophole.
Most of the motor vehicle law for Kentucky is contained in what is known as the Kentucky Motor Vehicle Reparations Act. This Act can pretty much be found in Section 304.39 et. seq. of the Kentucky Revised Statutes. KRS 304.39-080 (5) of the Kentucky Motor Vehicle Reparations Act states that if you own or operate a vehicle registered in Kentucky, you must have at least the minimum amount of liability insurance which is set out in KRS 304.39-110; which is an insurance policy with a single limit of $60,000 or limits of $25,000 per person, $50,000 per accident and $10,000 in property damage.
If you fail to have your vehicle insured, the registration for your vehicle will be revoked, see KRS 304.39-080(5) and KRS 304.39-090, pursuant to KRS 186A.040 and you will be subject to the criminal penalties laid out in KRS 304.39-060.
So, when we are pulled over by a police officer, that officer will has a computer system in his vehicle, known as a Mobile Data Terminal (“MDT”), which is linked to a database referred to as AVIS, Automated Vehicle Information System. This database maintains title, registration, and insurance information for all vehicles, boats and trailers registered in Kentucky.
When an insurance company cancels or does not renew an automobile insurance policy, it is required to provide the Kentucky Department of Vehicle Regulation with the VIN number of the vehicle. If that VIN number does not appear in AVIS for two consecutive months, the Department has to send the insured a statement that they have to show proof of insurance within 30 days or the registration of the vehicle will be revoked. See KRS 186A.040.

This is the part the concerns me; the only proactive step taken by the State of Kentucky when it is informed that a vehicle is not properly insured, according to the AVIS system, is to revoke the registration of that vehicle!

The County Attorney is not even informed of this revocation of the registration unless that registration has been revoked 3 times within a 12 month period. See KRS 186A.040(4)(b). When State Representative Ron Crimm attempted to amend this statute, through HB 337 in 2010, so that the County Attorney would prosecute the first time the vehicle’s registration was revoked. The bill was shot down in part because the Kentucky County Attorney’s Association opined that there would be hundreds of more prosecutions thereby resulting in a significant financial burden to County Attorneys and local jails for the housing of inmates.

Risks of the Kentucky Uninsured Driver Loophole

So logically, according to the current status of Kentucky Motor Vehicle law, I can stop paying my for my car insurance and not until 90 days later, (two months of no insurance showing on my vehicle through AVIS and 30 days notice required by KRS 186A.040), will the registration for my vehicle be revoked. Thereafter, unless I am pulled over and issued a citation, I won’t be subject to criminal prosecution for no insurance so I can renew my license plate just before it expires and effectively save money by not having to pay for car insurance for approximately 9 months. To me, this is a dangerous Kentucky uninsured driver loophole.

Please understand that I am in no way advocating that someone operate a motor vehicle without car insurance.

If you do so, you can be subject to multiple claims from other driver’s for your negligence and even if you were not at fault for the car wreck, you cannot recover the first $10,000 of your medical expenses and lost wages. See KRS 304.39.060. However, I am shocked at what appears to be a big hole in criminal law in regard to Kentucky drivers who fail to carry the proper insurance. Again, as I have said hundreds of times before, there is nothing in Kentucky law that guarantees the at-fault driver truly has liability insurance to cover the damages he causes through in a car wreck.
I am not a politician and nor do I have any desire to be. In fact, out of all my blogs, this one has tended to violate one of my own rules and been overly complicated, by citing statutes, rather than simply addressing the needs of the typical Kentucky driver. However, I thought it was important that you, the consumer, could fact check my sources.
Very simply, the safety of you and your family, while operating a vehicle on Kentucky roadways, needs to be your primary concern. Even if the Kentucky Legislature amended the law so that an uninsured driver would be prosecuted sooner, there is still no guarantee in the law that he could be fully responsible for the injuries and damages he might inflict through his negligence.
My legal advice is remains the same. Rather than which personal injury lawyer you choose or which insurance is company is “best”, make sure each and every motorcycle or car insurance policy you have has at least $100,000 per person of uninsured and underinsured motorist coverage.
Through the analysis described above, there is no guarantee that the other driver truly has car insurance and even if he does, it can be as little as $25,000 per person. Therefore, you need to protect yourself before the car wreck by putting on your own automobile insurance policy the types of insurance you may need should you be involved in a serious car wreck. Don’t be a victim of this Kentucky uninsured driver loophole.

Watch this Brief Video for more Information about Uninsured and Under-Insured Motorist Coverage

Supreme Court on Motorcycle Insurance

Think you have the right motorcycle insurance coverage? According to the Kentucky State Police in 2016, they were 1,841 wrecks involving motorcycles. While this is only a small percentage of the total number of car wrecks in Kentucky in 2016. I try to give a lot of legal advice about motorcycle accidents as they tend to involve the most serious injuries. As a result, they illustrate the shortcomings of motor vehicle law.

Let’s be clear about an overall, huge principle in regard to motor vehicle law. The law is such that an at-fault driver is only required to have $25,000 in insurance coverage. Therefore, regardless of the severity of your injuries and/or which personal injury attorney you may hire, there is no guarantee under Kentucky or Indiana law that the at-fault driver will have enough insurance to fully compensate you for any damages he or she may cause. Motorcycle accidents tend to be the area of the law wherein this concept is seen the most.

Motorcycle wrecks tend to involve severe injuries as a motorcyclist is exposed to the severity of the impact from the car. As I have preached on multiple occasions, the way to protect yourself, as a motorcyclist, is to have at least $100,000 per person of underinsured and uninsured motorist coverage on your motorcycle insurance policy.

Maybe if your injuries are severe enough we can make your automobile insurance cover your damages for your motorcycle wreck, as well. However, insurance companies are allowed to write exclusions, such as this, into their policies and relying only on your automobile insurance for such coverage, instead of adding it to your motorcycle insurance policy as well, is a risk you don’t want to take.

On this issue, let me quote Kentucky Motor Vehicle Insurance Law with Forms by Robert D. Monfort (p. 87, 2014-2015 Edition) that states:

Motor vehicle policies sometimes contain language excluding uinsured motorist coverage while the injured person is a rider or passenger on a motorcycle. This language may take the form of an actual exclusion, or may come into operation due to a policy definition limiting “automobile” or “car” to four-wheeled vehicles. This is exclusion is reasonable, on the grounds that motorcycle riders are a high risk group who make a conscious decision to limit their coverage by the act of electing to ride a motorcycle.

Professor Monfort cites the case of State Farm Mut. Auto Ins. Co. v. Christian, 555 S.W.2d 571 (KY. 1977) that also relies on and references the case of Preferred Risk Mut. Ins. Co. v. Oliver, 551 S.W.2d 574 (KY. 1977).

Now, if I did not lose you just now with a lot of legal-ease, this is the interesting part. The State Farm case, supra, is a Kentucky Supreme Court case that stated the following in regard to motorcycles and motorcycle insurance:

Thus, the question becomes one of whether the exclusion of the motorcycle from coverage is reasonable, an issue we recently determined in Preferred Risk Mut. Ins. Co. v. Oliver, supra. In that case we said:

“It is common knowledge that motorcycle riders, as a class, are among the highest risk groups conceivable. Motorcycles offer no protection whatsoever from the front, back, sides or top, and leave the rider exposed to every peril of highway travel. The exclusion of such a class from coverage is clearly reasonable where, as here, the assured has the option of avoiding the excluded peril. An assured has no choice in selecting those uninsured motorists who may injure him, but he certainly does elect to ride a motorcycle. This volitional act triggers the exclusion and he accepts the consequences.”

The point being that per the exact words of the Kentucky Supreme Court, Kentucky law considers motorcycles to be a dangerous vehicle and therefore, an insurance company can reasonably exclude coverage for motorcycle accidents from automobile insurance policies.

The lesson for you, as a consumer, is that even though you only use your motorcycle a couple of months a year, you have to make sure your motorcycle insurance policy has the right kind of insurance coverage on it regardless of the cost. The case law and statutes are making it clear. Kentucky law does not favor the rights of motorcyclists.

Month: December 2017

Archives for December 2017

Trauma From Car Wreck Injuries Could Trigger RSD Symptoms

Risks of the Kentucky Uninsured Driver Loophole

Watch this Brief Video for more Information about Uninsured and Under-Insured Motorist Coverage

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