Oregon Injury Attorney Blog

SUVs Do Not Fare Well in Crash Testing

Thu, 16 May 2013 08:42:02 -0800

It is natural to assume that the larger a car, the safer you are. However, CNN recently reported on several popular compact SUVs that did poorly on crash tests conducted by the Insurance Institute for Highway Safety.

The test, known as the "small overlap" frontal crash test involves the vehicle hitting a barrier at 40 miles an hour with just a quarter of the front bumper. This is so the impact can occur outside of the crash safety structures that are built on most newer cars. Conducting these tests also makes since given that small overlap collisions account for a quarter of all road collision fatalities. Another factor adding to the mix the vehicle's motion after impact. Because the off-center crash spins the vehicle, where the car goes, the occupants follow. Someone in the car is moving side to side, and that means they are not going to catch an air bag.

I have represented folks in side impact and front impact collisions. When the body, especially the head, is exposed to this force, the head is not thrown back and forth like in a rear end collision, but in a rotational manner. Many doctors will tell you that this makes for a more significant injury.

Almost at the same time I came upon the CNN article, the Oregonian reported a crash in downtown Hillsboro involving a compact SUV. This intersection crash resulted in a rollover of the SUV, with both parties claiming they had a green light. It sounds like someone was moving pretty fast, especially for a downtown intersection. Like many intersection collisions, liability is often contested, and often shared.

The Insurance Institute for Highway Safety has a great website, offering tips on crash ratings for older cars, booster seat ratings, and interesting information on young driver licensing systems throughout the United States.

Federal Judge Nixes Movie Download Lawsuit Tactic

Wed, 08 May 2013 08:29:53 -0800

I am often asked about lawsuit abuse, which is understandable, given my profession. Years ago, it was the tobacco litigation. People would often ask, and for good reason, "How can somebody sue a tobacco company when they knew the health risks of smoking, and voluntarily chose to use cigarettes?" I would share my experience in attending presentations by the attorneys who pursued these cases, and many times, the reaction was, "I didn't know about that." Some people still disagree with the theory of the case, but often they have a different opinion after knowing the facts.

One of my frustrations is that people don't really know the true nature of lawsuit abuse. The last time I checked, civil court filings have decreased steadily in the last 20 years. Most of the litigation in federal court involves huge corporations suing each other over copyright infringement and other commercial disputes. In fact, the Oregon Judicial Branch and others have enacted rules in order to encourage civil jury trials, and there are programs designed to allow younger lawyers to try jury cases because of the lack of opportunity that currently exists.

The Oregonian recently reported on a case that illustrates corporate law suit abuse. A Salem lawyer sued over 650 people, accusing them of illegally downloading Steven Seagal movie. Many of the defendants never heard of the movie, and have no recollection of downloading it. Some of them didn't even know about the program that allowed file sharing.

Aside from the factual issues, the plaintiff's lawyer attempted to join all of the defendants in one suit. In throwing out the suit, the court noted that the plaintiff avoided paying $215,250 and filing fees, instead paying only $1400. The court also chastised the plaintiff for seeking a $7500 settlement in exchange for dismissal of the lawsuit.

It's the "bad apple" analogy. There are many lawsuits that raise valid issues, and although it should be a last resort, those kinds of suits are appropriately before the court. Jurors hear these cases, and essentially act as a branch of the Government in deciding these disputes. In my mind, this is the most direct form of democracy we practice. We do not elect people to make these decisions, or push an agenda. We make the decision ourselves. Hopefully, courts will continue to stamp out these ridiculous suits so that the legitimate disputes can be resolved in a way that other nations of the world and envy. Those are lofty words, but true.

A Tough Week for Oregon Workers

Tue, 30 Apr 2013 09:15:47 -0800

It has been a tough week for workers in Oregon. Last week, the Oregonian reported a fatal workplace injury involving a cleaning contractor who fell into an industrial meet processing blender. The State of Oregon OSHA is investigating the cause of the accident.

On Monday, a highway flagger was struck by a vehicle on Highway 101 between Warrenton and Seaside. Details regarding the worker's condition are still developing.

These two accidents involve issues of Workers' Compensation and "third-party claims." The family who lost their loved one in the meat processing plant accident may claim death benefits under the Workers' Compensation Act. The surviving family members may also have a claim for wrongful death against the meat processing plant because the worker was not an employee of the meat processing plant, but worked for an independent contractor hired to clean the facility. This makes the processing plant a "third party," hence the "third party claim."

This claim would be brought under the Oregon wrongful death statute. The statute provides that a personal representative for the estate may pursue an action against the responsible party. The personal representative would have to show that the meet processing plant was somehow negligent in causing the accident. The pending OSHA investigation will have a lot to do with determining who or what caused this accident. If the personal representative is successful in establishing liability, the personal representative can make a claim on behalf of the estate for "pecuniary loss." This type of loss involves the earnings and support that the deceased worker would have provided to his family. Typically, we use economists to calculate and estimate this type of loss. The second loss the personal representative can claim is compensation for the loss of society and companionship with family members. This is the value of the loss of a family member and their contribution to the family unit.

The injured highway flagger is also covered under the Worker's Compensation statute if he or she was in the course and scope of their employment when the injury occurred. The Worker's Compensation claim includes payment of medical expenses, a disability benefit, permanent partial disability benefits, and possible vocational rehabilitation.

The injured flagger may also have a third party claim against the motorist who caused the injury. Again, the injured flagger will have to show that the motorist was responsible for causing the collision. If the injured flagger proves responsibility, or "negligence," then he or she will have a claim for past and future medical expenses, past and future lost wages, and a claim for compensation for the loss of his or her health.

One parting thought. It is hard to imagine how somebody could leave some of the comments appearing in the Oregonian article. I guess its price we pay for the right to free speech.

Federal Court Scolds Social Security Judge

Fri, 26 Apr 2013 15:11:59 -0800

A recent decision out of the Eastern District of Wisconsin harshly criticized the Social Security disability determination process. Using terms like "wholly dysfunctional," the Court went on to note the number of cases filed in federal court, and the ever rising rate of remand. According to the decision, the rate of cases being sent back to the Social Security Administration hearings office is that 83%. The average rate nationally is 45%. A basic primer on the remand process will help you appreciate the significance of this statistic.

If a person claiming Social Security disability receives an Unfavorable Decision from an Administrative Law Judge, the claimant can appeal their case to the Appeals Council. If the appeals Council refuses to review the case, the next appeal is a federal court claim.

A federal court may decide to uphold the hearings decision, grant benefits, or send the case back to the hearings office for further proceedings. Sending the case back to correct errors is called a "remand." Essentially, what is going on in Wisconsin is quite scary. This is because the District Court's finding that over 8 out of 10 times, Social Security is getting it wrong. Keep in mind, this is after the disability claim had been denied twice.

In Oregon I notice that the US Attorney will often agree to send the case back to the hearings level for further development. We work closely with attorneys who limit their practice to federal court appeals of Social Security disability claims. More often than not, the case is sent back for another hearing.

Oregon Department of Transportation Now A Defendant in Tour Bus Crash Case

Sun, 14 Apr 2013 13:44:11 -0800

The recently reported that The State of Oregon Department of Transportation (ODOT) has been named in a suit arising from the deadly tour bus accident on I 84 that killed nine, and injured 38. This suit also includes claims against the tour bus company.

The suit claims that ODOT failed to use strong enough barriers to keep the bus on the road, failed to adequately plow and sand the roadway, requiring an alternate route, and did property warn motorists about the unsafe conditions. There are special rules involved in making a claim against the government. Traditionally, the citizens of a government were prohibited from filing any claims in court against the government. This is known a sovereign immunity. Sometimes you hear the phrase, "you cannot sue the King." However, Oregon statute allows members of the public to bring claims against State and local governments under certain conditions.

In addition to monetary limits on recovery, and notice requirements, the State does enjoy some immunity from liability. In this case, the State will likely argue that it enjoys "discretionary immunity." This defense is available when the State's failure to act was based on a discretionary decision. The reason behind the rule is that the State government is dealing with a limited budget, and has to make choices as to where its funds will go. The plaintiffs will argue that the State past rules and standards regarding maintenance of its own roads, and in failing to follow those rules and standards, was negligent.

The article also mentions that the tour guide company is also a named defendant. If this case gets to a jury, the members of the jury will have to allocate responsibility amongst the several defendants.

What is a Third Party Case?

Mon, 08 Apr 2013 18:57:02 -0800

A Third Party case occurs when you are hurt on the job, but someone other than your employer or a co-worker causes an injury. For example, let’s say you are running an errand for your boss. You are driving back to the job, and some other driver runs into you, and injures you. Then, you have a workers’ compensation clam because you were on the job, and you were hurt. But you also have a claim against that person who ran into you. These are called Third Party Claims.

When you have a third party claim, both you and the workers’ compensation carrier have suffered a loss. You have lost your health, and the workers’ compensation insurer is out money. Because of this, there are special rules that give the workers’ compensation carrier some say in what happens on your claim against the other party.

First, you have to decide whether you are going to pursue the claim, or if you want to leave it up to the Workers’ compensation carrier to pursue the claim for you. This is referred to as Third Party Election. I cannot think of a reason why you would turn the claim over to the Workers’ Compensation carrier, unless you are going to have a hard time proving the other party was at fault, or that you were actually injured.

If you chose to pursue the claim on your own, then you have to keep the Workers’ Compensation carrier informed, and you have to make sure that they are in agreement with any settlement proposals. In some cases, the Workers’ Compensation carrier will agree to taking less than it paid in benefits.

There are lots of rules dealing with this area of the Third Party claim, and if you have a significant injury, and lots of medical bills, it is a good idea to confer with an attorney before resolving the case.

The Phantom Driver and the Uininsured Motorist Claim

Fri, 22 Mar 2013 18:51:30 -0800

I have a case right now involving a pedestrian versus car collision. The only problem is that the car left the collision scene. There is also the case where someone is not hit, but run off the road, and injured. So what can you do? You can file an uninsured motorist claim, but:

There are special rules.

These are known as the “phantom vehicle” case, and the “hit and run” case. A phantom vehicle case is where another, unknown motorist cuts you off, pulls out in front of you, or somehow causes an accident, and leaves the scene. A "hit and run" is just that; someone hits you, and leaves, and you cannot determine the careless driver’s identity. In addition to showing that you were injured, here is what you need to do in order to preserve your UM claim in this situation:

1. Report the collision to the appropriate officer or department within 72 hours;

2. File, with your insurer, within thirty days of the collision, a statement under oath that you have a cause of action (lawsuit or claim) against the person who you are unable to identify, and what facts you are relying upon in claiming that you have a claim against the other unknown driver.
If you were hit by a hit and run driver, you also have to make your car available to your insurance company for inspection. In the case of a phantom vehicle, there has to be some evidence, other than your sworn statement, or a statement from another party with a UM claim, in order to preserve the phantom vehicle claim. This is known as “corroborating evidence.” The best example is a witness to the accident that is not involved in any claim.

This is a pretty tight time line for an injured party. I have often found myself scrambling to preserve a claim when the injured party contacts me at the last minute. It's a good idea to confirm the time limits to preserve these claims with the claims adjuster as soon as possible.

Ear Buds Raising Concern About Hearing Loss

Fri, 15 Mar 2013 09:29:31 -0800

Our office handles occupational hearing loss cases, and given the standards Oregon requires for benefits, these cases present special challenges. Essentially, a worker must show that the exposure to noise at work, more than any other causes combined, is the majority of the reason for the hearing loss. This means that injured workers are forced to contend with other causes of hearing loss, including age, and exposure to noise outside of work. In this part of the world, that means hunting, making fire wood, and yes, even a 60 year old client of mine attending a rock concert!

Another competing cause emerging with the younger set is the increased use of ear buds. I have a pair, and you may too. These are great, and convenient, but apparently, people are blasting the volume so high, that doctors are reporting a trend of younger and younger patients coming in with hearing loss. What used to be a problem that surfaced in patients in their 40's and 50's is now a problem with people in their 20's and 30's.

Generally, 85 decibels is the threshold noise level for potential noise induced hearing loss. Just to give you an idea, a lawnmower is 107 decibels. The ABC reporter went out onto the street in New York City, and tested folks wearing ear buds. He found decibel levels of 95, 105, and even a whopping 109.

I have been using ear buds more and more lately, but now, I am turning it down, and I will be encouraging my family to do the same. Go to www.ear-buds.org for more information.

New Compassionate Allowances for Social Security

Fri, 08 Mar 2013 19:23:00 -0800

Social Security maintains a list of serious health problems that, by their definition, are so severe, that Social Security does not need to fully develop the applicant's work history in order to make a decision on the case. These conditions involve cancers, neurological, immune system, and other serious health problems affecting adults and kids. Recently, the SSA announced the addition of 35 conditions to the Compassionate Allowance program. Social Security has good information, including the actual list, on its site.

Obviously, the intent of this program is to get the application processed more quickly for the most serious of conditions, but is is important to remember that a claimant can assert a condition that is on the list during an appeal. It's probably not too rare that this can happen, given the extraordinary wait for a hearing date.

FDA Issues Tips On Health Fraud Scams

Mon, 04 Mar 2013 12:27:55 -0800

The FDA recently issued a report to help people recognize health product scams. The tips are common sense, and prove the old adage that if it is too good to be true, it is too good to be true.

The medium for scamming people desperate for a cure or help with a health problems has changed, but the scamming has been with us for hundreds of years, if not longer. Just picture the snake oil salesman in the Western movie standing in front of his horse carriage promising everything with with cure all miracle drug.

The risk of injury, however, may be even greater. The article points to FDA laboratory results showing that over 100 illegally marketed dietary supplements contain traces of active ingredients in the weight loss drug Meridia. Spiking your illegal dietary supplement with the active ingredients of another product is bad behavior, but even worse is using a product that was pulled off the market over two years ago. It turns out that Meridia was increasing the risk of heart attack.

The tips are pretty straight forward, and include warnings about ads claiming the ability to cure a wide range of illness, that a product is "all natural," or a "miracle cure." Another interesting ploy is the conspiracy theory pitch claiming that government is getting together with the government to hide information about the miracle cure all.

Folks facing serious health challenges are sometimes desperate to find that silver bullet. If you, a family member or a loved one are tempted by one of these advertisements, check with your doctor or health care provider first.

Teen Driver Accident Deaths Up Sharply

Wed, 27 Feb 2013 12:44:41 -0800

The Governors Highway Safety Association (GHSA) released the findings of a study today, which shows that the number of 16 and 17 year old drivers killed in collisions increased significantly in the first six months of 2012 when compared to 2011. Still, these numbers are apparently better than fatality rates of five or ten years ago.

The study's author attributes the increase to a leveling off of the benefits of Graduated Driver Licensing laws. These are laws that require a permit process for new drivers with minimum hours of driving with a licensed driver, before getting a full fledged license, but then there is more. The license is restricted. Parents of teen drivers are probably familiar with the "Cinderella" law, which is based on the undeniable truth that when it comes to teenagers, especially those behind the wheel, nothing good happens after midnight.

Another factor cited as a possible cause in the increased rate of fatalities is the economic recovery, which is putting more young drivers on the road.

The organization is calling for more education, but only those methods that have been proven effective, as well as more communication between teens and adults. Way back when I was in high school, driver's education was a required course. We had in class study, and behind the wheel training. The in class material included some graphic films about the consequences of drunk driving, much like the skits local high schools show their student body during prom and graduation season. Budget constraints currently prevent this level of driver's education in our local schools.

Here is the link for the actual report: www.ghsa.org

One bright spot: Washington saw an actual decrease in teen driver related fatalities, and Oregon with only a modest increase.

Can An Insurance Company Get To My Social Media?

Tue, 26 Feb 2013 08:35:24 -0800

Everybody agrees that the information age we live in today has fundamentally shifted the way we do just about anything, and litigation of personal injury claims is no exception.

Many courts allow electronic filing, and Oregon is on the move to make its courts electronic. Instead of letters, we send e mails, and our settlement packages are now portable document files, with hyperlinks to videos and other media to illustrate our point, and educate the reader.

When I file a case in court for a client, one of the first things I get from an insurance defense attorney is a request for production of documents. This is a request for documents that are relevant or are reasonably calculated to lead to discovery of information relevant to the case. For example, if you are claiming that you injured your ankle in a car collision, then the insurance defense attorney is entitled to any medical records of treatment for the same ankle prior to the auto collision. That's fair. After all, the insurance defense attorney should be able to look at the difference in the health of your ankle before and after the collision.

In the past few years, however, insurance defense attorneys are asking for all of my client's social media data, regardless of whether it has anything to do with an injury or not. I have even had defense attorneys whip out pictures downloaded from my client's social media site during my client's deposition, asking them about trips, vacations, and activities they participated in after their injury.

I have a social media site, but rarely post to it. If I do, it's pretty boring stuff, or pretty harmless. I am constantly amazed at what people will share on their social media sites. If someone wanted to look at social media data, it would be pretty brief and not very interesting experience, unless they like dog and cat pictures.

I read a recent ABA article which notes a push back from the courts on requiring disclosure of social media posts. It's not safe to assume a court will open the doors to an insurance company to fish around in your social media pond. Still, there are many lessons to be learned.

Lesson One: As I tell my own daughter, when you post something to your social media site, you have to assume that the whole world is going to see it. Sometimes, reminders are in order. We have the privacy settings in place, but those are always changing, and with people having over 1,000 friends, there is a real good chance someone out there is going to see something on your site. Just pretend everything you post is going on a billboard on the main road into town.

Lesson Two: The old rule still applies. If you have a pending claim, don't overstate or exaggerate your limitations to your lawyer, or to anyone else. In addition to video surveillance, which happens more than I care to think, statements, pictures, and even videos are going to be found, and you will be found out.

Oregon State Trooper Link Enforcement Efforts to Roadway Departure Fatalities

Wed, 20 Feb 2013 12:28:20 -0800

The Oregonian reports that Oregon State Troopers will target grant funds in the direction of one of the leading causes of traffic collision deaths, known a s "Roadway Departure Crash." Two thirds of all traffic fatalities in Oregon result from roadway departure crashes, which is defined as an accident involving leaving a roadway edge, or crossing center lines. The Federal Highway Safety Administration estimates a lower figure, 53%.

What are the causes? No surprises:

Speed

Distracted Driving

Since 2009, 13 people have been killed in traffic collision due in part to use of a cell phone. Highway 26 comes to mind immediately when thinking about this kind of car crash.

OSP is planning to direct its enforcement efforts in the most dangerous areas, based upon study of traffic crash data.

NAME OUR NEWSLETTER AND WIN AN I PAD

Tue, 12 Feb 2013 10:25:05 -0800

I am pleased and proud to announce the launch of our firm newsletter coming in March. Of course, we will be providing useful information about what we know, and what we do: injury and disability claims. But that is not all we have to say. Our newsletter will share happenings in our office, including our great people, and the people and places that make our community great.

If you would like to receive a copy of the free newsletter, give us a call, or e mail me at joe@jdblawoffice.com. We will put you on the list.

If you have a story to tell, or suggestions, send an e mail. We would love to hear from you.

NAME OUR NEWS LETTER, WIN AN I PAD!

There were no shortage of ideas for articles for our first issue, but I am stumped on what to call the newsletter. I need your help. What do you call a newsletter that provides information not only on legal issues, but features the great things about our community? You tell me.

Here are the rules:

1. Send an e mail to me before March 15, 2013 with your suggestions. Please include "NEWSLETTER" in the subject line. (I do not want to delete your message in error!) You can give me as many proposed names as you want.

2. With your e mail, include your name, telephone number, and your address.

3. We will announce the winner March 18th, and that person will receive an Apple I Pad.

How to Tell Social Security About Your Prior Work

Wed, 06 Feb 2013 12:57:29 -0800

This post is supposed to give you a tip on filling out your work history when applying for Social Security Disability. The tip is this: describe all of the physical requirements of your job, even if you only have to do those tasks once in awhile. However, in trying to explain this, I got a little carried away, which happens. Below is the "why" behind the tip.

At a Social Security Disability hearing yesterday, a Vocational Expert, what we call a "VE" testified. This happens in pretty much every Social Security Disability hearing. The VE is there to talk about the Claimant's prior work, and then answers hypothetical questions about whether a "hypothetical Claimant with hypothetical limitations" is able to perform my client's past work. Why is this?

A Judge needs to make certain findings, and take certain steps in deciding the claim. One of those findings is to figure out what my client can and cannot do in a work setting. This is called "residual functional capacity." More on that in another blog, but simply stated, the question is, "what can you still do if you had to show up at work day in and day out?"

This is how it works. The Judge may already know what the decision will say on what you can and cannot do. Still, the laws and rules require the Judge to pose questions that give different scenarios about what you can and cannot do in a work setting. The Judge pulls information about your limitations out of your claims file, and from your testimony, or at least that is what they are supposed to do. The VE then applies these hypothetical questions to the Claimant's past work, and tells the Judge whether that "make pretend person" could or could not do any of the jobs that you had done in the fifteen years before your disability began.

Let's use an example that I use all the time with clients. Let's say the Claimant is a logger, and suffered a serious knee injury, and every one agrees that kind of injury will keep that logger out of the woods. In that case, the VE is probably going to say no more logging.

I use the logger example because anyone on in Oregon and Washington knows what loggers do, or they should. But some of us do not have to run up and down hills, and carry cables, and dodge out of way of giant logs rolling down a steep hill. Still, there may be things we do in our jobs that require lifting, carrying, bending, or climbing. So, like I said, when you talk about your past work, be descriptive, and include all of the physical requirements of the job.