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Workers’ Comp in Plain English: A Breakdown of the Process for Employees

Workers’ Compensation (also known as workmans’ compensation or workers’ comp) is a type of insurance available for employees in the event they become injured due to an on-the-job incident. You may be aware that it’s available but do you really know the ins and outs of it? While workers’ comp benefits vary from state to state and you should always contact your state’s workers’ comp board for details, I spoke with three lawyers who offered a general breakdown.

Types of Workers’ Comp

There are several different types of workers’ comp benefits. The most common types include: medical care, rehabilitation, cash benefits, and supplemental benefits.

Nathan Morris, attorney and partner of Bighorn Law noted: Medical care typically covers any bills associated with your diagnosis and treatment including surgery and medical expenses. Rehabilitation benefits are designed to aid in recovery.

When people think rehabilitation benefits they automatically think physical therapy according to Marc Lamber, attorney and partner on the Lamber Goodnow team, but physical therapy is only one part of it. Rehabilitation extends to vocational rehab, which covers job training such as education repayments and aptitude tests in the event workers are unable to return to their existing job.

Cash benefits and supplemental benefits both can cover lost wages.

How Workers’ Comp Differs from Health Insurance

The key difference between health insurance and workers’ compensation is that health insurance covers injuries that are not job-related, added Lamber. Employers are required to purchase insurance that covers work-related injuries but are not required to offer health insurance.

How Workers’ Comp Works

When an accident happens on the job, it’s important to tell your employer and fill out a workers’ comp claim form. Some states require the incident be reported in 30 days or less. Reporting the incident is step one.

Jim Terry attorney and partner of Terry and Kelly, PLLC notes that it’s always best to make the report right away – the injury could get worse or be harder to prove over time. Telling your employer verbally is never enough, added Nathan Morris. “Detailing the injury via email is best so you have a date stamp. Print your sent email and any email correspondence about the accident following.”

The next step is to see a doctor – some employers require it. Don’t downplay your injury; doing so could weaken your case. Get a Report of Work Ability (RWA) form from your doctor.

“Most people don’t realize how important the RWA form is,” said Nathan Morris.

An experience rating will be an integral part of the process and is defined by the National Council on Compensation Insurance (NCCI) as “a method for tailoring the cost of insurance to the characteristics of an employer or risk.” Keep in mind, the method of tailoring varies from state to state. For example, California uses a merit rating system. Nevada and Arizona refer to the NCCI for determination.

In rare cases, a prehearing or mediation will be needed, followed by a hearing in cases in which an agreement can’t be made with the insurance company – these are the final steps.

After the claim is accepted, payment is made. If it can’t be made in time to cover medical expenses, many states will reimburse you costs associated with payment.

In Texas, payment is made by check, electronic funds transfer, or an access card program, added Jim Terry. The amount you earn is based on the type of benefit you’re granted. The length of time benefits are granted varies between states, however, typically there is a limit unless you are granted permanent disability benefits.

Determining Workers’ Compensation Qualification

How do you know if you qualify for workers’ compensation? There are two types of typical workers’ comp claims, notes Nathan Morris, “either an injury or an illness/disease.” Whether or not you qualify depends on if the workers’ comp system sees your injury as “something that was caused as part of your job and happened because of something that is part of your job.” He went on to explain:

The system defines an injury as a “sudden and traumatic happening producing an immediate or prompt result established by medical evidence.” It’s a verifiable event that causes harm. If the injury cannot be proven, it’s admissible.

Closing Notes

All three lawyers noted that a big concern about workers’ comp for employees is that it could be a drawn out or complicated process. If you’re an injured employee who does not report your incident right away, this could be the case. The process is simplified when you follow it directly as your state advises. Concluding our interview, Nathan Morris suggested documenting the actions you take during the process. “Keep a folder of dates, who you spoke to, and what the conversation entailed. You may not to recall some of this information later in the process and having that folder will help you prove a case in the event you ever needed to go to court over the issue.”

Disclaimer: This information is not a substitute for legal advice.  Laws change from time to time, so if you are injured, protect your rights and call today at 1-800-598-2440 or contact the Womick Law Firm online.

For more information on this blog, please click here.

Time to Prepare for Winter Weather Driving

Winter weather is just around that corner, and that means so is winter driving. Be prepared for the snow and ice, and reduce your risk of an automobile accident, by getting your vehicle ready now. The following provides some information on what steps to take, and what you can do, should you still experience an accident in Wisconsin this winter season.

Tires and Traction

Snow, ice, slush, and remnants of fall leaves can create some pretty slick surfaces for drivers. To make matters worse, rutting on the roads can occur, making it difficult for smaller vehicles to maneuver their way out of danger. Improve your traction by ensuring you have enough tread on your tires, and by switching out your all-weather tires for snow tires as the weather starts to get colder. Alternatively, you can use tire chains when the risk of skidding on slick roads is high due to snowfall and ice. Keep in mind, however, that you will need to remove the chains when they are not needed since it is prohibited to use tire chains in non-slick conditions.

Vehicle Winter Maintenance

Tires can help your car stay safely on the road, but there are still many other winterizing maintenance tasks to attend to. For example, you need to ensure that your car battery is checked since cold weather tends to drain some of their energy. Fluids should be checked, filled, and flushed, if necessary. Brakes should be checked and changed, if needed, especially since the slick roads can make stopping even more difficult. Also, if you do not need to change tires, be sure to check their pressure since they can deflate some once the weather starts to turn cold.

Emergency Preparedness

Preparing for winter should not stop with just maintenance and tires. Instead, you should plan ahead and pack a winter weather survival kit in your car, just in case you ever are stranded during the winter. Items most recommended include a flashlight, jumper cables, water, non-perishable food, extra clothing (including socks and gloves), a map, a list of emergency numbers, phone charger, flares, extra warm blankets, cat litter, and an ice scraper. Also, know how to decrease the risk of long waits in adverse weather (i.e. letting others know you are leaving and when you arrive at your destination).

For more information about winter weather driving, please click here.

Personal Injury Risk Increases In Winter

Image of Evening, bad condition road car crash. Grey sky without sun

The risk of personal injury rises in winter due to holiday parties where alcohol in consumed and winter conditions like snow, ice and slush that increase the risk of car accidents and slip and fall accidents.

The risk of being in a car accident increases in cold / winter weather for several reasons:

  • Snow, slush and ice on the roads. Black ice* in particular is very dangerous because it cannot be seen.
  • Many car owners do not equip their vehicles with winter tires or let their tires’ tread become bare.
  • Lack of experience or caution while driving in winter conditions
  • More darkness decreases visibility
  • Winter storms** decrease visibility

*Black ice is created on the road after a heavy snowfall overnight. With the sun rise comes an increase in temperature and the snow melts to water. If the water has nowhere to drain it remains and the roads / sidewalks and re-freezes into a transparent layer over the road / sidewalk when night fall hits again. For this reason black ice is responsible for an increase in both car accidents and slip and fall personal injuries.

**Ice and snow storms increase personal injuries by blanketing outdoor surfaces with ice and snow. During the storm visibility is dramatically decreased, making it very difficult to see clearly while driving. Even after the storm has ended there is a risk of trees and power lines falling from the weight of the ice and snow. If a person is struck by a tree branch or power line there is a risk of serious injury including traumatic brain injury and electrocution. It is best to avoid going outside in the middle of a winter storm.
Winter weather slip and fall accidents

Slippery parking lots and sidewalks are very common in the winter. With snow, ice and slush on the ground the risk of a slip and fall accident increases dramatically. Businesses and governments have a responsibility to clear and salt ice from their roads, parking lots and sidewalks so that pedestrians don’t slip and fall on their property.
Winter weather and drunk driving accidents

People tend to drink more in cold weather but particularly in November at Thanksgiving and throughout December at holiday parties and New Year’s Eve. The more people becoming intoxicated, the more there is risk for drivers getting behind the wheel while intoxicated. This decision dramatically increases the risk of car accidents. Always plan to have a designated driver when attending a holiday party.

If you or a loved one was injured in a winter weather related accident due to the actions of a drunk driver or the failure of a business or government agency to clear ice from their roads or sidewalks you may be entitled to compensation for your medical expenses, pain and suffering and more. Contact a personal injury lawyer today; he or she may be able to help you get a settlement and help you get back to enjoying the holidays.

For more information, please visit Lawyers.com.

How Do I Prove Medical Malpractice?

Young doctor and businessman have a meeting

A medical malpractice lawsuit is often characterized as a “battle of the experts,” as in expert witnesses. Here’s why.

When a doctor or other health care professional makes a mistake that ends up causing harm to a patient, that error can (though it doesn’t always) lead to a viable medical malpractice claim. So let’s assume that you’ve done a little research, you believe in your case, and so does your lawyer. Keep in mind that establishing a doctor’s liability for harm to a patient is a complex process, and you and your legal team are going to be in for a fight. So let’s look at what it takes to prove a medical malpractice case.

The “Medical Standard of Care” and “Medical Negligence”

There’s more to the larger definition of medical malpractice, but in the language of the law, proving medical malpractice usually comes down to:

  • establishing the appropriate “medical standard of care,” and
  • proving that the defendant doctor breached that standard of care (this breach amounts to “medical negligence”)

In simpler English, that means:

  • establishing what diagnosis, course of treatment, or procedure was medically appropriate considering all the circumstances, and
  • spelling out exactly how the defendant doctor fell short of meeting that standard when treating the plaintiff.

“It should come as no surprise that the defense isn’t going to just sit on its hands while the plaintiff’s expert attempts to prove that medical malpractice occurred. Instead, the defense will offer up its own expert to dispute (and even attempt to discredit) the opinion of the plaintiff’s expert.”

Obviously your medical malpractice lawyer is going to be taking the lead in formulating the right strategy for your case when it comes to proving liability. But in any medical malpractice case, a big part of that strategy is going to consist of picking the right expert medical witness(es) to establish the two key elements mentioned above.

For example, if the plaintiff is a 55-year-old lymphoma patient in Michigan, and the defendant is an Ann Arbor oncologist, chances are that the plaintiff’s team would retain as an expert medical witness another Michigan oncologist who has experience treating lymphoma patients.

After establishing his or her credentials and expertise, this expert would offer an opinion on the type and level of care that was required under the circumstances (the medical standard of care). In other words, what would a similarly-trained, reasonably prudent oncologist in the same medical community have done while treating this particular patient under these particular circumstances? Next, the expert would offer detailed, often complex testimony on precisely how the defendant doctor fell short of meeting the appropriate standard of care.

So, much of the injured patient’s liability argument is going to depend on the testimony of the expert medical witness(es) retained by the plaintiff’s legal team. And it’s not just the expert’s opinion that matters. Is the expert qualified to offer that opinion? Does the witness’s “expertise” come from years of hands-on medical practice in the same area of medicine, or from medical journals and academia? How well can the expert convey his or her opinion and present complicated medical evidence to the jury in an effective and easy-to-digest manner?

The “Battle of the Experts”

At this point it should come as no surprise that the defense isn’t going to just sit on its hands while the plaintiff’s expert analyzes and critiques the defendant’s action (or inaction) in an attempt to prove that medical malpractice occurred. Instead, the defense will offer up its own expert (or team of experts) to try to establish that the doctor’s decisions and conduct did in fact measure up with the medical standard of care, and also to dispute (and even attempt to discredit) the opinion of the plaintiff’s experts. This is why medical malpractice trials are often described as a “battle of the experts.”

Questions for Your Attorney

If you’ve got questions about the best strategy for establishing the doctor’s liability in your case (and the ins and outs of retaining and working with an expert medical witness) an experienced medical malpractice attorney will have the answers.

Here are some topics to touch on when you sit down to discuss your case:

  • How will an expert medical witness’s fees be paid? By the firm or by the client?
  • If we can’t find a local, well-qualified expert witness to testify in support of our position, will it hurt my case to have a doctor from another state testify?
  • What kind of expert witnesses will the doctor’s insurance company retain to try to refute our arguments for liability?

For more information about medical malpractice, please click here.

Disclaimer: This information is not a substitute for legal advice.  Laws change from time to time, so if you are injured, protect your rights and call today at 1-800-598-2440 or contact the Womick Law Firm online.

Do I Have a Medical Malpractice Case?

Render illustration of Medical Negligence title on Legal Documents

Understanding whether you have a valid claim means understanding when a medical error rises to the level of medical malpractice.

When a doctor makes a mistake in diagnosis or treatment, it raises a number of concerns, first and foremost being the well-being of the patient and the impact of the error on his or her condition. Eventually, the incident may raise a different sort of red flag, when the patient asks whether the doctor’s mistake amounts to medical malpractice. The answer may be more complicated than you might expect. That’s the focus of this article: understanding when an error in the healthcare setting can lead to a valid malpractice claim.

What is Medical Malpractice?

There’s a lot more to a viable medical malpractice case than merely a mistake on the part of a health care professional or facility.

Here’s an overview of the different elements that must be in place — and that, when in dispute, must be established through evidence and testimony by the plaintiff and his or her legal team — in order to bring a successful medical malpractice lawsuit:

  • the existence of a doctor-patient relationship
  • the provision of care (which includes decisions, treatment, and the failure to treat) that fell below the accepted medical standard of care (a “breach” of the standard of care that amounts to “medical negligence,” in the language of the law)
  • a causal connection between the care provider’s medical negligence and the patient’s harm, and
  • quantifiable harm (“damages”) to the patient as a result

In some ways, defining medical malpractice means defining these elements, so let’s take a closer look at a few of them — specifically, those upon which the success of a medical malpractice case typically hinge: the “medical standard of care” and the doctor’s (or other care provider’s) breach of that standard (“medical negligence”).

It’s the plaintiff’s medical expert who provides the key evidence, through detailed (and often quite complex) testimony — painstakingly walking the jury through the plaintiff’s condition, the appropriate course of treatment or diagnosis methodology, and exactly what the doctor did (or did not do) at each stage of care.

The Medical Standard of Care

The issue of the appropriate medical standard of care to apply is often one of the most contentious in a medical malpractice case, and proving this element is usually a two-pronged task that includes:

  • establishing the appropriate medical standard of care that should apply to the patient’s case, and
  • showing in detail exactly how the defendant (the doctor or other care provider) fell short of meeting that standard.

In a nutshell, the medical standard of care is the type and amount of skill and attention that a prudent, similarly-trained health care professional, in the same medical community as the defendant, would have provided to the patient. That’s a lot of “legalese,” but that’s because it’s a complex concept.

Basically, the (simplified) question here is, what are the accepted practices surrounding the medical procedure or course of treatment that led to the alleged mistake? And the answer is almost always provided through the testimony of the plaintiff’s expert medical witness(es), usually doctors who have expertise with the patient’s condition, and who practice medicine in the same geographic area as the defendant doctor.

Medical Negligence

Next, the plaintiff’s team needs to establish how the medical standard of care was “breached,” meaning exactly how the defendant doctor fell short of meeting the standard when providing care to the patient. Again, it’s almost always the plaintiff’s medical expert who provides the key evidence, through detailed (and often quite complex) testimony — painstakingly walking the jury through the plaintiff’s condition, the appropriate course of treatment or diagnosis methodology, and exactly what the doctor did (or did not do) at each stage of care.

It’s important to note here that, as the definition of “medical standard of care” indicates, an error may well occur in the treatment setting even as the doctor’s decisions and conduct remain in line with the medical standard of care. Perhaps the decision or the procedure was incredibly complex from a medical or practical standpoint — maybe it even came with known risks that were properly disclosed to the patient, and the “error” was an offshoot of those risks.

Finally, It’s not enough that your doctor made some sort of mistake. The plaintiff’s expert witness(es) will also need to prove a causal link between that mistake and measurable harm to the patient. In other words, it needs to be shown that were it not for the error, the patient would not have experienced a worsening of his or her health. Maybe the error resulted in unexpected complications or new health problems that now require additional medical treatment. Maybe the error was more of the diagnostic variety, and the defendant’s failure to identify a health problem means that a critical treatment window is now closed. In any event, unless the patient suffered some measure of harm because of the doctor’s error, there’s no medical malpractice case.

Questions for Your Attorney

If you’re thinking about talking to an attorney about your potential medical malpractice case, keep in mind that you probably won’t need to worry about paying for representation at the outset. Most medical malpractice lawyers take cases on a contingency fee basis. Besides the fee agreement, here are a few other things you might want to ask about when you sit down to talk with an attorney:

  • I traveled to another state for medical treatment. Can I file a malpractice suit in my home state, or do I have to file in the state where I received treatment? Can you represent me in either state?
  • Does our state have “tort reform” laws that limit how much money I can get in a medical malpractice lawsuit?
  • Is there a time limit for filing a medical malpractice lawsuit? What if I didn’t know about my doctor’s mistake until years after I was treated?

For more information regarding Medical Malpractive, please visit Lawyers.com.

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