AM I LIMITED TO GETTING WORKERS COMPENSATION?

During the last week of May of this year (2010) alone, there were two serious construction site accidents involving falls from significant heights. One involved a worker at a residential building falling fifty feet while he was working on the building’s steel framework. The other involved a worker at the Throgs Neck Bridge.

The first worker died after falling fifty feet. The bridge worker fell 15 to 20 feet off a ladder and was seriously injured.

With respect to the worker that died, officials indicated that it seemed as if he was not wearing a safety harness ! It is precisely this point to which we direct our attention.

There are several facts that make accidents at construction sites unique in the area of Personal Injury Law in New York:

• Construction site accidents are among the most frequent accidents that occur;
• The resulting injuries are among the most serious that occur;
• Public policy is very inclined to seek protection for injured workers and their families;
• the law, especially with respect to liability (who is responsible for the accident that occurred) is not at all necessarily what the layman might think it is–the law can be extremely complex.

The fact that the worker that fell and was not wearing a safety harness should not, and does not, eliminate the possibility that the worker or his family will have a THIRD PARTY LAWSUIT available to him. This would be in addition to any workers compensation claim the worker or his family might have.

It is truly esential when dealing with a construction site accident that a personal injury attorney, in addition to a workers compensation attorney, be consulted. As we have noted on previous blog postings, this could mean very substantial differences to the injured worker and his family. Because of the law’s complexity in this area, be very certain the Personal Injury Attorney chosen is well experienced in this important area of law.

THE PERSONAL INJURY CASE WHY PERSONAL INJURY CASES TAKE SO LONG: Part I – PRE-INTAKE PHASE

From a purely business point of view, this phase of a case may well be the most crucial to the attorney. In the field of personal injury law, cases are routinely taken on a “contingent fee” basis. This simply means that an attorney will not earn or receive any fee for his work unless there is a successful conclusion to the case, and the client receives some amount of monetary compensation. It stands to reason, therefore, that the decision as to whether or not to accept a matter into the office is of vital financial importance to the attorney. Too many cases accepted, that end in a failure to obtain compensation, will lead not only to unhappy clients, but will also lead, eventually, to an abbreviated life span for that law office.

Through diligent and meticulous questioning, the experienced attorney will delve into various aspects of the matter being presented by the potential client.

Questions relating to time, location, parties involved, conditions at the scene, preceding events, injuries sustained, relationships of parties and myriad other questions are all designed to see first, whether there is a viable case and second, whether the case has the possibility of ending in a way that both the client and the attorney can view as “successful.”

Issues involving Statues of Limitations (legal time limits for bringing a case), Damages (injuries suffered), Liability (fault of each party involved) and Coverage (available funds from insurance or other readily available sources)are all of pivotal importance to the experienced attorney at the Pre-Intake stage. At The Orlow Firm we have been handling personal injury cases in New York City for over 30 years.

THE  PERSONAL  INJURY CASE: WHY PERSONAL INJURY CASES TAKE SO LONG: Introduction

One of the inevitable questions a new, or potentially new, client will ask is how long can he or she anticipate it will take until their case is finished.   The honest answer is seldom welcome: though cases have been known to finish in a matter of months, these are the very rare exceptions.  The client should realistically expect the case to last two to four years, with two and a half to three years being average!

It is fair for the client to wonder why a case should take so long.

The purpose of  the articles in this series is to make an attempt to explain why such a seemingly long time is needed to complete this task. At The Orlow Firm we want our clients to understand every aspect of their case. While the explanation may not alleviate the distress at the long haul involved, it will, hopefully, clarify the reasons and thereby give the client a basis for seeing at least some benefit to this lengthy time factor.

Our New York City Personal Injury Attorney series will begin with the “Pre-Intake” phase, followed by “The Intake”, “Beginning Litigation”, “Discovery” and then “Settlement or Trial”.

Very few venues in our society can top the sports arena as sites of accidents resulting often in serious injuries.

The subject of the injury may be either a participant in the sport, or an observer of a sporting event :  The race car driver, the wide receiver, the baseball player sliding into third base, going for the lay up;  or being hit by a foul ball in the bleachers, injured by an out of control race car, slammed by a wild hockey puck into the stands.    More disturbing, the little leaguer injured in any of a wide variety of sports engaged in by youngsters, and supervised by well meaning volunteer adults.  Add to this the myriad sports engaged in by school teams at all levels of age and proficiency, and what emerges is a plethora of sources for voluminous potential litigation.  Just imagine, a lawsuit for every injury incurred in the sporting arena !

Enter the doctrine of “Assumption of Risk”!

What this doctrine essentially means is that a person may not recover for any injury which that person sustains, when that person voluntarily exposes him or herself to a known dangerous activity, event or possible consequence of such activity or event.   Being tackled, flying pucks, speeding baseballs, outfield collisions, race car crashes–all known and anticipated possibilities to anyone participating in, or watching the event..  Injured by one of these or literally scores of other “every day” sporting  mishaps,  and you want to sue–“fuggedaboudit”!!   “Assumption of Risk” – you knew, or darn well should have known, about the risks before you started.   The courts will not be sympathetic.
Of course, the doctrine of “Assumption of Risk” does not, by any means, eliminate each and every injury incurred during the course of a sporting event from being litigated.  Especially in the case of younger athletes and school age children, the courts will look to factors that may well overshadow the “Assumption of Risk” doctrine.
The child injured when sliding into third base?   Was the coaching “negligent”?  Was the child properly taught how to slide,  minimizing potential  injury to him/herself or the opposing team’s player?  Did all the equipment used meet the required safety standards?  Was the base movable and detachable?  And of course, these issues can, and are, raised by experienced attorneys, in every situation where a child in particular, but adults as well, are seriously injured in a sports accident.  While the doctrine of “Assumption of Risk” looms very large indeed, in the field of sports injuries, a close examination of legitimate additional reasons for the injury having occurred should be pursued in all such potential cases. If you feel that this includes you please contact one of our experienced New York City Personal Injury Attorneys to assess your situation.

LAWSUITS BY PUBLIC EMPLOYEES vs. LAWSUITS BY

EMPLOYEES OF PRIVATE EMPLOYERS

In every lawsuit based on a party’s “negligence“, in addition to a recovery for “pain and suffering”, the injured party is entitled to recover for the amount the injured party paid for medical costs and for the loss of future earnings. A person with such a lawsuit who is in the PRIVATE sector has any eventual award they win reduced by any reimbursement they have received, or will receive, through such vehicles as medical insurance, disability payments or disability pensions. This stands to reason: the law does not allow a windfall to the injured party by permitting “double dipping”.

This was not so with New York PUBLIC sector employees.

Until just November, 2009 any New York PUBLIC sector employee, suing any municipality or subdivision, could recover for medical costs and future earnings regardless of the fact they already received, or would receive in the future, reimbursement for those items from some other source, such as a union disability pension or fund. A true “double dipping” windfall. This situation has ended by act of the New York Sate legislature. The situation for the Public sector employee is now the same as for the Private sector employee (and likewise, for the Private sector employer and the Governmental employer) “double dipping” is over, for everyone! In this time of deep cuts in all governmental budgets, New York City alone stands to save about fifteen million dollars this year because of this new legislation. Small wonder this legislation passed almost unanimously in both houses of the New York State legislature.

Are Strip Searches Allowed in New York Schools?

Increasing violence and other illegal activity occurring in our schools has seen the proliferation of “ZERO TOLERANCE” policies in many New York schools and in entire school districts around our nation. These policies, of necessity, very often involve the search of a student by New York school officials who seek to find out if the prohibited item, whether a weapon or an illegal drug, is in the student’s possession.

The question arises as to when such a search is permissible and, even more seriously, how intrusive may that search become. In June, 2009, the United States Supreme Court decided a case involving a 13 year old school girl (Susan). Another student had accused Susan of giving her drugs. The suspicion was that Susan had brought prescription strength ibuprofen to school. School officials (two females) ordered Susan to strip to her underwear, and then pull her upper and lower undergarments away from her body to see if the suspected drug was on Susan’s person. The judge that wrote the opinion for the court called this search an “…embarrassing, frightening and humiliating search…..” The decision of the Court did not give school officials a clear cut guideline to determine if a strip search is permissible. It rather set forth some guidelines that may well continue to make it very difficult for school officials in the future to decide whether or not a strip search would run afoul of the law. The guidelines the Court seemed to establish as factors:
–the extent of the danger of the contraband in question (for example: ibuprofen vs. heroin);
–how well founded is the suspicion that the contraband is hidden in an intimate place.

As Justice Souter wrote in deciding that this particular search was Constitutionally ILLEGAL:: “The content of the suspicion failed to match the degree of the intrusion” especially in light of the “nature and limited threat of the specific drugs.”Some school districts, such as the New York City Department of Education, simplify matters and ban such strip searches under any and all circumstances. Do keep in mind that as far as searches in general (not just strip searches) are concerned, the Constitutional requirements to allow a search by school officials (“a moderate chance of finding evidence of wrongdoing”) are LESS demanding than those that must be followed by the police (“Probable Cause”). Even an attempt to simplify this area of law, as we tried to do here, indicates the potential complexity involved when dealing with searches of all kinds. The services of a well seasoned New York City attorney, knowledgeable through experience in this difficult area of law, at as early a stage as possible, is invaluable in protecting your rights.

As Reported by the New York Times, A construction worker died after falling 125 feet when a tall construction lift toppled and struck a downtown Philadelphia apartment building, the authorities said. The investigators are looking to see if the construction worker who fell, was properly harnessed and all safety procedures were followed.  According to witnesses the machine operated by the construction work toppled when a city sidewalk grate gave way.

A Notice of Claim has been filed.

Experienced construction accident attorneys should immediately begin to investigate the procedures that we in place, the safety equipment as well as the construction equipment, and immediately question all witnesses.

The recent horrific incident in which a young middle school boy was attacked and set on fire by five classmates brings to the fore the very real and prevalent problem of school violence and bullying. Who is responsible for the safety of your child in school if he or she is the victim of violence while attending school?

The answer is not always simple. As a general rule, school authorities stand in the place of parents during school hours and, as such, are responsible for the safety and well being of your children while under the school’s control, both on and off the grounds of the school (such as on a school trip).

An attorney, in determining whether a lawsuit against school authorities is viable, will have several questions: where did the incident take place; has there been any prior incident between this victim and the perpetrators, of which the authorities were aware; how common are incidents of this sort in this school; does the school have regular security protection such as guards or monitors, and were these security personnel at their posts at the time of the incident, etc.

It is very unlikely that the facts of any two cases are exactly alike. The difference between a viable case, or a matter that will not yield a basis for litigation, can be the ability of the attorney considering all the surrounding circumstances and simply knowing the correct questions to ask!

Visit our website http://www.OrlowLaw.com

MANY CALL THEMSELVES PERSONAL INJURY ATTORNEYS

In New York State an attorney is not permitted to say that they “SPECIALIZE” in any particular area of law, “Personal Injury Lawyers” included. Nevertheless, very large numbers of attorneys do, indeed, limit their practices exclusively to a particular area of law such as “Personal Injury”. So why the prohibition? The thinking is that, since no tests or common standards exist to establish qualifications to be a “SPECIALIST” that, therefore, the use of the term by attorneys of widely varying qualifications could end up misleading the public.
The result, while shielding the public from succumbing to mislabeling, does place a burden on those seeking legal advice to exert a serious effort in identifying a fully qualified attorney to represent them in their legal matter, whether a “Personal Injury” matter or other.
While using the term “SPECIALIST” is impermissible, it is permitted to, for example, hold yourself out as a “Personal Injury Attorney in New York“. This can lead to misleading a potential client unless that client is fully aware that there are vast differences in the lawyers that present themselves as “Personal Injury Lawyers” to the public.

ADVICE ON HIRING A PERSONAL INJURY LAWYER IN NEW YORK

Word of advice: spend a little time beforehand finding out about attorneys you might want to hire, and you might save yourself much aggravation down the line. The Internet is a source like no other we have ever had. In short order,  it can provide information about the background of an attorney: her years of practice, her education, his community activities, positions she has held, opinions of past clients and a wealth of other information that can inform you whether that person would represent you in a way that you want.

BE CAREFUL OF THOSE  “THE BEST” ATTORNEYS IN NEW YORK

One other point: Some very large Personal Injury Law Firms have one or two “star” lawyers, held out to the public because of their fame. This will most likely NOT be the attorney handling your matter. That firm may be so big and so busy that the “star” may not even be available for ready consultations. Know what you are getting ! The competence of every lawyer in the firm is important to you.

This question is not as simple as it may sound.   Under most circumstances, if you suffer an injury and another person shares some or all of the blame, then a lawsuit against that individual seems clearly your right.   It does not necessarily work that way in motor vehicle accidents in New York State.

New York State has made a tradeoff.   Regardless of whether or not and individual is responsible for a motor vehicle accident that occurred, that individual will be entitled to payments for his/her medical costs and lost  wages, and some other expenses as well.  For  passengers in vehicles, these expenses will be paid  by the insurance company of the vehicle in which you find  yourself.   Since “fault” is not an issue, these payments are known as “NO FAULT” coverage.

However, in return for this guaranteed payment for medical expenses and lost wages, the traveling public had its right to sue curtailed !   A person may only sue if the injury he/she sustained is a “SERIOUS INJURY”.

What is a “SERIOUS INJURY”?   That is an injury that is defined by the statute.  It can be specific: any fracture (broken bone) meets the requirement–or as lawyers say, it meets the “threshold” permitting a person to sue.  More troubling, the acceptable injury may be much  more vague (see below).   What is clear is that injuries that are passing in nature, and do not involve significant permanent damage, will probably not meet the “threshold”.

Here’s the problem. If a person sues regardless of the seriousness of his/her injury, and the party being sued asks the court to throw out the case  because the injury is not serious enough, the court has the right to “dismiss” the case if the judge decides the “threshold” is not met..   And this can happen a year or two after the case has begun, at which point a significant amount of time, effort and expense has been invested in that case, which then is all lost !

Bringing a lawsuit always requires an car accident attorney well versed in the field of law involved.   This is certainly true in a case involving such a potentially confusing area as MOTOR VEHICLE ACCIDENTS.

Statutory Definition of “Serious Injury”

“Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Posted by New York City Injury Lawyer Steve Orlow