Archives for March 2020

More on Car Wrecks Involving Workers’ Comp Claims

Episode 8: In Part 2 of this conversation, Louisville automobile accident attorney Jim Desmond continues his discussion with Louisville workers’ compensation attorney Scott Scheynost about how a collision might involve both an auto accident claim and a workers’ comp claim.

There are more options if a workers’ compensation is involved in your automobile accident case. Rather than simply having to rely on the at-fault drivers’ insurance policy (and potentially your own UM/UIM coverage), Kentucky’s workers’ comp system provides more benefits.

What if a Work-Related Accident Results in Death?

Jim and Scott describe a previous case involving a work-related fatality. Workers’ compensation benefits are often tied to the amount of money you were earning, prior to the accident. However, under the current workers’ comp system, there’s a significant lump sum death benefit amount that’s paid directly to the deceased worker’s estate. The current amount is approximately $85,000. This amount is not related to your earnings.

Your dependents may also be able to receive benefits, based on the amount of money you were making.

How Do Workers’ Comp Attorney’s Fees Differ from Personal Injury Attorney’s Fees?

While a typical personal injury lawyer may charge a 1/3 fee (33%) or more of any financial award in an automobile case, under Kentucky’s workers’ compensation law, workers’ comp lawyer fees are limited to 20%, up to a maximum of $18,000.

Can worker’s comp benefits be disputed?

There may be a valid argument that an employee may have decided to deviate from his/her work-related travel. Generally, minor deviations during the day may still be covered. For instance, stopping off at a restaurant for lunch, pulling into a rest area to use the restroom. It really depends on how far the driver went for a non-work-related activity.

If the workers’ compensation is successful in arguing the employee made enough of a deviation that the accident is not covered, the employee still has the option of pursuing a normal auto accident claim. Remember, if it is work-related, the claim will be handled as a workers’ compensation claim. That system is considered “primary.”

Are Independent Contractors Covered by the Employer if They’re in an Accident?

The employer’s control over the laborer or independent contractor, may legally require the employer’s workers’ compensation coverage to pay benefits. The more say a company has in the activities, tools, etc., the higher the amount of control over the activities of that individual. In this case, the law may actually consider the independent contractor to be eligible for workers’ comp.

If the employer doesn’t have workers’ compensation coverage, the government has a fund to cover these situations, if someone qualifies. This is the Kentucky Uninsured Employers Fund.

A personal injury attorney can handle the property damage and a auto accident claim for pain and suffering. The workers’ compensation attorney will handle the medical expenses claim. There’s also a possibility that both can use a permanent impairment as part of the multiple claims. If your attorneys can work together, you may have multiple options for recovering compensation for the issues related to the collision.

Can Company Executives File for Benefits if Injured Traveling for Business?

For more highly-compensated employees (e.g. managers or executives) who are injured while traveling for business, their medical expenses could be covered, but there is still a limit on the Temporary Total Disability (TTD) payments, because they are capped at 2/3 or your average weekly income. There’s also a cap on the dollar amount of your TTD (currently it’s approximately $900).

If the individual is traveling outside of Kentucky, Kentucky workers’ comp coverage should still apply, in addition to potential automobile accident coverage (e.g. UM/UIM), if they were driving. It’s also possible that local coverage may apply, enabling the individual to choose which system to use.

For more information about Louisville Personal Injury Attorney Jim Desmond, visit www.AttorneyDesmond.com.

For more information about Louisville Worker’s Compensation Attorney Scott Scheynost, visit http://www.scheynostlaw.com/.

Important Disclaimers:

The information provided on this podcast is for general informational purposes only. It should not be construed as legal advice and does not constitute an attorney-client relationship. You should seek the advice of an attorney for guidance related to your specific situation. I am only licensed in Kentucky and Indiana, so the general advice provided may not apply outside of those states.

This podcast maybe freely shared, but may not be the modified or edited in any way. This is an attorney advertisement. Principal office is located in Louisville, KY. Co-host Jim Ray is a non-attorney spokesperson.

LMPD May Not Show Up for Your Wreck

LMPD indicated yesterday that they will not be responding to non-injury car wreck and/or hit and run accidents. So, stop and think about the fact that when a car accident happens, you potentially have four claims immediately: 1) a claim for the damage to your vehicle; 2) a claim for the loss of use of your vehicle while it is being repaired or because it was a total loss; 3) a claim for any medical bills stemming from any injuries sustained in the car wreck and; 4) a claim for your pain and suffering. Even though LMPD may not show up, you should be proactive.

For the moment, just concentrate on 1 & 2 and realize that without a police report, YOU have the burden on obtaining detailed information so that you can get your car fixed! As a result, let’s discuss what steps YOU need to take as a consumer should you be in a car accident.

If there is not going to be a police report, the biggest change is realizing that the burden of getting detailed information about the car accident will fall to you! So, remember the old phrase that a picture is worth 1,000 words! The easiest way to gather information is to pull out your smart phone and go crazy by capturing the information through photographs.

What kind of information do you need?

Where did the car wreck happen? Insurance carriers will want street names, cross-streets. You should note any landmarks that might be useful later on. Make a note as to which direction both drivers were traveling and on what street. Take photographs of the street signs.
Take photographs of the location of the vehicles and the damaged area of each vehicle. Take a picture of the license plate of the other vehicle. For a Kentucky plate, we can run the license plate through the County Clerk and find out the insurance information for the last time that vehicle was registered.
You are going to want the name, phone number and address of the other driver(s). You can find liability insurance for a car wreck on the driver of a vehicle or on the vehicle itself. As a result, you will want to know 4) does the other driver own the car they were operating? If not, get the name, address and phone number of the vehicle’s owner.

Be Proactive at the Crash Scene, Because LMPD May Not Show Up.

Get the name and policy number of the other driver’s insurance carrier. When I call a claim into an insurance company, the first issue is can we locate an insurance policy on the at-fault driver. As a result, the more information I have, the better. So, take a picture of the at-fault driver’s license plate, insurance card, the vin number of the vehicle and the make and model of the vehicle. Correct, some of this may be overkill and you may not need to take all these steps. However, realize that without a police report, your personal injury claim against the at-fault driver will turn into an uninsured motorist claim against your own insurance carrier unless we know who hit you and who they are insured with. On that note, recall that Kentucky uninsured motorist coverage does not cover your vehicle; you need collision coverage for the property damage claim. So again, the lessen is go overboard on getting the information while you can so you can get your car repaired.
For a hit and run accident, remember the law does not want me to hit a tree and then have a personal injury claim because I said someone ran me off the road. As a result, the law essentially requires contact between the two vehicles. Now, because LMPD may not show up, you need to create documentation. So, if you are involved in a hit and run car wreck and can’t get a police report, take a bunch of photographs. Take photographs of the damage to your car and the accident scene while at the scene of the wreck.
Look for surveillance video that may have captured the car wreck at the surrounding businesses. It has become a regular part of my legal practice to look for videos of the car wreck. Why? Because when someone tries to argue my client was at fault for the car wreck, it is the best way to prove otherwise.
Insurance carriers are going to be more likely to ask you to give a recorded statement if there is not a police report. Insurance companies have to investigate a claim, even property damage, and a recorded statement is one way to do that. While I am not a fan of recorded statements, they do seem more necessary when there is no police report. As a result, my advice to you is to remember what you hear on television, “Anything you say can and will be used against you in a Court of law.” So, don’t minimize your injuries and don’t guess at facts you don’t know. Usually, I like my clients to give the recorded statement to their own insurance carrier and then get that insurance carrier to share the statement with the at-fault driver’s carrier. Also, more importantly, if you did your job and collected a bunch of photographs, get those photographs to both insurance carriers. It may prevent the need for a recorded statement.

For additional information, you can listen to my podcast episode on What to Do after a Car Wreck. It provides some additional tips for your consideration.

I hope this article provides you with with some valuable information you and your loved ones my need, during the next few weeks and/or months, especially because LMPD may not show up. If you need to speak with me, you can call my cell phone at (502) 609-7657. Please drive safely.

Personal Injury and the Corona Virus

As a personal injury lawyer, I did not expect to have to comment on the coronavirus. However, several phone calls I recently received have made a couple of points worth mentioning.
1)    I am still open and doing business. If you have a legal question about a car accident, I am still answering my cell phone and will continue to do so.
2)    Many aspects of a personal injury claim can be handled electronically if that makes you more comfortable.
3)    Yes, I am happy to come to you to meet with you or we can handle most of the initial sign up over the phone.
4)    If a doctor’s office is closed because of the virus, we can find you another one where you can continue your treatment. I know of some doctors who will even come to you.
5)    Most importantly, from what I am hearing about the virus, I expect the U.S. economy is going to suffer a downturn.  Because of this downturn, there is a strong likelihood that more drivers will not have car insurance or will lower their liability coverage in an effort to save money. As a result, it is all the more important that you realize that the other driver may not have enough insurance coverage to pay the medical bills from your car wreck or any of your other out of pocket expenses.
6)    As a result, the need to have at least $100,000 per person of uninsured and underinsured motorist coverage, on your own automobile insurance, is all the more important.

Dealing with Bills from Motorcycle Wrecks

In a recent podcast episode, I discussed the law concerning motorcycle wrecks at length. It’s so important that I took my outline for that podcast and I elaborated on it below. I hope this information assists you and don’t hesitate to call me at 502-609-7657 if you have concerns about your motorcycle accident.

Personal Injury Law for Motorcycle Wrecks

Usually, when someone is involved in a motorcycle collision, there are high damages (e.g. medical bills and lost wages) and insurance coverage on that at-fault driver that is inadequate. One of the biggest responsibilities of a personal injury lawyer handling a motorcycle accident is addressing how the medical bills from a motorcycle wreck are going to be paid. After all, the medical bills alone may exceed the applicable insurance coverage on the at-fault driver.

Keep in mind that the job of a good personal injury lawyer is not only to maximize how much he can get you with right hand BUT ALSO and EQUALLY IMPORTANT to minimize the deductions from your personal injury settlement with his left hand (e.g. health insurance liens, attorney’s fees, unpaid medical expenses). A good personal injury attorney has both these roles. It’s most clearly evident in Motorcycle accidents. It’s one of best examples of the dual roles a good personal injury lawyer must accomplish.

Before the wreck

Make sure you get UM and UIM coverage on your motorcycle policy, not just the automobile policy. PIP coverage is not standard with motorcycle policies but it can be bought as optional PIP coverage though. Always, assume that there is an exclusion wherein your car insurance policy will not apply to motorcycle wreck. Typically, there’s an exclusion (a provision in that long insurance policy that says we won’t cover you while doing something). A common one is a coverage exclusion while you are operating a motorcycle or if the vehicle is regularly owned and operated by you, but not listed in the insurance policy. We may look at your automobile insurance policy for further insurance coverage if you were severely injuries; however, we want the automobile policy to be a fallback position.

At the Crash Scene

Motorcycle wrecks often involve EMS transportation to the Emergency Room. Plan on having your health insurance cover the medical expenses because of lack of PIP coverage on your motorcycle. Yes, your health insurance has a lien against your settlement and their subrogation claim will need to be addressed at the time your personal injury claim is settled.

If friends or family are present at the accident scene, have them get names of witnesses, take photos (of the scene, the vehicles, bruises and cuts) and look for cameras. This will help to preserve valuable pieces of evidence to be used in negotiating with the insurance adjuster and/or as evidence if the claim proceeds to a jury trial.

I will meet with a client at the Hospital or at Home

When I meet with a potential client at the hospital, our discussion usually involves a lot of speculation because I don’t know the details of all the applicable, insurance coverage. It is a little bit like a doctor warning of all possible outcomes from a surgery (i.e. because unknown liability limits.

I will get the Police Report

I use http://www.buycrash.com to download police report off the internet. One thing I immediately look at is which driver does the Officer list as the number one driver. On the police report, the at-fault driver, according to Officer’s opinion, is usually the number one driver. Remember Kentucky is a “pure comparative fault” state, so a personal injury claim may still exist even if the majority of fault is placed on the motorcycle rider.

I will contact Their Insurance Company

I will open a claim with the insurance carrier for the at-fault driver. As your injury attorney, I may have to run the license plate with the County Clerk to track down insurance on the at-fault driver. Insurance coverage can exist through the driver or owner of motor vehicle.

Final Thoughts

As you can see, dealing with medical bills from a motorcycle wreck is extremely complex. There are many factors to consider. Probably the most important factor is does your attorney have extensive experience handling motorcycle accident claims?

If you’d like to discuss your specific situation, you can call me on my cell phone at (502) 609-7657. I understand how to effectively represent victims of motorcycle collisions. I’ve been doing it for many years.

Car Wrecks Involving a Workers’ Comp Claim

Episode 7: Louisville automobile accident attorney Jim Desmond invited his friend attorney Scott Scheynost, who handles Kentucky workers’ compensation, to join him. If you are involved in a collision, while performing work-related activities, you may qualify to file a workers’ comp claim, as well as a personal injury claim.

Louisville personal injury lawyer discusses when you can also file a workers' comp claim — Attorney Jim Desmond

Scott Scheynost discusses filing a workers' comp claim for a car wreck — Attorney Scott Scheynost

Who’s Responsible for My Medical Bills?

If you’re on the job, it’s probably work-related, which means workers’ comp is primary for your medical bills and lost wages. While Kentucky no-fault coverage (PIP coverage) generally covers up to $10,000, there is no limit under Kentucky’s workers’ compensation system for your medical expenses.

Kentucky is a choice-of-provider state. This means you can select your doctor, instead of having to go to a company-select doctor. This is an extremely important because your family doctor will focus on getting you healed, while the company-doctor may have an incentive to contain costs by limiting treatment, tests and potentially urging you to return to work more quickly.

Jim Desmond can the third-party claim against the at-fault driver. Scott Scheynost can handle the comp claim. If you have injuries related to the car wreck, workers’ compensation will cover the medical treatment and lost wages. However, once you’ve recovered, the benefits will stop, unless there’s a permanent problem. The automobile accident claim will address your pain and suffering, which could be more that the amount you received via your workers’ compensation claim.

Permanent Injuries from Work-Related Car Wrecks

If there’s a permanent impairment, that will factor into both the third-party claim and additional money based on your impairment rating. The impairment rating of your permanent disability is based on a number of factors. In Kentucky, you’re also entitled to lifetime benefits as part of your workers’ comp claim. Some injured employees may also qualify for vocational rehabilitation (up to 52 weeks for books, tuition, travel and related expenses).

In Kentucky, you generally have 2 years from the date of the accident to file a claim for a car wreck. Kentucky’s workers’ comp system also has a 2-year statute of limitations, but that goes from either the date of the accident or the date of the last payment for temporary total disability benefits (TTD), whichever is later. It’s a good idea not to wait because gathering the records related to the crash, your medical records and other information can take significant time.

What if My Treatment is Denied?

The workers’ compensation adjuster/carrier can attempt to deny the treatment, but you can also use your PIP coverage to go ahead and at least part of the expense paid for, while the workers’ comp process is being either negotiated or argued before the judge. The earlier you get your claim started, the quicker you may be able to get the treatment you need.

Can I Get Fired if I File a Workers’ Comp Claim?

Kentucky has a specific law to prevent retaliation. If the employer does attempt to retaliate because you filed a workers’ comp claim, it’s important to document what they are doing, what’s changing or being threatened to change. Good communication with your attorney is an important factor in the success of your case.

What if I’m involved in a Collision, on Company Policy, before I Clock in?

If you’re injured in a company-owned parking lot or an area in which the company exerts control, you’re probably eligible to file a workers’ comp claim. Again, good communication with your attorney is important.

If you’re hit by a fellow employee in the company parking lot, Kentucky’s Exclusive Remedy Law may prevent you from suing the employee, but you are still covered under workers’ comp.

However, if you are involved in a wreck with someone who works at the same company, but it’s not work-related, or on company property, you may be able to pursue a third-party claim (e.g. a car wreck claim). This situation isn’t work-related, so Kentucky’s workers’ compensation system would not apply.

For more information about Automobile Accidents, visit https://attorneydesmond.com/.

For more information about Workers’ Compensation, visit http://www.scheynostlaw.com/.

Important Disclaimers:

Month: March 2020

Archives for March 2020

I UNDERSTAND! You Need Simple, Immediate, Experienced Legal Advice.