Fayetteville Personal Injury Lawyer - Miscellaneous

Social Security Disability Insurance Benefits - You Paid For Them

Brent Adams — Sat, 07 Feb 2009 09:55:00 GMT

Most United States taxpayers are the beneficiary of a disability insurance policy.

This “policy” provides for monthly payments in the event that a wage earner becomes unable to work.

Disability is defined, for Social Security purposes as:

1. “The inability to do any substantial gainful activity by reason of any medically determinable, physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months”.

To meet the definition you must have a severe impairment, which makes you unable to do your previous work or any other substantial, gainful activity, which exist in the national economy.

The term “substantial, gainful activity” means work that involves doing significant and productive physical or mental duties and is done for pay or profit. If a claimant is able to engage in substantial gainful activity, then he is not considered disabled. This is true regardless whatever physical problems he may have.

In determining whether the claimant can do any other type of work, the claimant’s age, education, and work experience are very important.

The older a person is, and the less education a person has, the less likely they will be determined to have the ability to do other work.

It is easy to apply for Social Security Disability Benefits. There are Social Security offices in Fayetteville and in Smithfield. The personnel in those offices will assist and prepare the necessary paperwork. Application can also be made by phone.

Many people are determined to be disabled and therefore entitled to disability benefits upon the first determination. However, do not be discouraged if you are turned down at the first determination. There are several appeals available after the first determination. You should always appeal from a decision denying disability benefits.

The claimant is entitled to a hearing before an Administrative Law Judge. This Judge will hear the evidence anew and will not be influenced by the fact that the claim has originally been turned down.

While the initial application for social security disability benefits is easy to file and no lawyer is necessary, if the claim goes before an Administrative Law Judge, the claimant should be represented by an attorney. At Brent Adams and Associates, we have successfully represented hundreds of claimants who have been turned down repeatedly for disability insurance benefits. These claimants have gotten full social security disability benefits before the Administrative Law Judge.

Originally posted at InjuryBoard by Brent Adams

Every Bad Faith Insurance Victim Cannot Have Good Morning America As Their Lawyer

Brent Adams — Sun, 01 Feb 2009 21:20:18 GMT

Susan Kristoff of West Palm Beach, Florida was diagnosed with Stage IV metastatic breast cancer which was spreading throughout her body.

There was no question in the mind of any of her doctors that she was unable to work and would be for quite some time.

Nevertheless, her disability insurance company, CIGNA refused to pay her disability insurance benefits.

Under her contract CIGNA was required to pay 60 percent of her pre-disability income throughout the time she remained disabled.

Fortunately for Susan Kristoff, American Broadcasting Companies News Department learned of Susan's plight. They came to bat for her and posed some hard questions to CIGNA. CIGNA refused to respond but instead sent an insurance industry lackey, Susan Pisana, a representative of the insurance company trade group, America's Health Insurance Plans who gave the usually insurance company spiel to the effect that insurance companies have "every incentive to continue to get better".

Soon thereafter, CIGNA announced that based on "additional information … her disability benefits would be covered".

What was this "additional information" that caused CIGNA to do an about face? Of course, there was no additional information. CIGNA simply realized that their position was untenable and could not be held up to public scrutiny by ABC television.

As stated by Susan Kristoff's lawyer, Alicia Paulina Grisham, "Its not additional information … the only thing that changed this case is that 'Good Morning America' started calling CIGNA. And they knew that there was a good chance that their normal insurance delay tactics would be exposed."

This case had a happy outcome for Susan Kristoff. However, not every disabled person can have a major television network come to their aid. For most people, the deny-and-delay tactics regularly employed by disability insurance companies will prevail and the deserving disabled policyholder will get nothing.

Most disability insurance policies in this country are governed by a federal law known as the Employers' Retirement Income Security Act, (ERISA). The act was designed to protect America's workers from corporate management who made a regular practice of stealing from employees' pension funds. Unfortunately, federal judges have horribly distorted the law which now serves as a refuge for disability insurance companies who are not willing to live up to their obligations to their disabled policyholders.

Under ERISA, there is no incentive for an insurance to pay claims. If an insurance company refuses to pay, the only consequence is the court will make them do what they should have done from the beginning, pay the claim. Sometimes judges award interest and attorneys' fees. However, that is no real incentive to discourage this improper conduct.

Insurance companies need the threat of the possibility of having to pay punitive damages in order to discourage their unfair conduct. Under ERISA, punitive damages or not allowed. Insurance companies need to understand that they will be punished for not paying claims fairly. Otherwise, there is no incentive to settle.

Hopefully with the change in administration, the new president and congress will take steps to correct this horrible anomaly in the law. Otherwise, there will continue to be hundreds of thousands of Susan Kristoffs who will not have the benefit of intervention by a major television network.

Originally posted at InjuryBoard by Brent Adams

Returning To Work After A Workers' Compensation Injury

Brent Adams — Thu, 07 Aug 2008 00:04:31 GMT

DO NOT GIVE THEM AN EXCUSE TO FIRE YOU

WHEN YOU RETURN TO WORK

You should use extreme caution when you return to work after any workers’ compensation injury. Be sure not to give your employer any reason to fire you.

It is possible that if you are terminated, the court will construe the conduct which led to the termination to have been a constructive refusal to return to work. In that case, you may not be able to resume collection of workers’ compensation benefits even if your injury prevents you from returning to your full duties.

One example is the case of a lady who returned to light duty who was fired for alleged gross misconduct after she exposed her buttocks

If the employer can show that an employee was legitimately terminated and that a non-disabled employee ordinarily would have been terminated under the same conditions, then the employer has created a rebuttable presumption that the employee’s misconduct constituted a constructive refusal to perform the work provided. Unless the worker can rebut that presumption, workers’ compensation benefits will be stopped

The employee can rebut that presumption by showing that the inability to find or hold other employment is due to a work-related disability.

Originally posted at InjuryBoard by Brent Adams

If you have purchased a workers compensation "Ghost" insurance policy, you may be entitled to a refund

Brent Adams — Fri, 09 May 2008 10:11:38 GMT

Insurance companies collect millions of dollars from North Carolina citizens paid as premiums for insurance policies which provide absolutely no insurance. The insurance industry practice of issuing these "no insurance" policies has become so widespread that this particular type of policy has earned a special name in the insurance industry. These policies are appropriately referred to as "ghost policies". The term "ghost" refers to the fact that the insurance company will never have to pay a claim for these policies.

Why would anyone buy an insurance policy, which provides absolutely no insurance and for which they will never receive any benefit?

The answer lies in a strange quirk in North Carolina's Workers' Compensation law.

The law imposes an obligation upon general contractors to pay workers' compensation claims for injured employees of a subcontractor hired by the general contractor. If the subcontractor does not carry workers' compensation insurance. Because of this obligation, general contractors require from a subcontractor proof that the subcontractor carries workers' compensation insurance to cover the employees of the subcontractor.

Many subcontractors do not have employees, but instead work as sole proprietors working without any employees. An example would be plumbers, electricians, truck drivers, and other tradesman who are not regularly employees of the contractor that work as subcontractors and who have no employees.

Although the general contract has no obligation to the subcontractor to pay workers' compensation benefits for injuries, the general contractors still require the subcontractor with no employees to purchase workers' compensation insurance.

The insurance industry has accommodated this demand from general contractors for workers' compensation insurance by issuing a "ghost policy" to independent contractors who have no employees. These policies of insurance do not provide insurance coverage to the independent contractor because he or she is not an employee, but is the owner of the business. Since the subcontractor has no employees, there could never be any claim against the policy since there are no employees to insure.

Because of this unusual circumstance, the insurance company is never at risk on these policies. That is, there is no circumstance under which the insurance companies would ever be liable for a claim.

North Carolina law is clear that an insurance company is not entitled to any premium for insurance policies under which the insurance company is never at risk.

If you were forced by a general contractor for an employer to buy a workers' compensation insurance policy and if you never had any employees during the time, the policy was enforced, you may very well be entitled to a refund of all the premiums you've paid for any such policies.

Originally posted at InjuryBoard by Brent Adams

U. S. Supreme Court Holds That Federal Law Protects Manufacturers Of Defective Hearing Aids.

Brent Adams — Wed, 23 Apr 2008 01:13:46 GMT

Federal law protects manufacturers of defective hearing aids.

Under a recent federal law passed by congress no matter how defective the hearing aid, if the federal Food and Drug Administration approves the product, the manufacturer is immune from any liability for its' defective products. States have no power to protect its' citizens from defective products and drugs. Federal law trumps state law in this situation.

The FDA during the Bush administration, has been notoriously lax in protecting the public from harmful products and drugs. The FDA is under staffed and under funded and simply does not have the resources or the apparent inclination to protect the public from sloppy manufacturers.

The U. S. Supreme Court has now put its stamp of approval on this anti-consumer legislation.

The effect is to put this small understaffed agency, the lame FDA , in charge of all hearing aid laws in the United States, both state and federal.

Because of the recent decision of the U.S. Supreme court that medical device makers are protected from liability when their devices have been approved by the Food and Drug Administration, a recent product liability case against the maker of a defective hearing aid has been dismissed by the Supreme Court of Arkansas. The suit was against Soundtec, a hearing aid manufacturer. The suit was filed by a man who alleges that he received personal injuries from ear damage that was the result of having a hearing device implanted in his right ear in 2002.

While the February ruling by the U.S. Supreme Court will negate some product liability suits related to defective medical devices that are currently making their way through state courts, how great an effect it will have is unclear due to most medical devices on the market today going through a different approval process than the one at issue in this case.

One suit that was apparently nullified was the claim Gary Despain filed against Soundtec. In 2004, Soundtec argued successfully that state law was pre-empted by federal law in the matter and therefore the state court had no jurisdiction. Despain’s attorneys filed an appeal and on Friday, April 11, the Arkansas Supreme Court upheld the lower court’s ruling. The suit was later returned to the lower court, but within two weeks, the U.S. Supreme Court’s pre-emption decision was handed down. Soundtec’s attorneys asked the state Supreme Court to reconsider the earlier decision and the dismissal was reinstated.

According to Despain’s attorney, he continues to be unemployed and disabled because of the device, which caused him to suffer severe ringing in his ear before later being removed. His job at Franklin Electric Co. further aggravated the problem because of machines producing electromagnetic fields.

Originally posted at InjuryBoard by Brent Adams

Hotel Shower Burns Causes Scarring and Disfigurement

Brent Adams — Thu, 27 Mar 2008 23:07:33 GMT

A 79-year-old Hurricane Katrina refugee from New Orleans has filed a $100 million negligence suit against a New York, New York hotel, claiming that she fainted and suffered personal injuries due to being scalded while taking a shower in the hotel.

According to Ethel Tropez, who now resides in Live Oak, Texas, the March 29, 2007 incident in the Hotel Chandler resulted in being badly burned and suffering scarring and disfigurement. Her attorney, Christina Panzarella, says the water was too hot for a shower and was "close to boiling." She said that it was hot enough to burn Tropez's skin off and caused her to suffer third-degree burns.

According to Panzarella, the stall door for the shower opened inward and after being hit by the first blast of hot water, Tropez was unable to escape the small enclosure and passed out. Panzarella said that she laid unconscious for at least 30 minutes under the hot water under her daughter returned and notified hotel staff members that she was unable to get into the room.

Panzarella said that the personal injuries Tropez received required her to spend a prolonged period in the hospital and undergo multiple surgical procedures for skin grafts, particularly on her legs. She said that Tropez is still receiving medical treatment from the Brooke Army Medical Center at Fort Sam Houston, Texas.
Panzarella called Tropez "lucky to be alive," however she noted that her injuries were severe and she is now barely able to walk.

Originally posted at InjuryBoard by Brent Adams

COPD Drug May Be Harmful

Brent Adams — Wed, 26 Mar 2008 02:49:39 GMT

According to a statement made on Tuesday, March 18 by the U.S. Food and Drug Administration (FDA), a drug used for the treatment of chronic obstructive pulmonary disease (COPD) may be harmful to those who use it. As if the disabling condition of COPD was not difficult enough, the FDA says that Spiriva, a lung drug manufactured by Pfizer Inc. and German-based Boehringer Ingelheim Pharmaceutical Inc., may carry with it an increased risk of stroke.
According to the FDA, there is no conclusive proof of the increased stroke risk, but they still wish to inform doctors and patients of potential problems as soon as possible.
Spiriva HandiHaler is a drug used for the treatment of COPD that has been co-promoted across the world by Pfizer and Boehringer Ingelheim.

Originally posted at InjuryBoard by Brent Adams

Oprah Winfrey Sued By Audience Member

Brent Adams — Tue, 25 Mar 2008 02:27:02 GMT

A woman has filed a lawsuit claiming that while she was in Chicago, Illinois, she received personal injuries in a rush for seating at the set of the Oprah Winfrey talk show.
According to the claims of Orit Greenberg, Harpo Studios exhibited negligence through their failure to control the audience during the December 5, 2006 incident. She filed the suit seeking damages in excess of $50,000.
According to the suit, the members of the audience were informed to take a seat wherever they liked. Allegedly, Greenberg was pushed down a flight of stairs by the crowd, which caused her to suffer "severe and permanent" personal injuries.
There has been no response from Harpo Studios because, according to a spokeswoman, the studio has a policy not to comment on pending litigation.

Originally posted at InjuryBoard by Brent Adams

Hormone-replacement drug manufacturers must pay$ 27 Million punitive damages

Brent Adams — Fri, 07 Mar 2008 14:22:33 GMT

A federal jury awarded an Arkansas breast cancer victim $ 27.2 million punitive damages award yesterday on top of $ 2.7 million in compensatory damages after she developed breast cancer from taking the defendants' hormone replacement drugs.

The jury found that the defendants had not adequately warned Donna Scroggin that the drugs caused an increased risk of developing breast cancer.

She had taken the drugs, Premarin Prempo and Provera to ease the symptoms of menopause.

The jury verdict ordered Wyeth, the manufacturer of Premarin and Prempro to pay $ 19.4 million of the punitive damage award and Upjohn , a unit of Pfizer, the manufacturer Provera to pay thte balance of $ 7.8 million.

Wythe faces 5,300 similar suits in state and federal courts across the country.

The victim's lawyer, James Morris of Brent Coon & Associates stated that he was pleased that the jury recognized that "this was beyond just negligence".

The defendants who plan to appeal claim that there is no basis in fact or law for either the compensatory award of the punitive damages award.

Originally posted at InjuryBoard by Brent Adams

North Carolina Has Good Workers' Compensation Benefits Compaired To Most States

Brent Adams — Tue, 26 Feb 2008 21:30:17 GMT

A recent news article about a workers' demonstration in Mississippi reminds us of how good North Carolina workers' compensation law is compared to the law in most other states.

The unfortunate workers in Mississippi live with a 60 year limit on workers' compensation benefits. The current limit in Mississippi is 450 weeks of workers' compensation benefits, no matter how severe or permanent the injuries.

Supporters of the rally are pushing for a 500 week limit.

By comparison, there is no limit in North Carolina on the number of weeks that a totally disabled worker can collect workers' compensation benefits. A totally disabled worker will collect weekly workers' compensation benefits for the remainder of his life or until he is able to go back to work.

On Monday, February 18, gatherers held a rally at the state capital of Mississippi on behalf of all the workers in the state, in hopes of changes in the worker's compensation policy of the state.

The members of the Mississippi Workers Center for Human Rights are hoping to see better benefits for employees who have personal injuries occur while on the job.

There have not been any changes in the worker's compensation system of the state since the year 1948.

In 2006, more than 12,000 workers in Mississippi were injured while on the job. The state is one of only 17 that have a ceiling on the amount of benefits that an injured worker can receive from worker's compensation.

Originally posted at InjuryBoard by Brent Adams